Election rhetoric around the criminal justice issue continues to change though there seems to be a broad agreement between both presidential candidates that criminal justice reform is overdue.

President Donald Trump continues to counter occasional talk of reform with law-and-order rhetoric, which focuses on various left-wing groups he calls Antifa and on the Black Lives Matter Movement.

Trump has accused both groups of inciting riots.

The president also has brought back the divisive anti-immigrant rhetoric from 2016. He smeared Mexican immigrants as rapists, murderers, and drug traffickers, noted Nora V. Demleitner, the lead author of “Sentencing Law and Policy.”

She also serves as editor of the Federal Sentencing Reporter and a board member of the Prison Policy Initiative and the Collateral Consequences Resource Center.

Demleitner serves on the Albermarle County, Virginia, prosecutor’s citizen advisory committee and is a Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University in Virginia.

“There seems to be much less traction for [Trump’s] claims … empirical support is absent as immigrants are substantially less crime-prone than US citizens,” Demleitner remarked.

In 2018, Trump signed the First Step Act, which he said addressed outdated, failed policies long overdue for reform.

The legislation eliminated the three-strikes life sentencing provision for some offenses and expanded judges’ discretion in nonviolent crimes’ sentencing.

It also led to some commutations, including Alice Johnson, who served more than 20 years for a nonviolent drug offense.

“Even though President Trump’s pardons and commutations have been largely politically motivated, the Bureau of Prisons has seen a large decrease, due largely to changes in drug sentences that preceded his presidency and COVID-19 related increases,” Demleitner responded.

While Democratic Nominee Joe Biden has received loud criticism for his role in a 1990s crime bill that devastated African Americans, he has met with families of Black victims of police brutality like George Floyd.

Biden has called for a federal ban on police chokeholds, a new federal police oversight commission, new national standards for when and how police use force, more mandatory data collection from local law enforcement, and more power for the Department of Justice to investigate local police departments, among other changes.

And, as noted by Politico, despite a bipartisan push to reduce the United States’ highest-in-the-world incarceration rate, the prison population decreased only slightly in 2018 to 1.5 million, the most recent year for which data is available.

“If the President were re-elected, we should expect a Department of Justice that throws its resources at left-wing groups but will frequently disregard the threat from right-wing terror,” said Demleitner.

“Much of it will be business as usual, with a focus on immigration prosecutions, drug cases, and healthcare and anti-trust prosecutions. There would also likely be more conflict between progressive big-city prosecutors and their local US attorneys and between so-called sanctuary cities and the federal government.”

Should Biden win, Demleitner believes America could expect a slew of politically motivated pardons and commutations before Trump leaves office.

Whether the Senate will try to push through Trump’s slate of US Sentencing Commission members is unclear.

“They might prove an obstacle for any federal sentencing reform a President Biden wants to see happen. An example here is the final equalization of crack and powder cocaine sentences, which is supported by the science but apparently not politics,” Demleitner said.

For a Biden presidency, much of the change expected could come in funding to the states. It could take the form of mental health and addiction treatment funding or funding for certain types of police training, such as de-escalation.

“The Civil Rights Division should be expected to begin to investigate select police departments around the country and push for consent decrees and federal oversight, as was happening during the Obama administration. These changes would contribute to greater racial equity,” Demleitner further noted.

“Gun regulation has to be at the forefront of the Biden administration as well though that area will create the strongest backlash,” the professor continued.

“Yet there is sizeable national agreement on some restrictions and those may be the fastest areas in which to get an agreement, though much of that will hinge on which party gains the Senate majority.

There are also countless smaller rules that the current justice department changed.

According to Demleitner, many of those, such as guidelines on prosecuting cases, need to be rolled back. “Assessment of the racial impact of these rules needs to be done,” Demleitner added.

“The new administration has to tackle broader issues, such as what a vibrant and non-politicized pardon/commutation regime should look like.

“Biden’s agenda is long, but still it isn’t comprehensive. Since prosecutors run the Department of Justice, it will be essential for non-prosecutor voices to be heard. Reform cannot be limited to drug cases only. It’s important to remember that the part of the criminal justice system the president controls is unique and only a slice of the entire criminal justice system. Funding and DOJ oversight, as well as the involvement of other agencies, such as Housing, Education, and Health, will be crucial in criminal justice reform.”

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Excerpt:
President Donald Trump continues to counter occasional talk of reform with law-and-order rhetoric, which focuses on various left-wing groups he calls Antifa and on the Black Lives Matter Movement. Trump has accused both groups of inciting riots. 

Photo Caption:
“If the President were re-elected, we should expect a Department of Justice that throws its resources at left-wing groups but will frequently disregard the threat from right-wing terror,” said Nora V. Demleitner, the lead author of, “Sentencing Law and Policy.” (Photo: iStockphoto / NNPA)

“Much of it will be business as usual, with a focus on immigration prosecutions, drug cases, and healthcare and anti-trust prosecutions. There would also likely be more conflict between progressive big-city prosecutors and their local US attorneys and between so-called sanctuary cities and the federal government.”

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