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The first weeks of the second Trump administration have been marked by a series of staggeringly regressive carceral actions, mirroring many of the proposed policies under the Project 2025 agenda. Donald Trump has signed executive orders to relaunch federal prison contracts with private companies, end the federal moratorium on the death penalty (again), and enforce cruel prison conditions for people whose death sentences were commuted by Joe Biden just before he left office.
As predicted by his campaign rhetoric, the brunt of his policies have targeted immigrants, with directives for increased criminal prosecutions, detention capacities, and military resources to support what he promised will be “the largest deportation program in American history.” As Trump falsely claims the people targeted are “violent criminals” threatening the safety of innocent Americans, Immigration and Customs Enforcement (ICE) arrests have surpassed 1,000 on some days, with little transparency over who is being arrested and why.
Yet, for all his “tough-on-crime” fearmongering, it hasn’t gone unnoticed that on his first day in office, Trump also blanket-pardoned nearly 1,600 people who faced serious felony charges and/or convictions related to the January 6, 2021, insurrectionist attack on the Capitol, including those who perpetrated violence against Capitol police officers trying to keep the peace. In recent weeks, more damning details have emerged about the pardoned rioters: several have beencharged for other crimes, including domestic violence and rape.
Pardoning political loyalists, whose convicted conduct would otherwise fall on the extreme end of the category of so-called “violent criminals” he aims to punish, makes clear that the Trump administration is only performatively concerned with public safety. Trump’s true priority is to punish political enemies and marginalized people and communities, disproportionately Black and brown, and remove them from American public life. At its core, Trump and his party’s politics are one of disposability. They believe that in order to secure the flourishing of a select few (namely, right-wing corporate interests and white supremacist allies), others must be eliminated — deported, detained, criminalized, or even killed.
To put it bluntly, Trump is now violently pursuing, rounding up, and disappearing immigrants, the majority not charged with any criminal offense, while right-wing loyalists convicted and sentenced for violent felonies against the country are released and celebrated.
In short, the Trump criminal justice agenda is merely a front. Considering the Republican Party’s near-absolute devotion to “law and order” politics, it is darkly ironic how much of Trump’s anti-immigrant crackdown is flagrantly unconstitutional, most notably his attempt to unilaterally amend the Constitution by executive order to end birthright citizenship and his recent, horrifying suggestion that incarcerated Americans may be transported to what would effectively be a penal colony in El Salvador. Trump also suggested that he plans to expand Guantánamo Bay — which the Center for Constitutional Rights describes as a “global symbol and site of lawlessness, torture, and racism” — into a migrant detention center for 30,000 people.
The truth is clear: the president is using the blunt instruments of the criminal legal system to punish and isolate vulnerable people, while simultaneously trying to avoid legal oversight and flout the protections guaranteed by the U.S. Constitution. Why else would his political appointees, like his border czar Tom Homan, claim that Know Your Rights education is nothing more than a guide on “how to escape arrest”? No serious public officials would suggest that informing people about their constitutional rights is somehow impeding enforcement of the law — unless they are trying to hide the flagrant illegality and cruelty of their own policies.
Viewing Trump’s January 6 pardons and his own disregard for the law and Constitution of the United States alongside his criminalization regime exposes our two-tiered justice system. While Trump’s political allies who engaged in violent protest are fast-tracked out of the criminal legal system through mass clemency grants, peaceful pro-Palestine student protestors who lack citizenship status face being fast-tracked for deportation. During his campaign, Trump even promised to deploy the military against those who protest his agenda. The criminalization of dissent is not new to his administration. Since 2017, at least 21 states have passed laws criminalizing or restricting protest — mostly in response to protests by Black Lives Matter, environmental justice, and Palestinian self-determination movements.
This asymmetrical enforcement is representative of the criminal legal system more broadly, in which distinct outcomes are based on class, race, and gender. Since only Illinois has fully abolished cash bail, the vast majority of wealthy defendants are able to buy their freedom, while poor people languish in often inhumane jail conditions for months or years without even being convicted of a crime. And as has been extensively documented, Black people are policed and incarcerated at disproportionate rates compared to white people.
Yet despite the knee-jerk instincts of liberal politicians and pundits, now is not the time to call for the caging of January 6 defendants, advocate for restraints on pardon power, or otherwise pretend that continuing to invest in and expand the carceral system will remedy its inherent cruelties. We should know by now that calling for punitive measures or other forms of carceral harshness in the aftermath of white terrorism only ends up hurting people of color, precisely because people of color have long been the designated targets of the criminal legal system. When prosecutors attain more power, they weaponize it against Black and brown people and the working class. Even hate crime legislation, intended to criminalize white supremacy and other forms of bigotry, ends up disproportionately criminalizing Black people.
In the age of mass incarceration, Democrats have responded to Republican “law-and-order” tactics by ceding to their ideological turf and seeking to prove that they, too, are good at putting people in cages. Instead of joining widespread calls for racial justice following George Floyd’s murder in 2020, Democrats have largely rejected meaningful criminal justice reform in recent years. The 2024 party platform reversed course on several of its previous commitments by failing to oppose the death penalty, promising to increase police funding, and removing any mention of “mass incarceration.” From New York to Chicago, local Democratic leaders have cowed to right-wing fear-mongering and beaten the carceral drum by attempting to rollback minor reforms and expand systems of surveillance and incarceration. Instead of supporting or standing behind the successes of data-driven, progressive wins for public health and safety like bail reform, more limited prosecutions, and drug decriminalization, Democrats have opted to make themselves indistinguishable from their Republican counterparts. It’s a losing strategy.
In the most recent example, dozens of congressional Democrats joined forces with Republicans last month to pass the draconian Laken Riley Act, which empowers ICE to trample over due process considerations and deport noncitizens who are merely accused of a crime. And within the next month, the HALT Fentanyl Act is expected to pass with bipartisan support, having already secured 98 Democratic votes in the House. Repeating the same mistakes as the failed War on Drugs of the 1970s, this bill will expand mandatory minimums and disproportionately target people of color by entrenching criminal penalties for all drugs chemically similar to fentanyl.
While Democrats still struggle to gauge the actual popularity of Trump’s agenda, they need to remember there is never a mandate for cruelty. Trump’s deportation-incarceration regime is a constitutional and existential threat that demands fierce, unified opposition, not collaboration and capitulation. Every Democrat in Congress should oppose the HALT Fentanyl Act and the other hyper-carceral bills bound to come before them in the next four years. And at the state level, Democratic governors should pursue mass clemencies, both as a policy prerogative to decarcerate their state prison systems and as a key strategy to protect immigrants from deportation threats.
Over the next four years, Trump will justify his violent disposability politics by attaching the label of “criminal” to anyone he considers a threat — immigrants, abortion providers, left-wing protestors, transgender people, pro-Palestine and Black Lives Matter activists, and more. Democrats will not be able to resist Trump by proposing their own forms of disposability politics and definitions of who is a “criminal.” Instead, they must reject the idea that people who have been marginalized or criminalized by the state are disposable, and work to defend the lives and dignity of all people. It isn’t just the morally right thing to do; supporting people and communities most in need is the most successful public health and safety solution, and saves taxpayer dollars to boot.
Trump’s January 6 pardons are evidence that his carceral politics are disconnected from public safety — and all the more reason for Democrats to reject, instead of cowing to, his accusations that they are too “soft on crime.” Trump has defied the law from his first day in office; he has no ground to stand on. At least one party should start embracing smart and bold policymaking that actually improves people’s lives. By centering resistance to mass criminalization over the next four years, Democrats can show they are serious in their opposition to Trump’s plans for dehumanizing and deadly state violence, and protect their most vulnerable constituents in a dangerous new era. It might even help them win an election.
