« "Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records" | Main | Former House speaker gets black hole of federal prison for 15 months after sentencing supernova »

April 27, 2016

Seeking serious, sober, sophisticated substantive analysis: would Clinton or Trump be a "better" sentencing President?

After last night's primary results, I have resolved myself to the less-than-thrilling prospect of being presented in November with a Prez voting choice between Hillary R. Clinton and Donald J. Trump.  On some issues unrelated to criminal justice systems, it likely will be easy to figure out which candidate is more likely to pursue (and achieve) policy developments that are more to my liking as a (moderate?) libertarian.  But, as the question in the title of this post is meant to suggest, I am genuinely unsure whether Clinton or Trump would end up being a "better" sentencing President.  (I have put the term "better" in quotes here because I fully recognize that lots of different people have lots of different views about what makes for a good President on sentencing issues; I hope thoughtful folks with lots of different prespectives will chime in.)

Back in 2008, I believed that then-candidate Barack Obama would prove to be a "better" sentencing President than Hillary Clinton or John McCain.  (A big factor in this judgment was not just the Clintons' criminal justice track record, but especially Hillary's worrisome opposition to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.)  In April 2012, based in part on the fact that Prez Obama did not live up to my hopes during his first term, I wrote this Daily Beast commentary making the point that "given policy and practical developments of recent years, there‚Äôs a good argument to be made that a President Romney could prove to be more likely to make real and long-term reforms to American criminal justice."  In that commentary, I urged then-candidate Romney to "embrace what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."

Of course, Romney did not take my advice (and lost), and Prez Obama has proven much more committed to working on sentencing issues during the second half of his second term.  Still, perhaps ironically, I think a Prez Romney would have ended up supporting AND getting enacted the kinds of federal statutory sentencing reforms that have been bogged down in Congress in recent years.  I say this based in part on legislative reforms in the states, including my own Ohio: states led by GOP govs have generally been more inclined to enact significant legislative sentencing reforms.

I set this all out because I genuinely think, no matter what your vision of "better" sentencing, it is now time to start some serious, sober and sophisticated substantive assessments what kind of sentencing President Hillary Clinton or Donald Trump might prove to be.  In many ways, both seem to me to be comparable (and annoying) enigmas on sentencing law and policy: in the past, both have generally said only whatever seemed politically useful at the time of their statements; in the future, both are sure to face challenges getting Congress to enact whatever criminal justice reform agendas they might want to pursue.  So, I hope anyone who care a lot about these issues will help me try to start a robust, rigorous conversation on this front.  

(For the record, I expect that, after nominations and party platforms become official this summer, I will do a series of Clinton vs. Trump posts on specific sentencing issues like the death penalty, clemency, and drug/white-collar sentencing.)

April 27, 2016 at 11:30 AM | Permalink


I don't think Hillary will be an eloquent voice on criminal justice reform, but I can see her getting concrete legislation through to obtain some criminal justice reforms. During her relatively brief tenure in the Senate she was one of the co-sponsors for the bill addressing the crack-cocaine sentencing disparity (Pres. Obama was also a co-sponsor). Hillary seems to stake positions that are more politically palatable across the board, such as prospective only sentencing reform and death penalty reform measures that stop short of wholesale abolition. Similar to Justice Brennan's philosophy of counting to five; I can see Hillary having the potential to get enough consensus to pass criminal justice reform measures that improve things, but probably won't be broad enough for systemic change. As I happen to think incremental reform is a more realistic hope, Hillary could be a good candidate on criminal justice/sentencing reform.

As for Trump, he has identified himself as a "tough on crime" proponent in the past, uttered things such as "lethal injection is too comfortable a way to go", and been fairly vocal in supporting police officers. But he may have different stances on drug crimes vs. other crimes as he seems amenable to letting states experiment with drug legalization measures and supporting treatment for drug addicts. His comments regarding protesters causes some concern over whether he would use the criminal justice system to punish political speech or expressive activities. On the other hand, I don't think criminal justice will be a priority in Trump's White House unless there is some sensational case that the media and country follow.

Posted by: Melissa | Apr 27, 2016 12:51:15 PM


Posted by: Andy | Apr 27, 2016 4:09:51 PM

Ah, Lady Hillsry is not the hope for sentenceing reform. She will ignore such matters and go After Americas sporting guns as well.

Yikes, cant we drum up anyone better than Trump and Hillery. So far Trump hS been a bully and not given any plan, but nobody else ever does either. Oh well, whoever gets the job gas to work with the existing structure, wrestling match to get a dance organized with the crew we currently gave.

Posted by: MidWestGuy | Apr 27, 2016 8:01:15 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB