//  3/16/17  //  Commentary

"I have a message for all of you: the crime and violence that today afflicts our nation will soon – and I mean very soon – come to an end.  Beginning on January 20th of 2017, safety will be restored."

That was Donald Trump’s pledge to America upon accepting the Republican nomination for president last July.  Almost two months into his term, it’s worth exploring what he has done to make good on that promise. 

To date, President Trump has not advanced any legislation or put forth a specific administrative plan to drive down crime.  His major steps have been to announce priorities through executive orders (EOs) and public remarks.  On February 9, the same day Jeff Sessions was sworn in as Attorney General, Trump signed three orders he said would usher in a “new era of justice”: EO 13773, committing to “thwart transitional criminal organizations”; EO 13774, about protecting law enforcement officers; and EO 13776, directing the Attorney General to create a “Task Force on Crime Reduction and Public Safety,” which Sessions did at the end of the month.  The president also separately ordered the Department of Homeland Security to begin publishing weekly accounts of crimes committed by undocumented immigrants and to establish an office to work exclusively with victims of such crimes.  Meanwhile, both Trump and Sessions have given public remarks reiterating their commitment to law and order, including in addresses to the nation’s top police chiefs, sheriffs, and state attorneys general.

There are at least three things to notice about these initial steps.

Crime executive orders low on substance, continue existing policy

First, the crime EOs are neither particularly substantive nor innovative.  We might expect speeches to be light on specifics, but even these orders give little indication of how policy might change.  Indeed, for all of Trump’s rhetoric about undoing the damage caused by the Obama administration, the EOs mostly continue existing Justice Department priorities.  For example, the task force order states, “It shall be the policy of the executive branch to reduce crime in America.”  As it ever was.  The order further instructs DOJ to “take the lead on Federal actions to support law enforcement efforts nationwide and to collaborate with State, tribal, and local jurisdictions to restore public safety to all of our communities”—already a core part of the Department’s mission

 Attorney General Sessions did provide more concrete instruction in a March 8 memo directing all 94 U.S. Attorney’s Offices to “specifically identify the criminals responsible for significant violent crime in their districts.”  This is an important step, and one I agree with, since we know that most violent crime is committed by a relatively small number of people.  That said, this initiative, too, is consistent with the efforts of the last administration—including Operation Violence Reduction 12, a sweep that took over 8,000 violent offenders off the streets in twelve states.  The Obama DOJ also took a more holistic approach, investing resources and federal law enforcement support to tackle violence around the country through its Violence Reduction Network.  

Trump’s order on transnational criminal organizations, meanwhile, directs the continued operation of the interagency Threat Mitigation Working Group.  That entity was created by President Obama in July 2011 as part of a comprehensive strategy against transnational organized crime.  Obama issued his own more consequential executive order freezing the assets of the most violent international crime syndicates.

Public safety strategy unduly focused on immigration

The second thing to notice about Trump’s criminal justice policies is that most of the action is not in the crime executive orders, but rather in the president’s clampdown on immigrants

His executive orders in that sphere — concerning the refugee and travel ban, the wall, ramped up detention and deportation, and the defunding of so-called “sanctuary cities” — explicitly invoke public safety as their rationale.  In addressing the chiefs and sheriffs last month, President Trump spent the first 10 of his 25 minutes defending his travel ban, telling his audience it is “a weapon that you need.”  When he turned to drug crime, he again cited immigration enforcement as the solution: a wall to “stop the drugs from pouring in,” and an exhortation that local officers “call up the federal government, Homeland Security” to turn in undocumented immigrants.  Even the new DOJ task force is skewed in this direction: the press release describes its work as “central to the Attorney General’s commitment to combatting illegal immigration.”  So, it’s not that the administration doesn’t have much of a crime reduction plan yet.  For the most part, immigration enforcement is the crime plan.

This should worry anyone who truly cares about controlling crime.  As I have written elsewhere, studies overwhelmingly show that immigrants commit less crime than native-born Americans and help push down neighborhood crime rates.  A new study from Governing, using data from the Pew Research Center estimating the undocumented population of 154 metro areas, found that places with higher concentrations of undocumented immigrants had lower rates of violent and property crime. 

What’s more, President Trump’s immigration policies are making things harder for those tasked with ensuring safety across America: local cops.  By seeking to impress local police into service as immigration agents, and threatening to strip federal funding from cities that object, the administration is driving a wedge between officers and the communities they serve.  As police chiefs in Boston, New York, Seattle, Los Angeles, Tucson, and other cities have explained, local officers need to build trust with all residents to prevent, investigate, and solve crimes.  If undocumented immigrants won’t call the police because they are afraid of being turned over to ICE, they become attractive targets for criminals.  And if they won’t share information with law enforcement or serve as witnesses, that makes everyone less safe. 

The effort to compel locals to help enforce immigration law is also probably unconstitutional, given that the administration is threatening to revoke grants that Congress never conditioned on assistance to ICE, and to interfere with the way police chiefs and sheriffs manage their departments.  San Francisco, Santa Clara County, and the cities of Chelsea and Lawrence in Massachusetts have already sued for declaratory and injunctive relief on these grounds. 

In short, the president’s immigration-centric approach to crime is likely to make us less safe, not more, and it exceeds the limits of his constitutional authority.

Dangerous overreliance on incarceration

Finally, where the Trump Administration’s initial steps do signal a substantive shift in crime policy, and get beyond immigration enforcement, they rely almost exclusively on the hammers of arrest and imprisonment.  Early signs are that the administration, in striving to appear “tough on crime,” may exacerbate mass incarceration and neglect other means of reducing crime.

The most specific policy element of the crime executive orders is the directive that DOJ consider “legislation defining new crimes of violence and establishing new mandatory minimum sentences” for offenses against law enforcement officers.  Sessions has been a fierce opponent of the Sentencing Reform and Corrections Act, a bipartisan bill supported by Obama’s DOJ that would ease mandatory minimums for nonviolent drug offenders.  In fact, Sessions’s March 8 memo calls for more charges under the Controlled Substances Act.  He has also hinted at ramping up marijuana prosecutions, even in jurisdictions that have legalized the drug, and reversing existing guidance that federal prosecutors avoid charging harsh mandatory minimums in low-level drug cases.  In a nutshell, Trump and Sessions want to put more people behind bars and keep them there longer.

There is little evidence, however, that increased imprisonment has been responsible for the reduced crime we have seen since 1991, when crime was at its peak.  A comprehensive analysis from the Brennan Center for Justice last year calculated that between 1990 and 2013, increases in incarceration had no effect on violent crime and caused only zero to 7% percent of the reduction in property crime.  Only recently has the country begun to grapple with the harm, expense, and racial inequity of our overinvestment in incarceration.  And now the crisis may become much more acute.

Overcommitting to incarceration also risks crowding out other approaches that can help reduce crime.  As a former federal prosecutor of violent crime, I understand the importance of holding people accountable through the justice system.  But we cannot incarcerate ourselves out of every crime problem.  Increasingly, police are looking to address the underlying causes of crime.  As a group of nearly 200 law enforcement leaders recently highlighted for the president, improving trust between police and residents, enhancing mental health and drug treatment services, and helping people transition from prison back into society are key to enhancing community safety.

Those lessons apparently have been overlooked by the new Attorney General, whose violent crime task force is limited to the FBI, DEA, ATF, and U.S. Marshals Service.  Components that were a critical part of the last administration’s crime reduction strategy — the Office of Community Oriented Policing Services, the Civil Rights Division, and the Office of Justice Programs, to name a few, whose employees don’t carry guns but nonetheless help make communities safer — are not listed.


Trump’s announcements on February 9 may not tell us much about how his crime control strategy will differ from that of his predecessor, but his administration’s dramatic action on immigration and commitment to being “tough on crime” do.  Those policies, I fear, will reverse recent progress and actually undermine public safety.


Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP