Will the Trump Administration Jail More Drug Felons?

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An immate uses a mirror to look outside his cell at the Los Angeles Men's Central Jail in downtown Los Angeles, 19 May 2004. The U.S. has the world's highest incarceration rates. ROBYN BECK/AFP/Getty Images

U.S. Attorney General Jeff Sessions has made no secret of his desire to renew America’s ‘war on drugs,’ and Department of Justice officials have told the Washington Post that reforms enacted during President Barack Obama’s term, including reducing prison sentences for those guilty of low-level drug offenses, were under review.

But how will the policies impact America’s incarceration rates, currently the highest in the world?

In a 2013 memo, then-Attorney General Eric Holder had instructed prosecutors to avoid charging those believed to be responsible for non-violent drugs crimes with offenses requiring severe mandatory minimum incarceration sentences. The initiative was part of Obama’s push to reduce the number of Americans serving time in prison.

Figures bear out a correlation between America’s spiralling post-1960s incarceration rates and its war on drugs.

It was in the years following President Richard Nixon’s 1971 declaration that drugs were America’s “Public Enemy No.1” that incarceration rates began to rise.

In the early 1970s, incarceration rates were relatively low, with most states having 250 to 300 prisoners per 100,000 people. By 2007 that rate had quintupled, with 767 per 100,000 people. Though the rate dipped slightly in the following years, there are currently 2.3 million people in state prisons, federal prisons, juvenile correctional facilities, and other detention centers throughout the United States.

So how many of these people were locked up for drug offenses? In the federal system the number is  81,847, or 46.3 percent. In the far more numerous state prison population, 16 percent, or 210,200 of those incarcerated have drug crime as the most serious offense.

Obama was the first president since Jimmy Carter to leave office with a smaller federal prison population than when he took office, with the numbers falling by 5 percent (or 7,981 inmates) between 2009 and 2015. Before leaving office he pardoned or commuted the sentences of  330 people who had been sentenced in some cases for decades for non-violent drug offenses.

President Donald Trump has struck a different note, pledging during his campaign that he would be “tough on crime,” dubbing himself the “law and order” candidate.

For John Pfaff, author of Locked In and professor of law at New York’s Fordham University, Sessions’ plans to re-introduce tougher drugs sentencing may not automatically translate into higher incarceration rates though.

“This will only be affecting the federal system and the federal system is only about 12 percent of the prison population, so the overall impact will not be that great – if every federal prisoner in the country was freed, the U.S. would still have the world’s highest incarceration rate.”

He said the move’s strongest impact could be on public faith in U.S. law enforcement, which has wavered after a series of high-profile shootings of civilians by police officers.

“I don’t think there will be that many additional low-level offenders given really long sentences but any one of those can become a media story, and can affect people’s views on the general legitimacy of law enforcement,” he told Newsweek.

Since taking office the administration has sent mixed messages on incarceration policy, with many senior Republican figures favoring criminal justice reform.

In the March budget blueprint a $1 billion cut in funding for building new prisons was announced, “due to excess capacity resulting from an approximate 14 percent decrease in the prison population since 2013.” The administration though has scrapped an Obama DOJ order to phase out private prisons. The department had criticized them for being less safe and more punitive than government institutions.

Peter K. Enns, an associate professor in the Department of Government at Cornell University and author of Incarceration Nation, said the administration’s emphasis on punishment was swimming against a tide of public opinion and bipartisan consensus.

“The U.S. public is still punitive, but less so than at the high point in the mid-90s,” he said, citing Hillary Clinton’s retraction of comments on “superpredators” during the election campaign as an indicator of changing attitudes.

He said Sessions’ review of Obama sentencing reforms “is more symbolic, but any extra person going to prison for a long term is a big deal, “ adding “it’s a little bit surprising and goes against how public opinion has been shifting in the last 10-15 years.”

A key element is how Trump administration policy will play out at a state and county level, where federal government has less authority and which drives incarceration rates.

Pfaff said he believed that under the Trump administration, federal incarceration rates would increase, but that in states and counties policy would reflect local concerns.

“I think they [the Trump administration] will try to use their rhetoric to encourage states to be more aggressive and encourage prosecutors to be more aggressive, but my general sense is that that kind of rhetoric does not matter nearly so much at the local level as something that drives prisoner growth in the states,” he said.