Last Updated: February 18, 2025

Beginning on the campaign trail, President Trump pledged to make sweeping changes to the criminal legal system in the United States, changes he began implementing on his first day in office. Within hours of his inauguration, Trump ordered the Department of Justice to expand its use of the federal death penalty, instructed federal agencies to incarcerate transgender women in men’s prisons, and rescinded several Biden-era executive orders on policing and private prisons, among other things. These actions represent just a small fraction of the policies he proposed during his campaign, like deploying the National Guard to act in place of local police, expanding the types of crimes that are eligible for the death penalty, and launching civil rights investigations of prosecutors who ran on reform platforms in Chicago, Los Angeles, and San Francisco. 

The president has the authority to make numerous changes to criminal legal policy and practice through executive order, administrative rule, grant funding, and litigation, but some of the policies President Trump proposed on the campaign trail would require significant legislative or judicial action. Throughout this brief, we have noted what action can be taken directly by the president and what levers he has to influence other branches and levels of government. 

Each section of this brief summarizes a different policy of the second Trump administration with data, research, and expert sources. The brief is not an up-to-the-minute accounting of every administrative action but instead a resource for journalists interested in digging deeper into the implications of the administration's criminal legal policy agenda. It will be updated regularly throughout the first 100 days of the administration as additional policy actions and proposals roll out. 

Table of Contents

I. Death Penalty

II. Privatization

III. The Laken Riley Act

Additional sections on tthe role of local police in immigration enforcement, stop-and-frisk, and more will be added in the coming days. 

Research on impact of the death penalty²

• There is no evidence that the death penalty deters murder or protects police officers from violence.
  • A meta-analysis conducted by the National Research Council of the National Academies found that research has not identified any evidence that the death penalty has an influence on crime rates and that claims about the impact of capital punishment on crime “should not influence policy judgements.”
  • Another analysis found that homicide rates, including murders of police officers, are higher in states that have the death penalty.

• Wrongful convictions are common in capital cases due to problems such as inadequate legal counsel, flawed eyewitness accounts, inaccurate forensic evidence, and false or coerced confessions. 
  • Since 1973, 200 people have been exonerated and released from death row. 
  • To put that in perspective, for every eight people who have been executed, one person on death row has been exonerated.
    
• The death penalty is marred by racial bias, and Black people are disproportionately sentenced to death and executed. 
  • Four in 10 people on death row are Black, despite Black people making up just 13% of the population. 
  • The odds of receiving a death sentence are much higher if the victim was white, with studies showing rates 2x or 3x higher for killing a white person than a Black person depending on the state. 

• The death penalty costs taxpayers more than life without parole sentences. 
• At the federal level, a 2010 study by the Administrative Office of the U.S. Courts found that a death penalty case costs nearly eight times more than a non-death penalty case. 
• Most people who are sentenced to death end up spending life in prison, but at a highly inflated cost due to the additional legal costs and appeals process.
  
•  The United States is an international outlier when it comes to the death penalty. 
• The death penalty has been abolished in practice or law in 144 countries, and the U.S. had more known executions in 2024 than every country except Iran, Saudi Arabia, Iraq, and North Korea. 

Opportunities for reporting

• Track federal capital cases. The federal government sought the death penalty in very few capital crimes under the Biden administration, and that is poised to change under Trump’s second administration. The task for journalists now is to closely track every case in which the federal government seeks the death penalty, including those that are transferred from state courts. 

• Follow changes to the federal execution protocol. Before leaving office, Attorney General Merrick Garland withdrew the federal execution protocol after a multi-year review process raised questions about the suffering caused by the drug authorized by that protocol (pentobarbital). The new Attorney General has ordered DOJ officials to decide whether to reinstate the pentobarbital protocol or to pursue other means of executing people. There will be myriad questions to investigate regarding the methods outlined in the new protocol, whether it involves pentobarbital, a multi-drug cocktail, or one of the methods recently resumed at the state level (electric chair, gas, firing squad, etc…). 

• Monitor the treatment of the 37 people whose death sentences were commuted by former President Biden. President Trump’s executive order instructed the Attorney General to “take all lawful and appropriate action to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes” and to determine whether they are eligible to be charged with state capital crimes as a way to ensure they are executed. Journalists in the states where those individuals could be resentenced and are currently incarcerated are especially well-positioned to follow the repercussions of this executive order on their lives. 

• Track additional actions related to the death penalty. On the campaign trail, President Trump called for more crimes–including the sale of drugs–to be eligible for the death penalty. (He also called for police officers to shoot people who steal from stores, although that is not technically related to the death penalty, as those shootings would occur before conviction or even arrest.) Trump’s recent executive order instructed the “Attorney General [to] take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment,” which could be the precursor to further attempts to expand eligibility for the death penalty. Journalists will need to closely monitor his statements, executive orders, and legislative priorities for additional changes. 

Experts on the federal death penalty

• Laura Burstein is the director of the Capital Litigation Communications Project, which provides communications support to attorneys representing death-sentenced people around the country. She is available to help connect journalists with experts who can answer their questions on a range of death penalty related questions. 
• Ruth Friedman is the director of the Federal Capital Habeas Project, which represents people on federal death row, tracks federal death row generally, trains attorneys in death penalty representation, and consults with other capital attorneys. Prior to the Capital Habeas Project, she represented people on death row in Alabama and Georgia at the Equal Justice Initiative and the Southern Center for Human Rights, and has litigation experience at both the federal and state levels. 
• Robin M. Maher is Executive Director of the Death Penalty Information Center. Previously, she was Director of the American Bar Association (ABA) Death Penalty Representation Project, where she over­saw the cre­ation of the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.
• Austin Sarat is an attorney and political scientist who teaches at Amherst College, where he founded the department of Law, Jurisprudence, and Social Thought. His research focuses on botched modern executions. He is the author of Gruesome Spectacles: Botched Executions and America's Death Penalty. 
• Cassy Stubbs is the director of the ACLU Capital Punishment Project where she has served as lead and associate counsel on behalf of death row defendants in trials and appeals throughout the South, including Alabama, Mississippi, Louisiana, South Carolina, North Carolina and Tennessee. She has also worked with numerous organizations and ACLU affiliates to file amicus briefs in capital cases in state and federal courts around the country. 

Background

When former President Biden took office, one of his first actions was to issue an executive order instructing the Attorney General not to renew U.S. Department of Justice contracts with private prison companies. While this order resulted in the transfer of about 14,000 people from privately managed facilities to those managed by the Federal Bureau of Prisons, it did not affect contracts between private prison companies and U.S. Immigration and Customs Enforcement or the U.S. Marshals Service, both of which have much larger contracts with CoreCivic and Geo Group, the two largest private prison companies. 

Changes enacted by second Trump administration

At the federal level

On his first day in office, President Trump rescinded nearly 80 executive orders that were issued by the previous administration. Among those was Executive Order 14006, which eliminated the use of privately operated prison facilities by the U.S. Department of Justice. By rescinding the order, President Trump has cleared a path for the DOJ to resume contracting with private prison companies. While it is not yet known whether the Bureau of Prisons will enter into new contracts with these companies, Trump’s nominee for Attorney General, Pam Bondi, previously lobbied on behalf of Geo Group. 

At the local or state level

President Trump’s executive order has no direct impact on state or local contracts with private prison companies. For more information on state use of private prisons, see this report from The Sentencing Project. 

Data on private prisons

• The Federal Bureau of Prisons currently maintains a regularly updated website with the total number of people incarcerated in federal prisons and the share of those people held in private facilities. The site can also be used to generate reports showing the number of people held in particular facilities, states, or regions. 
• The Brennan Center for Justice published an analysis of recent federal contracts with private prison companies, including through the Bureau of Prisons, the U.S. Marshals Service, and Immigrations and Customs Enforcement. 

Research on the impact of private prisons

• Private prisons create perverse incentives to incarcerate more people.
  • A 2020 study found that the use of private prisons leads to higher incarceration rates and longer sentences. These findings were particularly strong in jurisdictions with overcrowded public prisons and those with higher degrees of corruption.
  • Another study found that people sentenced to private prisons serve longer terms than those sentenced to public prisons, even after accounting for other differences between those groups. 

• Violence is more common in private prisons, against both incarcerated people and prison staff. 
  • A 2016 study by the Office of the Inspector General at the U.S. Department of Justice found that “in most key areas, contract prisons incurred more safety and security incidents per capita than comparable [public] institutions.”
  • An earlier report from the U.S. Department of Justice found that the rate of violence at private prisons was 38 percent higher than the rate at public prisons. 
• Some studies suggest private prisons may increase recidivism rates. 
  • While research on private prisons’ broader community safety outcomes is limited, studies from Minnesota and Oklahoma have found that recidivism rates were higher for people confined in private prisons compared to public prisons. 
• Private prisons do not result in cost savings for taxpayers. 
  • Despite paying prison staff less on average than those who are state employees and maintaining staffing ratios that result in more incarcerated people for every staff member, studies have shown mixed results, and a 2009 meta analysis by researchers at the University of Utah found that “[c]ost savings from privatizing prisons are not guaranteed and appear minimal.” 

Opportunities for reporting

• Check in on the federal prisons in your jurisdiction. With this executive order in place, federal officials may look to transfer people into private prisons so that they do not have to pay to repair deteriorating public facilities. The Justice Department’s Inspector General issued a scathing report about the state of federal facilities in 2024 after hundreds of deaths across the country. The year prior, the same watchdog reported that the 123 federal prisons in the country need roughly $2 billion worth of maintenance work and most are "aging and deteriorating." If there is a federal prison in your jurisdiction, what kind of condition is it in? Is there a history of conditions-related litigation? How are conditions in the private facility where people are relocated (especially given the finding that violence is more common in private prisons)? How far away will people be moved? How do their loved ones feel about the possibility of a transfer to a private prison?

• Broaden your coverage beyond just private prisons. Media coverage of privatization in the criminal legal system tends to focus on prisons, but there are a whole host of corporations that do business with the corrections industry in the U.S., including those that provide transportation, equipment, food, medical care, technology, communications, architectural services, and more. Worth Rises maintains a database of corporations contracting with corrections and immigrant detention.

• Follow the implementation of (and the fights against) new rules capping the amount private companies can charge people for prison calls. In 2023, President Biden signed the Martha Wright-Reed Act, allowing the Federal Communications Commission to limit the cost of phone calls from prisons and jails for the first time. The FCC’s changes are being fought in court: Attorneys General in 14 states are currently challenging them, saying that the caps on prices unfairly divert money away from prisons and jails. Follow all of these lawsuits, how price changes are being implemented in facilities in your community, and how Trump’s new FCC commissioner will handle the new regulations. 

• Investigate other money-makers for companies operating in prisons and jails. Some of these same telecommunication companies impacted by the new FCC rules sell or provide tablets – for entertainment, communication, or educational purposes – in jails and prisons. Many facilities are locked into multi-year contracts, either with tablets for sale or rent at a high price, or provided for “free” with the providers allowed to set their own prices for services (such as money transfers, music, and email) without state oversight. Incarcerated people also purchase many items in commissaries. The Appeal published a database of most prisons’ commissary lists, with the availability, price, and markup of products across several categories, including food, personal hygiene, and religious items. Investigate commissary costs in your local prisons and jails (with special attention paid to urgently needed items, like fans in the hot summer months) and the contracts between telecommunication companies and local jails/prisons (with special attention paid to new contract features like bundling). 

• Monitor how these policies overlap with the administration's immigration actions. The newly passed Laken Riley Act sets the stage for a dramatic increase in detention of undocumented people accused (not convicted) of a wide range of crimes, including shoplifting. There are roughly 40,000 people in ICE detention, and 90% of them are in private facilities. If President Trump signs the Laken Riley Act as expected, ICE estimated that they would need capacity to detain an additional 110,000 people. 

Experts on privatization

• Bianca Tylek is the Founder and Executive Director of Worth Rises, a national organization working to end the financial incentives for incarceration. Worth Rises has worked on issues ranging from the cost of phone calls in jails and private equity investments in prisons to unpaid prison labor and jail visitation bans. Previously, Bianca worked at the Brennan Center for Justice and the American Civil Liberties Union and co-founded College Way, a preparation program for students on Rikers Island interested in pursuing higher education upon their release.