Again, while this is an important bill, it is also a modest one. It would only affect a small part of the federal prison population, which in itself only represents about 13 percent of people behind bars. It is a compromise of a previous bill which itself was a compromise. The Fraternal Order of Police only came on board after securing a promise from lawmakers not to make the new sentencing reforms retroactive. The bill also has bipartisan support, from groups as politically divergent as the American Conservative Union to the ACLU and the National Urban League. There’s virtually no political cost to Trump for supporting this bill.
And yet. We’re now approaching the end of this Congress, and it’s increasingly looking like the bill won’t pass the Senate. It isn’t that it doesn’t have the votes — it apparently does. It’s that Senate Majority Leader Mitch McConnell (R-Ky.) doesn’t want to bring it up for a vote. If this were truly a priority for Trump, he could pick up the phone and demand a vote. Instead, he gently prodded McConnell in a tweet, even as McConnell reportedly sent law-and-order Sen. Tom Cotton (R-Ark.) out to whip up votes against it. The president is also considering tying the bill to funding for his border wall, a measure that will likely break up the coalition supporting it.
Trump may support this bill, but he’s certainly not going to expend any political capital to make it law, nor is he above using it to get that sprawling, “beautiful,” empty gesture of anti-immigrant fervor that he promised his base.
As with most of Trump’s principles, his allegiance to criminal-justice reform is shallow, negotiable and possibly subject to veto by hosts on Fox News. Yes, Trump seems to enjoy the press and celebrity attention he gets for his pardons. But there’s an old saying that “personnel is policy” — if you want to know what policies are important to a president, look at the people he’s appointing to important positions.
Trump’s first and most important criminal-justice appointment was Jeff Sessions as attorney general, a guy for whom it is always 1990, and for whom super predators lurk around every corner. Sessions opposed the First Step Act and really all criminal-justice reform. He believes we should incarcerate more people, not fewer. Trump’s claim to support sentencing reform is also belied by his appointment of William Otis to the U.S. Sentencing Commission, which establishes sentencing guidelines. Otis believes that sentences should be longer, that black and Latinos are more violent and dangerous than other races and objects to the term “low-level offender.”
Then there’s Trump’s new pick for attorney general, William P. Barr. Aside from Sessions and Otis, it would be hard to find a more retrograde, anti-reform candidate to head up the Justice Department. The first thing to know about Barr is that he co-signed an op-ed published in The Post praising Sessions' work at DOJ — specifically, the latter’s refusal to investigate police agencies accused of routine civil rights abuses, and his rollback of Obama administration guidelines asking federal prosecutors to consider charging for lesser crimes and asking for lighter sentences in some cases.
Barr didn’t just support some of the worst criminal-justice policies of the 1990s, he wrote and helped implement many of them. While attorney general in the George H.W. Bush administration, he oversaw the publication of a report called “The Case for More Incarceration.” In 1994, after leaving DOJ, he co-wrote a plan to abolish parole in Virginia. He publicly supported the first, most draconian version of Trump’s “Muslim ban,” and has a long record of anti-immigration advocacy. The ACLU points out that as AG, “Barr ordered telephone companies “to turn over lists of all phone calls from the USA” to dozens of countries under a Drug Enforcement Administration program that was a precursor to the bulk phone metadata program disclosed by Edward Snowden and repealed by Congress in the 2015 USA Freedom Act.”
One of the chief aims of the criminal-justice-reform movement is address and reduce racial discrimination in our courts, prisons and police agencies. Barr, like Sessions, doesn’t seem to think such discrimination exists. He told the Los Angeles Times in 1992, “the empirical studies I see suggest that people are treated equally in the system. That is, if a black and a white are charged with the same offense, generally they will get the same treatment in the system, and ultimately the same penalty.” As we’ve extensively documented here, the empirical data overwhelmingly demonstrates the contrary.
Most relevant to Trump and contemporary criminal-justice reform, Barr vocally opposed the 2015 Sentencing Reduction and Corrections Act, the antecedent to the First Step Act. Which means that even as Trump continues to say he supports the First Step Act, he has now appointed three people to be the country’s highest-ranking law enforcement officer -- Sessions, Barr and acting attorney general Matthew G. Whitaker -- and all three opposed most or all of the reforms that the bill would enact.
The effort by reform advocates to build Trump up as a supporter is understandable. He’s the most powerful man in the country, and his endorsement, if backed by some political capital, could go a long way toward making bills such as the First Step Act a reality. But that image was never compatible with the man who took out the Central Park Five ad in 1989, the man who bleated out warnings about black crime and Mexican rapists on the 2016 campaign trail, and who rang in his presidency with “American Carnage.” Trump’s political prospects rise and fall with fear. His best hope for 2020 is to get white people fearing black criminals all over again.
So sure, he’ll take all those 2018 accolades for conferring mercy on the few incarcerated people lucky enough to be endorsed by celebrities. And he may still feign at support for the First Step Act when the new Congress begins in 2019. But when it comes to staffing the positions that turn laws into real day-to-day policy, for Trump it will always be 1989.