Does Trump Threaten Criminal Justice Reform?

Brian Mackey examines the question of whether a push for law and order, such as proposed by Republican presidential nominee Donald Trump, would undermine current attempt at criminal justice reform.

TRANSCRIPT: When Donald Trump accepted the Republican Party’s presidential nomination, his speech repeatedly emphasized law and order.

Meanwhile, policymakers across America are considering significant changes to our criminal justice system aimed at reducing prison populations and ending the targeting of blacks and Latinos.

I’m Brian Mackey, and today we’re going to investigate the question of whether a push for law and order undermines the push for reform.

Trump hammered the theme of law and order several times in his speech in Cleveland.

TRUMP: “The crime and violence that today afflicts our nation will soon, and I mean very soon, come to an end.”

The thing is, crime and violence have been declining for decades. Meanwhile, American prisons are busting at the seams. This has led to an emerging bipartisan consensus on criminal justice reform.

These sorts of changes are seen a politically dangerous for legislators — no one wants to be soft on crime. And there are concerns that Trump’s message could wreck the consensus.

But before we can get to that, we have to understand the appeal of Trump’s message — why it’s caught on with so many American voters — and how that sort of message has led America to have one of the highest rates of imprisonment of any country on Earth.

To understand all this, we have to go back in time, nearly half a century, to August 8, 1968. We’re at the Miami Beach Convention Center in Florida. On stage is Richard Nixon, accepting the Republican Party’s nomination for the presidency.

NIXON: “We make history tonight — not for ourselves but for the ages.”

Like Trump did in Cleveland, Nixon hammers at the idea of law and order.

NIXON: “As we look at America, we see cities enveloped in smoke and flame. We hear sirens in the night. We see Americans dying on distant battlefields abroad. We see Americans hating each other; fighting each other; killing each other at home.”

And these were not idle words. By August 1968, Americans had witnessed tragedy and upheaval across the country. There were long-simmering resentments that had finally reached a boiling point a few months earlier.

KENNEDY: “Ladies and gentlemen … Martin Luther King was shot and was killed tonight in Memphis, Tennessee.”

ANNOUNCER: “In the CBS newsroom in New York, it’s difficult to keep track of all the cities where sporadic violence has occurred in Negro sections since the bullet of the unknown white gunman cut down the Rev. Dr. Martin Luther King in Memphis, Tennessee yesterday.”

Even as Nixon was speaking, just six miles away, across Biscayne Bay, hundreds of police were clashing with black citizens in Miami. The next day’s Chicago Tribune would report that three men were killed and nearly 50 people were arrested.

NIXON: “And tonight, it is time for some honest talk about the problem of order in the United States. Let us always respect, as I do, our courts and those who serve on them. But let us also recognize that some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country.”

Nixon was addressing real problems in America, but there was something else going on.

LÓPEZ: “The right has insisted that the biggest threat in the lives of working class whites comes from criminal people of color: blacks and gangs in the inner city, and illegal aliens across the country.”

This is Ian Haney López. He’s a professor at the University of California Berkeley and the author of the book Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism & Wrecked the Middle Class.

Haney López argues that politicians, as a matter of political strategy, have competed over who can be harder on people of color. He says the dog whistle goes beyond crime, to include insinuations about just what sort of person uses government programs. And Haney López says while Republicans were first to blow the dog whistle, Democrats have joined in, too.

RONALD REAGAN (1976): “In Chicago, they found a woman who holds the record. She used 80 names, 30 addresses, 15 telephone numbers, to collect food stamps, Social Security … as well as welfare. Her tax-free, cash income alone has been running $150,000 a year.”

BUSH CAMPAIGN AD (1988): “Dukakis not only opposes the death penalty, he allowed first-degree murderers to have weekend passes from prison. One was Willie Horton, who murdered a boy in a robbery, stabbing him 19 times. …”

HILLARY CLINTON (1996): “They are not just gangs of kids anymore, they are often the kinds of kids that are called ‘superpredators’ — no conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel. …”

'These are efforts to prove to racially anxious whites that the government is cracking down on criminal minorities.'

LÓPEZ: “And this is Bill Clinton in his war on crime, much more aggressive even than Ronald Regan’s war on drugs. And this is also President Barack Obama, who has deported more people on a sustained basis than we have ever seen in the history of the country. These are efforts to prove to racially anxious whites that the government is cracking down on criminal minorities.”

As you might expect, the politicians beg to differ.

NIXON: “And to those who say that law and order is the code word for racism, there and here is a reply: Our goal is justice for every American. If we are to have respect for law in America, we must have laws that deserve respect.”

LÓPEZ: “Dog whistling as code has traditionally sought to hide the underlying racial manipulation from two distinct audiences. One audience are the political opponents and the media. The other audience is the base, the target population, the people from whom you hope to win support. Because again, this is basically an appeal to racial fear where as a society we have rejected racism. Racism is seen as immoral.”

And Haney López says the people who respond to dog whistles do not want to see themselves as bigots. And in most cases, they are not in fact bigots. This is the tightrope Trump is walking when he calls Mexican immigrants “rapists” and says he’d bar Muslims from coming to America.

'The vast majority of Trump supporters are good, decent people. They are economically anxious. They are racially anxious.'

  LÓPEZ: “The vast majority of Trump supporters are good, decent people. They are economically anxious. They are racially anxious. They are anxious about the changing face of the country. And Donald Trump has sold them the pernicious myth that their economic anxieties are connected to changing demographics. And that’s what they’re responding to. But they do not believe expressly, consciously in white supremacy. And they would not support a candidate who they saw as explicitly appealing to racism.”

TRUMP: “In this race for the White House, I am the law and order candidate.” At his RNC speech in Cleveland, Trump argued that decades of progress in bringing down crime are being reversed by what he characterized as the Obama administration’s “rollback of criminal enforcement.”

TRUMP: “In the President's hometown of Chicago, more than 2,000 people have been the victims of shootings this year alone. And more than 4,000 have been killed in the Chicago area since he took office.”

This comes at a time when people on both the liberal and conservative side of the political spectrum have been coming to an agreement on the need to change the American criminal justice system.

MOLL: “It all started in states like Texas and Georgia and North Carolina, where legislative leaders were, frankly, upset with the outcomes they were seeing coming out of their prison system.”

Jenna Moll is with the U.S. Justice Action Network, a group based in Washington, D.C. but that’s pushing changes to the criminal justice system in a number of states, including Illinois.

While Trump is portraying America as a violent, dangerous place in need of his protection, the fact is crime is down. Way down.

MOLL: “Crime is at about a four-decade low across the country. … And at the same time, we continue to see prison populations rise.”

Moll says she’s not that worried about politicians abandoning the criminal justice reform movement. That optimistic view is shared over in the offices of the American Civil Liberties Union of Illinois, where spokesman Ed Yohnka says the state is experiencing its first strong bipartisan push for reform. For that he credits strong political leadership on the issue from both Republican Gov. Bruce Rauner and the Democratic majorities in the General Assembly.

YOHNKA: “That’s what’s going to drive change is real leadership and not campaign rhetoric that oft times doesn’t really fit with what’s really factual, No. 1, and No. 2, tends to lose its impression on people’s minds once an election campaign is over.”

That is not a universal view. Earlier, we heard professor Ian Haney López explain dog whistle politics, and he drew a connection between political rhetoric around “law and order” and the mass incarceration that’s a hallmark of modern American life.

LÓPEZ: “In reversing the political dynamics, in ramping up again a popular hysteria about crime, that’s going to make it much harder to reform our radicalized mass incarceration system.”

Another expert who sees this possibility is Brendan Nyhan. He’s a professor of political science at Dartmouth and a contributor to The Upshot, a data-driven news site that’s part of The New York Times.

In May 2015, before Trump had even declared his candidacy, Nyhan wrote that the “No. 1 public enemy of criminal justice reform” could be this year’s election.

NYHAN: “One of the most striking trends in recent years has been the spreading of polarization into Congressional races and state-level races. We can expect that the Trump approach on crime could polarize the issue, not just at the federal level, but at the state level as well, if he continues to make it an emphasis of his campaign.”

It remains to be seen whether Trump continues the law and order tack. Nyhan says Trump has not shown much ability to stick to a particular message, and he got away from the crime issue in the days following his speech in Cleveland.

'There are many risk-averse politicians who will flee from this sort of issue if it becomes contentious enough and if they see too much political risk.'

NYHAN: “But I do think it’s a threat. There are many risk-averse politicians who will flee from this sort of issue if it becomes contentious enough and if they see too much political risk.”

Gov. Rauner set a goal of reducing Illinois’ prison population by 25 percent over the next decade. That’s about 12,000 fewer inmates. So far, the bipartisan commission he assigned to the job has recommended changes that might get about halfway there.

Although they were supposed to have wrapped up last December — they’re still debating how to get across the finish line — debating, that is, the ideas that carry greater and greater political risk.

Brian Mackey covers state government for NPR Illinois. You can follow his reporting on Twitter and Facebook. A version of this story was first broadcast on Illinois Edition on Aug. 4, 2016.