Yes, policies advancing justice can prevail again in Trump 2.0 

President-elect Trump has been accused of countless things, but never of being predictable.  

Criminal justice policy is a case in point. Few could have anticipated that landmark prison reform stymied under prior administrations, even President Obama, would be enacted in President Trump’s first term.  

Not only that, but around Thanksgiving 2018 Trump leaned on then-Senate Majority Leader Mitch McConnell (R-Ky.) to hold a vote on the First Step Act, a move the senator was reluctant to make because it divided the Republican caucus.  

The legislation was among the furthest reaching for federal prison policy since the Clinton-Biden Crime Bill of 1994; among its myriad provisions, it rolled back mandatory minimums in low-level drug cases and enabled some people in federal prison to earn time off their sentence by completing rehabilitative programs. 

The First Step Act ultimately cleared the Senate with 87 votes and it has been a success.  

A Council on Criminal Justice analysis last year found that individuals released under the Act returned to federal prisons at a 37 percent lower rate than similar people released before the law took effect, and an updated analysis released this week found the results have improved, to a 55 percent lower rate through the law’s first four years.  

During the 2024 campaign, Trump trumpeted the Act in a South Carolina speech and a Bloomberg interview, and his attorney general appointee co-led a coalition of 38 state attorneys general who urged Congress to approve the act. 

Now, much of the country is feeling uncertain about the implications of a second Trump administration, including many criminal justice reform advocates. Such uncertainty is understandable.  

When I first met in 2017 with White House adviser Jared Kushner about the policies that became the First Step Act, even he wasn’t entirely sure his father-in-law would embrace this policy shift, as he recounted in his memoir.  

But what worked once can work again. The formula couples marshaling evidence about what policies break the cycle of crime, rebuild families and expand our workforce with inspiring firsthand testimonials from models of redemption like Alice Marie Johnson.  

Johnson, who Trump pardoned at the suggestion of Kim Kardashian, was featured in his Super Bowl ad in 2020. Indeed, there are reasons to be confident that past can be prologue. 

First, because of his reputation for toughness, Trump is well situated to pull off a “Nixon goes to China” success story again. Even during the campaign, the outlandish suggestion that crime could somehow be solved with a single-day crackdown was coupled with support for legalizing marijuana.  

Second, Trump was elected with a much broader coalition than in 2016, gaining among voters of color and winning 56 percent of the young male vote, a segment that President Biden carried by the same share in 2020. Young men and racial minorities are the Americans most likely to encounter the criminal justice system.  

Criminal justice reform is most popular with young voters, a group Trump and other Republicans are eager to keep moving in their direction.  

At the same time, even amid falling crime rates, Americans are right to be frustrated by persistent pockets of concentrated violence and the broader problem of disorder that degrades our quality of life but does not show up in most crime reports, which focus on serious felonies.  

Trump and his team will face the challenge of reconciling two strains of thought with wide appeal on the center-right: law-and-order and “Don’t Tread on Me.”  

Fortunately, there are many policies like the First Step Act that advance both safety and liberty. Consider, for example, bipartisan marijuana banking legislation that would reduce burglaries of cash dispensaries while also giving consumers the personal freedom to pay for weed with a credit card.  

Another proposal, the bipartisan VICTIM Act, would invest resources into solving a greater percentage of serious crimes. The sharp drop in criminal case clearance rates over the last several decades has frustrated victims and allowed too many dangerous perpetrators to stay on the streets. 

There’s also unfinished business when it comes to fully implementing the First Step Act.  

Still pending in Congress, the bipartisan First Step Implementation Act would make changes such as giving judges additional discretion in applying mandatory minimums to drug cases and allowing people who committed crimes as youths to be reviewed for parole after 20 years behind bars.  

Yet another bipartisan proposal — the EQUAL Act — would end the sentencing disparity between crack and cocaine cases, a failed approach that has produced racial inequity without benefiting public safety.  

Similarly, the bipartisan Safer Supervision Act would empower people to earn their way off probation and supervised release through exemplary conduct, allowing more resources to be focused on those who are a public safety risk.  

Finally, improving policies for veterans involved in the justice system also holds promise, especially with the appointment of former Georgia Congressman and First Step Act champion Doug Collins as secretary of the Veterans Administration.  

Along with the many reasons for optimism, there are also landmines ahead. Unlike the First Step Act, on which Trump and Congress united to focus on the federal system, the perils primarily involve attempts by the executive branch to dictate state and local policies. Washington D.C. too often forgets that fighting crime is primarily a state and local responsibility, and it should remain that way.  

Attempts to dictate state and local policies through executive action and grantmaking in areas such as policing and corrections would detract from this legacy, and more importantly our constitutional order.  

Though the Heritage Foundation has documented how the left has historically given short shrift to the virtues of federalism and limitations on executive and agency edicts, the incoming administration should adhere to these longstanding bulwarks of conservative legal thought.  

But there’s a remedy if they don’t. In 2018, a panel of three Republican appointees on the 7th Circuit Court of Appeals ruled that the Department of Justice lacks the authority to withhold criminal justice grants from localities that have sanctuary city laws.  

Irrespective of the merits of such laws, the court properly determined that agencies cannot unilaterally add grant eligibility conditions that Congress did not specify.  

Still, even if Trump revives this or another proposal also in his Agenda 47 to condition federal funds on the nation’s more than 18,000 law enforcement agencies adopting the “stop and frisk” model of policing that breeds distrust and fails to reduce crime, the Supreme Court will have the last word. Though going down this path would be unfortunate, it would hardly be unprecedented.  

Media admonitions against “normalizing” Trump aside, nothing is more normal in our history than presidents pushing the envelope on their authority or even tearing it open. Executive overreach can have devastating effects.  

For example, President Franklin Roosevelt issued an executive order that tragically resulted in the mass internment of Japanese Americans.  While not of comparable gravity, most recently the Supreme Court determined that Biden did so when he unilaterally expanded student loans. 

However, the First Step Act proved that bipartisan reforms focused on the federal system are achievable and can make America safer. Trump may be unpredictable, but his words proved prescient when announcing his support of the First Step Act: “Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption.”  

Marc A. Levin, Esq., is chief policy counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on X at @marcalevin.