Nora V. Demleitner
Alice Marie Johnson, whose life term President Donald Trump cut short, was the star of a Super Bowl ad. It portrayed Trump as the country’s leading criminal justice reformer, a man who actively and compassionately assists the downtrodden.
As is standard fare for Trump, the ad was based on half-truths and misleading claims. But that is not its worst feature. The ad was a cynical ploy to provide white voters with a feel-good message and an argument to rebut charges of Trump’s racism. At the same time, it reinforced the message of black criminality.
The ad began with a photo of Johnson, who is black, on the screen, along with the words “Alice Johnson was sentenced to serve life in prison for a nonviolent drug offense.” When Johnson’s face fades out, another set of words fade up: “Thanks to President Trump, people like Alice are getting a second chance.”
The video shows Johnson running toward her family. As she thanks Trump for the reunion, more words flash across the screen: “Politicians talk about criminal justice reform. President Trump got it done. Thousands of families are being reunited.”
Which justice reform is he talking about?
The spot conflated two federal criminal justice issues — the First Step Act and presidential clemency power. The president commuted Johnson’s sentence, which led to her immediate release from prison. She had served 21 years of a life sentence for a nonviolent drug conviction.
Reality TV star Kim Kardashian West championed Johnson’s case, even visiting the White House to make her argument. Johnson is one of only 24 people to receive clemency under the Trump administration, according to a list on the Department of Justice website.
Presumably, the reference to the release of thousands was to the president signing the First Step Act. The act has led to the early release of a good number of federal inmates. It retroactively decreased crack cocaine sentences and added other mechanisms, such as expansion of compassionate release.
The ad failed to indicate that both of the president’s attorneys general have insisted on continuing federal policies that have fueled the nation’s mass incarceration and increased disparities seen in the criminal justice system against black and brown people.
The Department of Justice has opposed First Step Act sentence reductions and releases. The department has also vilified progressive local prosecutors who have implemented reforms (which include not going after low-level drug offenders or choosing to divert cases from the criminal justice system).
At best, one could call this administration’s record on criminal justice reform mixed, at worst hypocritical. Certainly, the Justice department’s refusal to oversee local police departments and assist them in misconduct investigations does not show a commitment to combating racism or helping rebuild trust between police and local minority communities.
Clemency for a very select few
Most of the people Trump has given clemency to did not look like Johnson.
Of the other five commutations the president has issued so far, only one involved another drug offender, and that offender was not African American. In addition to the commutations, Trump has handed out 18 pardons. Rather than uniting thousands of families, as the ad claimed, Trump has used his clemency power to reunite just two dozen.
And the majority of his clemencies have been politically motivated.
Joe Arpaio, the notorious Maricopa County sheriff, received one even before he was sentenced. Others went to men like Scooter Libby, a former aide to Vice President Dick Cheney; Dinesh D’Souza, a right-wing commentator; Conrad Black, a former media mogul and Trump biographer; and Pat Nolan, a former Republican lawmaker.
Only two of Trump’s best known acts of clemency have gone to African Americans. One went to the above mentioned Johnson, featured in the Super Bowl ad, and the other went, posthumously, to Jack Johnson. The famous boxer was sentenced in 1920 for violating the Mann Act, when he traveled with a white woman he was in a relationship with across state lines. But two is hardly anything to brag about.
In fact, Trump has done less for nonviolent drug offenders with his commutation powers than many of his predecessors, including Barack Obama, a president Trump seems obsessed with outdoing.
Within his first three years in office, President Obama had given clemency to only 18 people compared with Trump’s 24.
But of those whose sentences Obama either pardoned or commuted, the majority, 11, had been incarcerated on nonviolent drug offenses. Only four of the people given clemency under Trump were nonviolent drug offenders.
The Alice Johnson ad falsely appeases voters who may be concerned that Trump isn’t addressing racial inequities in our criminal justice system and who may even be troubled by the president’s racist language.
We need a visual of the true beneficiaries of this president’s clemency power: A gallery of white, Republican men.
Nora V. Demleitner is the Roy L. Steinheimer Jr. professor of law at Washington and Lee University School of Law, Virginia.