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About That Trump Super Bowl Ad

About That Trump Super Bowl Ad

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

It was no secret that President Trump was planning to run an ad during the Super Bowl this year; the question was only what the particular message of the advertisement would be. Would it peddle lies about the strength of the economy? Would it fearmonger about the dangers of immigrants? Would it just show his favorite image, the map of his 2016 win in the Electoral College? Many were surprised when the ad highlighted a different achievement: criminal justice reform.

Over some sparse, melancholy musical chords, the 30-second black-and-white advertisement shows footage of Alice Marie Johnson, whose sentence was commuted by Trump, hugging her family and praising Trump after her release from prison. Words flash on the screen: “Politicians talk about criminal justice reform. President Trump got it done.”

For some on the left, especially those involved in the work of reforming the criminal system, it was confusing. It is hard to object to anyone celebrating an early release from prison, but it is even harder to celebrate the most socially regressive president of our lifetimes. The discomfort was expressed by law professor Rachel Barkow:

It is hard not to view Trump’s self-celebration as disingenuous, seeing as he is responsible for setting back the struggle against mass incarceration and civil rights by years, if not decades. The day after the Super Bowl, the Washington Post ran an article detailing how Trump has granted clemency not to those most deserving, but to those who happen to have a personal connection to him. “All but five of the 24 people who have received clemency from Trump had a line into the White House or currency with his political base,” Beth Reinhard and Anne Gearan wrote. “As the administration takes its cues from celebrities, political allies and Fox News, thousands of other offenders who followed Justice Department rules are waiting, passed over as cases that were brought directly to Trump leaped to the front of the line.”

Johnson was championed by Kim Kardashian West. Trump’s very first pardon went to disgraced Arizona Sheriff Joe Arpaio, who had been convicted of disobeying a federal judge’s order to stop a racially discriminatory practice of detaining people “suspected” of being in the U.S. illegally. It seemed to many like carte blanche for vocal supporters of the president to trample on the rights of the vulnerable.

“In the most recent end-runs around the pardon office and over the objections of Pentagon officials,” Reinhard and Gearan write, “Trump in November pardoned two former Army officers: Maj. Mathew L. Golsteyn, facing trial for premeditated murder, and 1st Lt. Clint Lorance, convicted of murder after ordering soldiers to fire at unarmed men in Afghanistan. The White House cited endorsements from several Republican congressmen and a Fox News host.”

The ad seems to allude to the First Step Act, a significant but timid piece of legislation passed in 2018 that aims to reduce the population of people serving time in federal prisons for low-level offenses. David Patton, executive director of the Federal Defenders of New York, believes the First Step Act should have been called the “baby step act,” because, as he told The Daily Appeal at the time it was passed, “it’s limited.” This is true for a number of reasons, but in our conversation, Patton focused on the legislation’s heavy reliance on risk assessment tools in determining who is eligible to earn time credits for early release. People forget that it should be a risk “and needs” assessment, he says, and the needs side gets neglected. In addition, risk assessment tools have been shown to perpetuate and magnify racial disparities. These automated systems, often built on incomplete and biased data, are part of what Michelle Alexander has called “newest Jim Crow” and Virginia Eubanks has called the “digital poorhouse.”

Trump’s ad also boasts that “thousands of families are being reunited,” a statement so tone-deaf for an administration that has separated thousands of families that it reads almost as a troll. In fact, during the halftime show of the Super Bowl itself, Latinx children were featured singing from small, individual cages, which was seen as a rebuke to Trump’s immigration policies.

And in his choices of attorney general, Trump has actively dismantled years of reform work. Very soon after being appointed attorney general, Jeff Sessions ordered federal prosecutors to crack down on drug offenders, telling them to “charge and pursue the most serious, readily provable offense” in drug cases, even when that would trigger harsh mandatory minimum sentencing. This came even as many on both sides of the aisle had come to oppose mandatory minimum sentences, especially for drug crimes. The policy canceled the Obama administration’s attempts to pull back on draconian sentencing strategies and restored some language from a 2003 memo written by Attorney General John Ashcroft. Sessions said, without evidence, that the crackdown was “a key part of President Trump’s promise to keep America safe.” Former Attorney General Eric Holder called the move “dumb on crime.”

The current attorney general, William Barr, embraces views that, if anything, are even more extreme. In a 1995 symposium, Barr attributed the root cause of violent crime not to poverty but immorality. “Violent crime is caused not by physical factors, such as not enough food stamps in the stamp program, but ultimately by moral factors,” he said, according to a recent article in the New Yorker. “Spending more money on these material social programs is not going to have an impact on crime, and, if anything, it will exacerbate the problem.” Barr also seems to doubt the very existence of wrongful convictions. “The notion that there are sympathetic people out there who become hapless victims of the criminal-justice system and are locked away in federal prison beyond the time they deserve is simply a myth,” he has written. “The people who have been given mandatory minimums generally deserve them—richly.”

Should we celebrate Alice Marie Johnson’s release? Yes. Is it good for Trump to take pride in that work? Absolutely. But it seems disingenuous at best, and like a cynical ploy to pander to Black voters at worst. Certainly, it does not mean that those who fight for meaningful, systemic reform shouldn’t feel uncomfortable; given Trump’s track record, it’s the most natural response.