Now that President Donald Trump has fully revealed himself, we can ask what his particular brand of vituperative vengeance will mean for abolition. When my students ask me that question, I begin with the answer you’re supposed to give: For the most part, the criminal legal system is a local affair. There are nearly 15,000 police departments, more than 2,300 prosecutor offices, and about 1,650 prisons in the United States, and relatively few of them answer to Trump. The president can’t tell a local cop whom to stop, search, surveil, or arrest. He can’t order a local prosecutor to seek prison rather than probation. He can’t force a state legislature to enact mandatory minimum penalties or expand the death penalty. And, most importantly, he can’t compel a state or municipality in any specific case to invoke the machinery of the carceral state instead of alternatives like restorative justice.
Don’t get me wrong, the incoming Department of Justice (DOJ) will do a lot of damage. As soon as she was sworn in, the new attorney general issued fourteen memoranda that collectively aim to align federal law enforcement with President Trump’s priorities. Two of these memos expand the use of capital punishment and a third instructs federal prosecutors, at least in the absence of “unusual facts,” to always “charge and pursue the most serious, readily provable offense. The most serious offenses are those punishable by death, or those with the most significant mandatory minimum sentences . . . and the most substantial recommendation under the Sentencing Guidelines.” Another memo establishes Joint Task Force October 7 (“JTF 10-7”). Among its priorities, the task force will “investigat[e] and prosecut[e] acts of terrorism, antisemitic civil rights violations, and other federal crimes committed by Hamas supporters in the United States, including on college campuses.”
And the worst may be yet to come, particularly if the DOJ takes its lead from Project 2025. Among many other absurdities, the project implores the DOJ to restart the federal drug war, blasts the apparently heretical suggestion “that drug possession crimes are not serious offenses,” and calls upon U.S. attorneys to “rigorously prosecute as much interstate drug activity as possible, including simple possession of distributable quantities.” In the same vein, the project takes aim at progressive prosecutors and urges the DOJ to “initiate legal action against local officials—including District Attorneys—who deny American citizens the ‘equal protection of the laws’ by refusing to prosecute criminal offenses in their jurisdictions.” And it calls for federal law enforcement to ramp up its presence “in jurisdictions with rule-of-law deficiencies”—code for locations that are experimenting with alternatives to prosecution and incarceration—and to swamp these blue islands with “innovative solutions to bring meaningful [federal] charges” that will fill the carceral gap.
Still, as bad as all this is, even the authors of Project 2025 recognize that the “overwhelming majority of crimes in the United States are properly handled at the state and local levels,” and there’s not a lot a president can do to impose his will on the frontline actors in the criminal legal system.
At least not directly.
The fact is that the federal government has extraordinary power to influence state and local affairs. To understand how the incoming administration will likely use this power to shape the criminal legal system, it helps to try to see the world as the administration does. To its law-and-order types, free will is unfettered and failure is a choice. In their way of thinking, just as some people choose to be (and to remain) poor, some people choose to misbehave, sometimes very badly. To them, the United States built the carceral state for the same reason it dismantled the welfare state—namely, to discipline weak people who make bad choices. And when people choose to hurt someone or steal their property, they believe that the only sensible response, as political scientist James Q. Wilson used to preach, is swift, certain, and severe punishment.
Because the law-and-order folks view this orientation as self-evident, they take a very dim view of those who resist it. They see the people who peddle alternatives to the carceral state, which includes abolitionists as well as reformers—in other words, us—as snake oil salesmen or errant children: we have a voice but are obviously incapable of using it responsibly, as demonstrated, for example, by our determination to elect progressive prosecutors. This orientation is unfalsifiable: The more people who vote against the carceral state, the more it proves that our democratic preferences should be ignored. Children need to be told what to do.
Safe behind this ideological bulwark, I expect the Trump administration will make a coherent assault on abolitionism and progressive criminal legal policy. One prong will take aim at the false prophets who have led the people astray with carceral workarounds, while the other will attempt to silence voters in progressive jurisdictions who have opted against the carceral state.
To begin with, Trump will try to leverage the federal government’s spending power. The Constitution vests Congress with the power to tax and spend “for the general Welfare,” and every state in the country receives billions of dollars annually in grants from federal agencies, most of which are administered by the executive branch. As of 2021, federal grants made up one-fifth of states’ total revenues.
I anticipate the Trump administration will use this federal power in an effort to reshape local law enforcement. It will defund programs and places that promote alternatives to the carceral state, since that is what they find most heretical. I hesitate to list them here for fear of bringing them to the attention of the ax wielders, though I suspect they are already well known, especially those that take a community-based, non-carceral approach to violent crime.
At the same time as it shifts funding away from alternatives, Trump’s DOJ will increase funding that greases the carceral skids. State and local governments will receive money on the condition they use it to increase law enforcement’s ability to stop, arrest, prosecute, convict, sentence, and incarcerate residents. Community alternatives to the carceral state will shutter as police departments grow. We will see an expansion of surveillance in Black and brown neighborhoods as the DOJ funds cities to deploy cutting-edge technology. Especially after the terror attack in New Orleans, hardened environments will become de rigueur—more bollards and concrete barriers, fewer parks.
Some would push back against this prediction. They would point out that federal funding currently accounts for only a very small percentage of the budget for state and local law enforcement, and that prior attempts to use federal funding to influence local policing have amounted to very little. They may be right and I look forward to being proven wrong, but I am less sanguine this time around. We have never confronted an administration so thoroughly committed to using federal funding as a weapon to reshape state and local affairs. A week after taking office, the Trump administration froze all federal funding to state and local governments, and to the nearly 1.5 million nongovernmental organizations that provide vital public services where government cannot or will not. Though the administration quickly purported to rescind this directive, and the freeze is the subject of litigation, the fate of trillions of dollars in federal funding remains uncertain. At the same time, Elon Musk and his DOGE squad are romping through the federal bureaucracy looking for ways to slash what they consider wasteful federal spending.
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When the dust settles, it seems certain the Trump administration will substantially cut back on federal support for countless public and private programs and agencies that do not align with its culturally conservative priorities. This will likely create huge budget shortfalls at the state and local level, and state and local governments will be scrambling to make up the difference. All local budgets will come under enormous strain and I anticipate there will be a great deal of robbing Peter to pay Paul: the budget for public works will be cut to keep the lights on in public schools, for example. In this climate, any source of federal funding becomes much more important, which will inevitably magnify the ability of the federal government to influence local behavior. Indeed, I suspect the Trump administration is counting on this scarcity to amplify its ability to reshape local law enforcement.
Concretely, I expect some carceral initiatives of the Trump administration to be deliberately high profile and provocative. For instance, I would not be surprised if we see legislation designed to embed the carceral state in public schools. This legislation would direct the Secretary of Education to identify public schools that “endanger” student safety by lacking a sufficiently hardened environment, and authorize the secretary to withhold all funding for an entire school district until the deficient school takes corrective action by, for example, installing metal detectors, surveillance equipment, and police officers; authorizing selected employees to carry firearms; and adopting zero tolerance disciplinary practices. Call it An Act to Make Public Schools Great Again. (Under the STOP School Violence Act of 2018, schools can seek funding to harden the environment, but participation is voluntary and a decision to not turn schools into prisons does not put other funding at risk.)
Legislation of this type could be a model for Trump. We might see, for instance, an attack on progressive prosecutors by withholding federal funds from “rule-of-law-deficient jurisdictions.” The Attorney General would be empowered to designate jurisdictions where the prosecutor willfully fails to enforce some provisions of the state and federal code, not as a matter of prosecutorial discretion in a particular case but as a matter of policy in every case, and authorizes the Attorney General to withhold funding until the jurisdiction changes its ways. You get the idea.
Of course, legislation like this will be immediately challenged, and some of it will be struck down. But that doesn’t faze the incoming administration. On the contrary, Trump believes—not without reason—that he can count to five on the Supreme Court much more easily than anyone who challenges him. More importantly, the fact that liberals and progressives will howl in protest at this legislation makes it more attractive, not less. Trump Republicans view this as a smashing-eggs-might-make-an-omelet moment. Trump’s brand of reactionary populism and in-your-face nationalism thrives on crippling once-settled norms. It lives for the outrage these attacks produce in the pages of the Washington Post, which Trump and his media enablers skillfully absorb into their overarching narrative about a whiny elite that has lost touch with real Americans. Even if the legislation is eventually rolled back, therefore, it will have served its purpose if it helps Trump promote an ascendant narrative about who wields power in this country, and how that power should be displayed.
Alongside the misuse of federal funding, the Trump administration will do what it can to support abusive state preemption of local law. As the Local Solutions Support Center (LSSC) explains, “Preemption occurs when a higher level of government (such as a state legislature) restricts or withdraws the authority of a lower level of government (such as a city council) to act on a particular issue.” At least in the abstract, preemption can be a useful tool to create uniform statewide standards. Lately, however, as LSSC describes in detail, Republican state legislatures have misused preemption “to prohibit local governments from advancing policies meant to address and advance equity.”
In recent years, states have abused preemption to block scores of progressive local initiatives in voting rights, public education, worker protection, immigrant rights, environmental protection, and many other policy domains. But one of the most pernicious areas of state preemption has targeted municipal efforts to cabin local police departments. LSSC has done the best work documenting this practice, and its 2021 white paper on the preemption of local police reform commands our attention. As LSSC shows, states have targeted local legislation that would have, for example, improved police accountability, shifted funding from police departments to mental health providers, restricted access to firearms, and protected the right to protest.
Because preemption so often pits Republican state legislatures against Democratic city councils—think Alabama vs. Birmingham, Tennessee vs. Memphis, etc.—it might look as though the federal government is sidelined in such battles. But the Trump administration will nonetheless try to put its thumb on the scale in support of preemption. For instance, cities sometimes challenge state preemption as a violation of the Equal Protection Clause or the Voting Rights Act. When this happens, look for the Department of Justice to submit an amicus brief in support of the state. If a state preemption case makes its way to the Supreme Court in the next four years, expect the Office of the Solicitor General to throw its weight behind preemption.
And I think the Trump administration will do more than simply join existing conflicts. I expect it to use its spending power to encourage state preemption. I would not be surprised, for instance, if it tries to make state funding conditional on preemption of all local laws inconsistent with a specified federal mandate. Relatedly, I also expect the Trump administration to use federal preemption as a weapon to defeat progressive initiatives at the state or local level. The administration may argue, for example, that local or statewide attempts to decriminalize marijuana were preempted by federal law.
If this is our future, how do we respond?
To begin, since the heart of the Trump attack will weaponize spending, abolitionists and reformers have to identify alternative funding streams. Democratic state legislatures and municipalities have to step up to replace some of the funding that formerly came from the federal government. Foundations and philanthropies have to help with the inevitable shortfalls, especially in places that will celebrate rather than resist the new funding paradigm. Needless to say, all of these sources combined cannot match the grantmaking power of the federal government, so total funding for alternatives to the carceral state will almost certainly fall, but we can at least soften the blow.
But begging money from those who have it will not create, and has never created, truly transformative change. Yes, we should try to avoid the worst of what the Trump administration will do, but even if we could replace every dollar, a defensive crouch will not help us find the path forward. To make our way in the new world, we need to understand that Trump and Trumpism are not primarily about the carceral state any more than they are about, for instance, the meaning of race and racism in politics and history. Rather, they are an attempt to embed and deify a particular story about U.S. life—about whose presence counts and whose voice should be heard. More than anything, Trumpism makes a claim on what society should consider as conventional wisdom. It is an ideological project committed first to constructing a particular narrative, and then to building a society that reflects it.
But no narrative has ever been defeated by silence, and we cannot meet this moment by ignoring it. Instead, we should develop and sharpen a much broader counternarrative—an inclusive narrative that reaches well beyond our usual circles and far beyond any single issue. As important as they are, we must realize that our decarceral brainstorms have to take place at the same time and with the same people who are brainstorming how to secure and guarantee the political, social, and economic welfare of all people who are socially marginalized. Abolitionist activist Kelly Hayes recently summed up the elemental challenge of the counternarrative in Inquest: “What we need to get real about, what actually matters to our enemies, is the hierarchy of who lives and dies, and what systems are used to enact that hierarchy.”
Importantly, we cannot do this if we think we already know the answers. As Hayes rightly observes: “Far too many people are focused on the performance of politics—strutting in circles on digital runways, draped in ideology—than on building relationships or building power. We need to get back to basics: building relationships, working across difference, and base-building. We need a lot of political education, less ego, and more humility.”
Still, though the challenge of this moment is great, we should recall the wisdom of anthropologist Clifford Geertz, who taught us that “ideology is a response to strain.” Trumpism projects strength precisely because it is weak, because it is under strain, because its symbols and values are incompatible with the world we are entering. It is no accident that Trumpism arose during Barack Obama’s presidency—recall that Trump joined punditry then as a birther—or that it achieved such apparent success within two decades of when white people will become a minority of the U.S. population. Trumpism looks backward as we drive forward. It lashes out with a frightened ferocity that we should recognize as the death rattle of a worldview whose days are numbered. For now, we are beleaguered. But no one should doubt our future.
Image: Logan Weaver/Unsplash
