Justice Trump'd?

Nov 22, 2016

Four ways the selection of Jeff Sessions just put criminal justice reform in critical condition. 

As the junior Senator from Illinois seeking the Democratic nomination, Barack Obama called for a new criminal justice system based on transparency, fairness, justice, and equity. Central to that push was denouncing a failed War on Drugs that led the US to lock up more people, per incident, than any other country in the world. 

Since his 2008 election, Obama has commuted more sentences of federal inmates than the past eleven Presidents combined, reduced crack versus powder cocaine sentencing disparities, eliminated solitary confinement for juvenile offenders, and directed funding to community based interventions to keep kids out of jails. Organizations like JustLeadership USA emerged to elevate the voices of the formerly incarcerated. Ava DuVernay’s gripping documentary, 13th, exposed the depths of mass incarceration in a way that Orange is the New Black never could. Uprisings over police involved murders in Ferguson, Baltimore, and Charlotte commanded the nation’s attention. And in Congress, a budding bipartisan commitment to sentencing reform provided a glimmer of hope that the grassroots vision of improving the justice system was gaining traction. 

And then: Donald Trump won the Presidency while Republicans retained control of Congress. Today Trump announced that Alabama Congressman Jeff Sessions is his pick for Attorney General. Here are four ways Election 2016 just made criminal justice reform harder to realize: 

Public Money, Private Punishment. In August 2016 the Justice Department announced it was phasing out contracts with private prisons to house federal inmates. Activists decried human rights violations in private prisons while the DOJ cited increasing levels of violence and safety threats as key motivations. 

Although the phase-out only affects about 10 percent of federal inmates, supporters saw it as a step in the right direction. 

However, since the 2016 Presidential election, stocks in private prison corporations like The GEO Group and Correction Corporation of America have soared, adding over $1 billion to market values. It was vindication for the companies who saw record losses after Hillary Clinton announced her rejection of private prisons while on the campaign trail. Lobbying groups such as ALEC have long pressured state and local legislatures to support tough-on-crime policies that can help direct more people into private prisons through its emphasis on free market enterprise. Trump has been a vocal supporter of privatization in general, and private prisons in particular. If Session acts upon Trump’s campaign pledges to restore the law and order approach to policing and increased deportations, we should expect a renewed investment of public dollars into private prisons. 

Trump’s Win is the Ultimate Come Up for the Has Beens. Though it’s not yet clear how he will serve the new administration, Rudy Giuliani has been a close advisor to the Trump team. As Mayor of New York City he aggressively endorsed Stop and Frisk policies that stopped over 5 million people in a 10-year span. The overwhelming majority of those individuals were Black and Latino. 9 out of 10 walked away without an arrest prompting a 2013 District Court ruling that Stop and Frisk practices violate the Fourteenth Amendment’s guarantee of equal protection under law. Despite overwhelming evidence to the contrary, Giuliani convinced his BFF that Stop and Frisk was effective at reducing violence in the City. Earlier this year Jeff Sessions (R-AL) announced his opposition to bipartisan criminal justice reform based on his view that, "My best judgment after many, many years in law enforcement is that bottom on crime rates has been reached and the rise we're beginning to see is part of a long-term trend, not an aberration, and the last thing we need to do is a major reduction in penalties." A Sessions appointment could mean aggressive support for a national stop and frisk practice with limited federal oversight.

You and Your Plug Should Be Concerned. Very Concerned. In 2012, Washington and Colorado became the first states in U.S. history to legalize the recreational use of marijuana. After Election 2016, 6 states and the District of Columbia have legalized recreational marijuana while 28 states and DC legalized medical marijuana. Seventeen states including Connecticut and Vermont have moved to decriminalize small amounts of non-medical marijuana opting for substance abuse treatment over expensive incarceration. As a member of the Senate Judiciary committee, Sessions has vehemently opposed efforts to reduce the amount of time served for non-violent drug offenses. 

In spite of the movement toward legalization at the state level, medical and recreational usage remain illegal at the federal level. The Drug Enforcement Administration (DEA) contends that marijuana is a dangerous drug with “no currently accepted medical use and high potential for abuse.” The effectiveness of states’ marijuana laws rest solely on enforcement and implementation. According to a report issued by the American Civil Liberties Union (ACLU), marijuana accounted for over 52% of all drug arrests with enforcement costs reaching nearly $4 billion per year. Although Blacks and Whites use marijuana at relatively comparable rates, Blacks are four times more likely to be arrested for weed-related offenses. This racial disparity is even greater in states like Minnesota and Iowa where Blacks are eight times more likely to be arrested. Racially disparate arrest rates sharply reduce the number of African Americans legally allowed to operate or work in dispensaries, while expanding the pattern of hyper-incarceration. Though national polls indicate that the majority of Americans support full legalization, the federal government maintains its belief that the most commonly used illicit drug represents a significant threat to Americans’ health. Don’t expect federal law to change anytime soon but do keep an eye on whether Sessions defers to state law or reverses Obama's order not to intervene. 

We Gon’ Be Alright. Of course we will be. In the end, we always are. But acknowledging the resilience that is embedded in our DNA doesn’t negate the hell people will catch in the meantime. As protests erupted in cities across the nation Newt Gingrich supports the creation of a new un-American Activities Committee. President Elect-Trump’s beloved law enforcement expert, Sherriff David Clarke of Milwaukee County, has condemned the Black Lives Matter Movement as a breeding ground for ISIS recruits. Cheerleader-in-Chief Omarosa has declared the administration’s unwavering support for African American churches without acknowledging how the rhetoric of the campaign fueled the recent destruction of Hopewell Baptist Church in Greenville, Mississippi. And both the Anti-Defamation League and the NAACP have condemned the appointment of Steve Bannon as Chief Strategist for the Trump White House. The federal government has traditionally been a source of redress for Black communities faced with indifference and hostility from their local and state governments. As we transition to the post-Obama era, it’s imperative that we address and prepare for what may come. Don’t be afraid, be aware.

DR. KHALILAH L. BROWN-DEAN is an Associate Professor of Political Science at Quinnipiac University where she writes about American Politics, political psychology, and punishment. Find her online @KBDPHD.