New ACLU memo paints dark vision of "Trump on the Criminal Legal System"

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable realities about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021. 

Prison releases and the slow-down in justice systems in 2020 in large part account for most of the dramatic drop in the federal prison population during Prez Trump's time in office, but I believe federal incarceration level had dropped over 5% in the Trump Adminstration years before COVID.  Updating this tale of a particular incarceration metric, the BOP website now reports, as of July 11, 2024, that there are "158,479 Total Federal Inmates."   In other words, federal incarceration has increase 4.5% during Prez Biden's term in office, so far.

I raise these notable (and rarely reported or discussed) data in part because the ACLU has today released this detailed 14-page memo titled "Trump on the Criminal Legal System" which carries the subtitled "Threatening a New Era of Mass Incarceration."  Here is how this memo begins and ends, which highlights its tone throughout:

A second Trump administration threatens to accelerate mass incarceration, further dehumanize people in our criminal legal system, engage in a death penalty “killing spree,” and reverse many reforms gained over the last two decades.

Trump’s proposals are dangerous on two levels.  First, with respect to the federal system, Trump will seek to double down on the failed policies of the past: encouraging brutal policing practices, pursuing extreme sentences, and expanding the use of the death penalty.  Second, Trump’s racist and extremist rhetoric may embolden states that have previously embraced reform to return to failed crime policies, fueling mass incarceration and widening racial inequality....

The ACLU will defend against Trump’s efforts to bring in a new wave of mass incarceration, including by fighting against his attempts to encourage police abuses, grow our federal prison population — going so far as to reincarcerate people in home confinement — and expand the federal death penalty. We will advocate for congressional oversight to prevent potential harms threatened by Trump. And we will take a Trump administration to court if necessary to protect our civil liberties.

While we defend the hard-won reforms from the last few years to improve the system, we will also continue our long-term fight to end the country’s carceral epidemic and advocate for our long-term vision of public safety.

I do not want to suggest criminal justice reform advocate are wrong to worry about possible future policies of a second Trump Administration.  But, with a focus on the federal prison population and sentencing realities, I still think it critical to note that many  "hard-won reforms from the last few years" came during the Trump Adminstration in the form of the First Step Act (as well as the CARES Act). 

I expected to see federal incarceration levels to increase in Prez Trump's first term, and so I do not think it misguided for refrom advocates to be concerned about the potential for increases in another Trump term.  But the actual data of federal prison populations should serve as a reminder that almost all criminal justice stories are predictable unpredictable.  And I still strongly believe there are many important opportunities to build the kind of bipartisan reforms that culminated in the First Step Act and more recently in the Federal Prison Oversigh Act.   But maybe that's my naive optimism kicking in again.