While President-elect Donald Trump's impending return to the White House has many criminal justice reformers preparing for battle, given his scorched-earth rhetoric on crime and immigration on the campaign trail, hope for meaningful change persists in varying degrees among advocates after Trump's backing of reform legislation during his first term.

On the one hand, Trump has vowed to expand the use of the death penalty, strengthen qualified immunity for law enforcement and suggested using the powers of the federal government to go after his political enemies. And yet, during his first term, he also signed into law one of the most consequential criminal justice reform laws in decades — the First Step Act, a landmark sentencing and prison reform measure that passed with broad bipartisan support — and is arguably one of Trump's biggest legislative achievements during his time in the Oval Office.

Nevertheless, organizations like the American Civil Liberties Union are gearing up to fight for protection of civil rights, said Yasmin Cader, a deputy legal director with the organization.

Cader said they have urgent concerns about a potential acceleration of mass incarceration, encouragement of brutal policing practices, the pursuit of extreme charges and sentences, the expansion of the death penalty and a push by Trump to prosecute perceived enemies.

The ACLU is mindful, Cader said, that the First Step Act was "a really monumental piece of criminal justice reform" that happened under the first Trump administration, and they hope the act can be expanded. "But [we're] cognizant that, while that occurred, there are also these contradictory steps and measurements and actions that were taken both during that term, and have been threatened to occur during the next term, that could really in many ways counteract that progress," Cader said.

What is unpredictable is how Trump's promises of mass deportations of undocumented immigrants will play out, the amount of federal resources Trump may direct toward such an endeavor, and what impact that could have on criminal justice reform, according to sentencing expert Doug Berman, a law professor at Ohio State University's Moritz College of Law.

Berman told Law360 that he and others think Trump is likely to increase the number of deportations, but that it may not rise as precipitously as some are expecting.

The broader themes of sentencing reform in particular, Berman said, seem still interestingly up in the air, since Trump has been eager to paint crime in illegal immigration terms and push the idea of combating rampant "migrant crime."

"I can easily imagine a world in which, with his allies in Congress, they put in a bunch of mandatory minimums and elevated sentences for anything immigration related, but then that maybe even make​s some space to not do anything​ [more], or maybe even reduce sentences and other in other ways​," Berman said.

Ed Chung of The Vera Institute of Justice, a nonprofit that advocates against mass incarceration, said he is very concerned that the next Trump administration might backtrack on steps taken by the Biden administration regarding accountable policing and more comprehensive approaches to public safety.

For example, in May 2022, Biden issued an executive order enacting several policing reform measures, including the creation of a national database cataloging instances of federal law enforcement officer misconduct, and the provision of technical assistance and guidance to state, local and tribal law enforcement on investigating and prosecuting civil rights violations.

"There is a question and a special danger that those efforts would be pulled back. Trump has spoken actively on the campaign trail about the need to take the shackles off of policing, if you will," Chung said.

There is nevertheless hope among advocates from across the political spectrum that meaningful progress on some criminal justice reform issues is within reach.

Rachel Wright, the national policy director of Right On Crime, which advocates for a conservative approach to criminal justice reform, cited one piece of legislation that's gathered bipartisan support in Congress: the Safer Supervision Act.

The bill calls for broad revisions to the use of supervised release — a post-incarceration probationary period akin to parole — that is imposed as a matter of course by judges in the vast majority of federal criminal cases.

Critics say supervised release is being overimposed, with over 110,000 people under supervision at any given moment. According to the most recent statistics from the U.S. Sentencing Commission, supervised release was ordered in 82.5% of all felony and Class A misdemeanor sentences handed down in fiscal year 2023, or a total of 52,907 individual defendants.

Reformers argue this system needlessly overburdens probation officers, diverts attention away from high-risk offenders who need supervision the most and makes it harder for low-risk people to reintegrate into society.

The Safer Supervision Act would require judges to perform individualized assessments of defendants and lay out reasoning on the record as to why supervised release should be imposed. The legislation would also create more paths for early termination and give courts greater discretion on how to deal with minor drug use violations.

"If there are positive incentives in the form of reducing the time of supervision, then compliance with supervision is going to increase," Wright told Law360. "This bill [has] been bipartisan and bicameral for the past few years, and so I have no reason to think that it doesn't have the legs to move in the future."

As for the First Step Act, Wright said many of the same legislators who backed the law in 2018 are still in office now and will continue to be when the new Congress is sworn in next month. Some others who supported the bill, meanwhile, are slated to be part of the next administration.

That group includes Pam Bondi, Trump's presumptive nominee for U.S. Attorney General, according to the America First Policy Institute, a pro-Trump think tank where Bondi serves as litigation chair.

In 2018, while serving as Florida's top law enforcement official, Bondi joined with 37 other state attorneys general in urging Congress to pass the First Step Act.

"So I feel optimistic and encouraged and excited about what criminal justice policy will look like in 2025, 2026 and beyond, because I think there's a lot of opportunities to build upon that success," Wright told Law360.

The First Step Act contains a number of sentencing reforms designed to reduce the federal prison population, including the expansion of pathways for early release and changes to penalties for certain offenses.

Much of the credit for Trump's backing of the law goes to the advocacy of his son-in-law Jared Kushner, whose father Charles Kushner — currently Trump's planned nominee for ambassador to France — served time in federal prison in the 2000s for campaign finance violations, tax evasion and witness tampering.

According to anonymous sources cited in a 2020 report by Axios, however, Trump later soured on following Kushner's advice in signing the First Step Act into law, fearing it had harmed him politically. The White House at the time pushed back, telling Axios that Trump remained proud of "the historic work that he's done to benefit all communities" and that the First Step Act "made historic strides toward rectifying racial disparities in sentencing."

Berman said that, while he understands, politically, why Trump "didn't keep leaning into it," pro-reformers in government may still be able to sway the President-elect.

For example, Sen. Chuck Grassley, R-Iowa, who is slated to retake his old position as chair of the Senate Judiciary Committee in the next Congress, has teamed up with the current chair, Dick Durbin, D-Illinois,​ in recent years to co-sponsor follow-up legislation to the First Step Act, including measures to make some of its reforms retroactive.

"There's a lot of things that Trump and his team are going to want from Grassley when it comes to nominees and things like that, I can almost see the path to getting at least smaller reform bills through becomes easier, if people really want that now," Berman said.

For all the successes of the First Step Act, Charles "Cully" Stimson, a policy expert at the Heritage Foundation — which backed the law's passage — said there is still work on the act's implementation that could be done during the second Trump administration.

One of the key provisions of the First Step Act requires the U.S. Department of Justice to develop a risk and needs assessment program for use by the Federal Bureau of Prisons to assess prisoners' recidivism risk and identify "dynamic needs" to be targeted that may reduce recidivism.

Stimson told Law360 that while "the [first] Trump administration was very good about rolling out and doing risk assessments for all people in federal prison," the needs assessments provision is still unfinished and will then need to undergo a series of lengthy reviews.

"It's harder, no doubt, but there's work to be done," Stimson said. "If they just did that and started working out kinks in the needs assessment piece, and then started studying it, that would be fulfilling the promise of the First Step Act in the first place."

Beyond the incoming Trump administration, Chung of the Vera Institute said many significant criminal justice reforms are being pushed forward at the state and local level.

For example, Oklahoma has, in recent years, significantly reduced its prison population by reclassifying crimes like simple drug possession and low-level property crimes from felonies to misdemeanors, and providing reentry support for people exiting prison.

Chung cited Michigan as another state which has enacted meaningful reforms, such as expanding eligibility for people with certain felony and misdemeanor convictions to have their record expunged, which can help make it easier to find housing and employment post-incarceration.

Cader of the ACLU said, ultimately, working for criminal justice reform is a long-term and ongoing process but one that has yielded some remarkable shifts over the years. She noted that in the 1990s, "mass incarceration" was not even a term in most people's lexicon.

"We're committed, and we have been for decades, and we're going to continue to do so, because it is just so central to the protection of civil rights and civil liberties that we keep our eye on that change in the criminal legal system," Cader said. "It's paramount."

--Editing by Dave Trumbore.

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