President Trump’s zeal for draconian law enforcement was well-established long before he took office. Capital punishment was a particular hobbyhorse of his. When five black and Latino teenagers were accused of raping a white woman in New York’s Central Park in 1989, the then–real-estate mogul spent $85,000 on newspaper ads calling for their execution. He’s maintained that the men are guilty even 17 years after DNA evidence exonerated them. His error remains lost on him: In the past few months, the president has ordered his Justice Department to resume executing federal death-row prisoners and praised China for killing people who sell drugs. Both stances reflect a generally punitive outlook. Amid a presidential campaign predicated on lies about skyrocketing crime and carnage on America’s streets, one of Trump’s go-to rallying cries in 2016 was a demand that his political rival, Hillary Clinton, be sent to prison. He’s celebrated racial profiling in policing and advocated brutal treatment for arrestees. Broadly speaking, he’s a man few would mistake for believing that America’s criminal-legal system is too harsh.
Yet that’s precisely the conclusion he hopes that voters will draw about him now that the 2020 election is approaching. His Super Bowl reelection ad touting his commutation of Alice Marie Johnson’s drug-conspiracy sentence was a transparent effort to woo black voters, who generally despise him. He signed the First Step Act in 2018 — a bipartisan bill that reduced mandatory-minimum sentences for some federal crimes, among other modest reforms — only to reframe it as a rebuke to one of his Democratic predecessors, Bill Clinton. (Trump also boasted about having achieved reform where no other president would or could — despite the fact that Obama had tried for a similar bill in 2016 but was thwarted by Speaker Mitch McConnell.) But it’s his use of pardon power that’s drawn the most scrutiny, along with his interference in federal cases involving his friends.
Earlier this month, Trump railed against the severity of the prison sentence recommended for his former adviser Roger Stone, prompting the Justice Department to backtrack on it. The move highlighted the long-observed habit the president has of pardoning or commuting sentences for his allies and those who share his political ideologies. These include the racist former Maricopa County, Arizona, sheriff Joe Arpaio and former Army lieutenant — and noted murderer of unarmed Iraqis — Michael Behenna. This incongruity was further called into question on Wednesday, when Fox News reporters asked White House press secretary Hogan Gidley to account for it. Gidley’s response: “The president is clearly against aggressive sentencing, whether it’s Rod Blagojevich [the former Illinois governor who tried to sell President Obama’s vacated U.S. Senate seat in 2008, and whom Trump pardoned this week] or Alice Johnson.”
The president is not against aggressive sentencing. His entire foray into electoral politics is a testament to the opposite. The incoherence of his shifting positions on criminal justice and imprisonment is best accounted for by a simpler principle: He bristles when people he likes or who share his ideologies are held accountable for their misdeeds, and to fend off accusations of impropriety, he has found a convenient laundering mechanism for letting them off the hook by pardoning random black people. Reports suggest that Trump’s recent efforts to recast this dubious moral position as a broader commitment to criminal-justice reform is the brainchild of Jared Kushner, his son-in-law turned adviser, whose father spent several months in federal prison for tax evasion, witness tampering, and illegal political campaign contributions. Kushner and Trump seem to have come by their recent objections to the American criminal-legal system the same way that many people do: by having been personally affected by it and witnessing firsthand how unjust and destructive it is.
This understanding has been articulated even more tellingly by a man whom Trump pardoned this week alongside Blagojevich — former NYPD commissioner Bernard Kerik, who shepherded the department through its widely lauded response to the September 11 terrorist attacks only to get convicted of ethics violations and for lying to federal officials while being considered for a job as secretary of Homeland Security. Prison changed Kerik, as it does most people. After years spent as NYC’s corrections commissioner and just over a year as the city’s top cop at the tail end of Giuliani’s “tough on crime” years — which are best remembered for, among other features, expanding “broken windows” policing and “stop and frisk” — Kerik left federal custody a neophyte reformer. He proceeded to write several books and newspaper op-eds about how terrible prison is and how excessively punitive the system can be even toward people convicted for the lowest-level crimes. In a tweet on Wednesday thanking Trump for pardoning him, Kerik reiterated an observation he’d made previously in his writings: “Going to prison is like dying with your eyes open.”
Evidence abounds for why this is apt. Prisons nationwide have generated recent headlines for their brutal conditions. Corrections systems in Alabama and Mississippi are under federal investigation following spikes in prison murders and suicides. The details from those prisons and elsewhere point to what I’ve described before as habitats of sustained torture, where some of the most inhumane treatment imaginable is rationalized by casting its targets as worthy of little beyond civil death and total isolation from society. Kerik changed his mind about the system to which he once fed untold numbers of people — a disproportionate share of them black or Latino — after suddenly finding himself on the receiving end of it. This is perhaps the only reasonable reaction to such cruelty. But it can also lay bare the limitations of those who adopt it.
“I believe in law and order and I believe in the need to keep society safe from predators, murderers, rapists, child molesters, and those involved and engaged in violent crime,” Kerik wrote in 2015. “But, when American jails and prisons around the country are primarily filled with nonviolent and many first-time offenders, it’s time for change.” The majority of people convicted and serving time in state prisons, where most American prisoners are held, are there for violent crimes. Any serious effort to reduce the country’s incarcerated population will have to account for them, not just their seemingly less-threatening counterparts. Kerik’s position on this subject is not unusual. Part of why he and others are able to delineate so easily between fundamentally good and redeemable and fundamentally bad and dangerous prisoners is because they can see themselves in the former. For many, the inmate who lied on a tax form is more relatable — and more worthy of forgiveness — than the inmate who punched their co-worker or shot a gang rival. This is a rational but inadequate way of understanding the system’s unjustness. The more crucial revelation is that prison is probably no place for any of these people. Kerik’s takeaway is more sincere and honestly come by than Trump’s, but both of their assessments sell the problem short. The conclusion that prisons are bad and unfair is correct. If only more people felt that they were also bad and unfair to prisoners who didn’t remind them of themselves.
