President Donald Trump’s State of the Union address last week was long on time and short on surprises. He focused on his usual bugbears of crime and immigration, eliciting groans from Democratic lawmakers. But two sentences tucked in the middle of his nearly 6,000-word speech gave liberals reason to applaud. “As America regains its strength, opportunity must be extended to all citizens,” he said. “That is why this year we will embark on reforming our prisons, to help former inmates who have served their time get a second chance at life.”
A few days later, Trump expanded on this point while addressing congressional Republicans at a retreat in West Virginia. “We can reform our prison system to help those who have served their time get a second chance at life. I’ve watched this, and I’ve seen it, and I’ve studied it, and people get out of prison, and they made a mistake—and not all, some are very bad, but many are very good—and they come home and they can’t get a job. It’s sad, they can’t—they can’t get a job,” he said. “Now the best thing we’ve done to fix that ... is the fact that the economy is just booming. I mean, that fixes it better than any program we can do, anything we can at all. But the economy is so strong now, and so good, and so many companies are moving in, that I really believe that that problem—it’s a big problem—is going to solve itself. But we’re working on it.”
Whether Trump deserves credit for the growing economy or not, his underlying point holds up. There are some indications that the tightening American labor market is making employers less choosy when filling job openings. States like Wisconsin have even expanded work-release programs, allowing people with non-violent convictions to hold jobs outside of prison and earn a wage.
Trump’s emphasis on the issue is striking. On the campaign trail, and in his “American carnage” inaugural address, he depicted a nation beset by crime that only his “law and order” presidency could stop. And in the decades prior, he advocated for more punitive criminal justice system. In 1989, he took out full-page ads calling for the death penalty for the Central Park Five, who were wrongfully convicted as teenagers for a brutal attack on a jogger in Manhattan. In 2002, the courts exonerated the men using DNA evidence, but Trump nonetheless opposed New York City’s plan to compensate them and called the $41 million in restitution “the heist of the century.” In 2016, as a presidential candidate, he doubled down on his position.
After taking office, Trump also dealt the reform movement an early blow by tapping Jeff Sessions as attorney general. The former Alabama senator built a reputation in the Senate as a formidable opponent of efforts to reverse mass incarceration. In his first year at the Justice Department, Sessions rolled back Obama-era policies that sought to reduce excessive sentences for low-level drug offenders and pushed to reduce federal oversight of local police departments. His revival of civil asset forfeiture drew near-universal condemnation from liberals and conservatives alike.
These harsh stances would’ve been praised by Democrats and Republicans alike in the 1990s. Instead, Trump and Sessions find themselves outside the conservative mainstream on criminal justice issues.
Some Republican leaders in deep-red states have taken aggressive steps in recent years to reshape how their own states approach crime and punishment. Georgia has overhauled its criminal code and juvenile-justice system, leading to noticeable declines in its prison population. Texas rewrote its probation and parole guidelines and expanded treatment options for mental health and drug addiction. Kentucky expanded its pretrial services programs as part of a broader push towards bail reform.
At the same time, conservative policy organizations have taken up the cause. The Koch brothers and their network of nonprofit advocacy groups are reform’s most prominent backers on the right, drawing some skepticism from the left. The result is an unusually broad alliance in modern American politics that brings together the Heritage Foundation and the American Conservative Union alongside the ACLU and the left-leaning Center for American Progress.
Credit for this trend’s arrival at the White House apparently goes to Jared Kushner, the president’s son-in-law and and a close adviser. In recent months, Kushner has met with key Democratic and Republican lawmakers in Congress, reform-oriented governors, and advocacy groups. The issue may also carry some personal resonance for Kushner: His father, Charles Kushner, received a two-year prison sentence for tax evasion and other crimes in 2005.
So far, the administration is keeping mum on its exact vision for reform. When asked for more details about the president’s plan, the White House provided a factsheet that described the depth of the problem as well as Trump’s meetings with Republican state officials who’ve tackled the issue in their own backyard. The document contained no specific policy proposals, but those meetings could still provide a window into what sort of policy proposals the Trump administration might favor from Congress. “Kansas improved its juvenile justice system to help make sure young offenders do not become repeat offenders,” Trump noted at a criminal justice summit he hosted at the White House in January. “Kentucky is providing job training to inmates and helping them to obtain professional licenses upon release, and it’s been very successful.”
Proposals like those overlap with policies favored by Democrats, to an extent. Liberals typically focus on preventing or limiting how Americans enter prison in the first place, through sentencing reform, diversion programs, or decriminalization for nonviolent drug offenses. Conservative policymakers, on the other hand, tend to gravitate toward measures that help prisoners successfully reenter society like prison education and work-release programs.
But Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year. While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.
More important, Trump’s lip service to prison reform could be a political boost for reformers in deep-red states. Any serious effort to reverse mass incarceration will take place in the state criminal-justice systems, where roughly 90 percent of American prisoners are housed. By endorsing some type of reform, the president could bolster local efforts against challenges from the right.
Trump’s electoral victory, driven by his fear-mongering over crime, raised fears among many reformers that the moment for taking substantive, bipartisan steps against mass incarceration has passed. Instead, he’s proving that the shift could be more durable than expected.