State and local governments, not the president, have most of the power in the criminal legal system.

Prison Policy Initiative updates for June 11, 2025 Exposing how mass incarceration harms communities and our national welfare

Can they do that? A primer on the powers — and limits — of the president and federal government to shape the criminal legal system [[link removed]] The Trump Administration has made a lot of claims about how it will change the criminal legal system. We explain where the president and federal government have full control over the system, where they have some influence, and where their power ends. [[link removed]]

by Mike Wessler

There is little question that the President of the United States is the most powerful person on the planet. They can launch military strikes, shake the foundation of the economy, and dramatically alter our international alliances, all with a stroke of their pen. And if you have heard President Trump speak about the criminal legal system lately, you’d likely think the office also has the power to control who is arrested and incarcerated, and what the conditions are like when they get there. The truth, though, is much more complicated.

It is important to remember that the United States doesn’t really have a single, unified criminal legal system. [[link removed]]It has thousands of smaller systems, and state and local governments have direct authority over the vast majority of them. However, while the president and the federal government don’t have direct control over most of these systems, they have many tools at their disposal to indirectly impact how they are operated.

In this briefing, we explain the federal government’s traditional role in the United States’ criminal legal system, highlighting where it has direct control, ways it can exert indirect influence, and the relative size and scope of its power. It is important to note that, in this piece, we rely on how our government normally works, when limits on federal power are honored and where the president obeys court orders. We don’t explore every nuance of federal law or possible tools that the federal government could hypothetically deploy. Instead, we aim to help you understand the avenues of influence it has traditionally exercised.

Actions and statements from the Trump administration raise serious doubts about whether these limits will be respected. Understanding the contours of power and authority outlined in this briefing can provide clues about what to expect in the future and serve as a helpful barometer of how far actions by the administration have deviated from the standards of recent decades.

The federal criminal legal system: By the numbers

While the president and members of Congress may talk a lot about crime, prisons, and incarceration, the truth is they directly control only a small sliver of the overall carceral system.

As we explain in the latest edition of our flagship report, Mass Incarceration: The Whole Pie [[link removed]], there are roughly 2 million people incarcerated in the U.S. on any given day. Of those, only a relatively small portion are under the direct control of the federal government:

Approximately 204,200 are in federal prisons or jails; Roughly 48,000 are in immigration detention facilities.

In total, about 13% of incarcerated people — approximately 252,200 people — are under the direct control of the federal government. For context, the federal incarcerated population is only a little larger than the number of people in prisons in jails in the single states of Texas [[link removed]], which has 11% of the national incarcerated population, and California [[link removed]], which has 10%. Those numbers show that, rather than being a massive monolith, the federal carceral system is roughly the same size as the criminal legal systems in some of the larger states in the country.

Make no mistake, 252,200 people under direct federal control is a lot, but it represents only a relatively small portion of the total number of people behind bars on any given day in this country.

So, who has direct authority over the other 87% of people incarcerated in this country? State and local governments.

Independence of state and local authorities

State prisons and local jails hold the vast majority of people who are incarcerated in this country. Those facilities and systems are operated and overseen by state and local governments and are largely independent of the federal government. You should think of state prisons and local jails as systems that operate in parallel (and occasionally overlap) with the federal system, rather than as subsidiaries of it.

State legislators write laws that dictate what actions are considered crimes and the possible punishments for those actions. Police and prosecutors — operated by both state and local governments — enforce those laws by carrying out arrests and prosecutions. County sheriffs operate local jails. And the state government runs the prison system that confines people sentenced to incarceration by state courts.

State and local governments hold the vast majority of the control in the criminal legal system. The federal government plays a relatively small role.

Generally speaking, state and local governments hold the vast majority of the control in the criminal legal system, and the federal government plays a relatively small role.

Examining recent progress towards decriminalizing marijuana offers a helpful — albeit unique — example of how state and local governments operate in parallel with the federal government when it comes to law enforcement. Currently, 24 states [[link removed].] have made the recreational use and possession of marijuana legal. That means that state and local law enforcement cannot arrest or prosecute someone for simply possessing or using marijuana.

However, the possession of marijuana remains illegal under federal law. Even if you are in a state that has made recreational use of marijuana legal, the federal government could, in theory, still arrest and prosecute you for it. Usually, though not always, the federal government has respected states’ ability to write their own criminal laws, and in doing so, has avoided prosecutions that are contrary to state law.

Importantly, if someone is sentenced to incarceration, the entity that prosecuted them usually determines where they serve their sentence. If they’re prosecuted under state law, as most people are, they’ll usually serve their sentence in a state prison. If they’re prosecuted under federal law, they’ll likely serve their sentence in federal prison.

Federal influence over state and local policy

While the federal government has direct control over a relatively small portion of the nation’s criminal legal systems, the president, Congress, and the federal courts have many ways to exert indirect influence over how states and local governments address public safety, prosecute crimes, operate their prisons, and more.

It is essential to recognize that the federal government’s influence and power to shape state and local criminal legal system policy is not inherently good or bad. This power has been used to both shrink and grow the carceral footprint in America. Understanding the contours of these powers can help you see how they’re being used.

The president and the executive branch of the federal government

The president and the executive branch of the federal government likely have the most tools at their disposal to influence how state and local governments operate their criminal legal systems. Some of these mechanisms are direct actions that essentially force the hands of state and local governments by using the promise of providing or eliminating funding or threatening legal action, while others rely on the prominence and prestige of the presidency to exert pressure and encourage specific actions.

Control over federal spending

While Congress controls the amount of money budgeted for various federal government programs, the president has immense discretion over how that money is spent and how laws are implemented. From the money allocated by Congress, presidents can often direct money to their own priority programs, while offering fewer resources to programs that are less important to them. These choices can dramatically impact state and local criminal legal systems.

A prime example of this is the Department of Justice’s Office of Justice Programs [[link removed]]. This office provides millions of dollars in grants to state and local governments, as well as other organizations that provide services related to the criminal legal system. How this money is spent and what programs receive money have huge impacts on state prison populations and local police activities.

Under President Biden, many of these grants were awarded to organizations and programs designed to keep people out of the criminal legal system, reduce violence, and support victims of crime. However, shortly after taking office, the Trump administration cancelled roughly $820 million in Biden-era grants [[link removed]], indicating that they didn’t align with the administration’s priorities. The administration has said this money will instead be allocated toward programs that align with its focus areas, which many people assume means it will result in more money for policing and prison construction.

Additionally, the Department of Justice provides funding to state and local law enforcement through a series of grants and other programs. Many of these programs require state and local officials to comply with federal policing standards and collaborate with federal authorities on certain criminal investigations and prosecutions. This funding allows federal authorities to expand their reach and exert new pressure on local elected and law enforcement officials.

Another example of how executive branch agencies use money to shape state criminal justice policy is the Justice Reinvestment Initiative [[link removed]], which is partially funded by the U.S. Department of Justice. This program connects state leaders with experts to help them develop strategies to reduce crime, improve services for people with substance use disorder and mental health issues, and reduce spending on prisons and jails. Through this model, the federal government helps to lay the groundwork for state policy reforms. This framework allows the federal government, despite not having a direct voice in the decision-making for states, to influence state policies.

While the president cannot directly instruct states on how to operate their criminal legal systems, making funds available for specific uses can push them to take actions that the president wants. The money can motivate officials to follow the federal government’s lead, and conversely, when money dries up, force them to abandon strategies that aren’t in line with the president’s priorities.

Federal policing and prosecutorial power

The president appoints the attorney general of the United States to head the Department of Justice. Over the last fifty years, presidents have generally respected the independence of their attorneys general, based on the recognition that law enforcement should not be influenced by politics or personal grievance. The Trump administration has made clear it will no longer respect that independence [[link removed]].

While the attorney general is generally considered the top law enforcement official in the nation, they only have direct policing and prosecutorial power over allegations that federal crimes have been committed. As we explained above, this has traditionally been a relatively small portion of the total criminal cases around the country, with state and local governments maintaining jurisdiction over the vast majority.

It is important to note that the attorney general has incredibly wide discretion over which cases the Department of Justice pursues. There are a lot of actions that are criminalized by both the state and federal governments. However, in the vast majority of these cases, state and local authorities take the lead on arrests and prosecutions.

In theory, however, an attorney general could direct federal law enforcement to take primary authority over far more cases than it has traditionally pursued. This would swell the federal prison population and the federal government’s role in the criminal legal system. The fear of federal intervention in the criminal legal system can be used to coerce states to more aggressively pursue prosecutions that the president and federal government have prioritized.

Enforcement of civil rights laws

One of the most powerful ways that the federal government has positively impacted state and local law enforcement and prisons is through the enforcement of civil rights laws.

Even when state or local officials are responsible for policing or incarceration, they must still abide by civil rights protections in the U.S. Constitution. If they don’t, the U.S. Department of Justice can bring a federal lawsuit against the prison, police department, or other government body. These lawsuits often focus on things like racist policing practices, inhumane prison or jail conditions, and police brutality.

Often, these cases are resolved by consent decrees [[link removed]], in which the state or local government entity agrees to take specific actions to resolve the practices that violated federal law. In a break with the past, the Trump administration has announced that it is abandoning [[link removed]] many of these efforts to rein in abuse in prisons and jails and by law enforcement.

Pardons and commutations

Presidents have the power to pardon or commute the sentences of people convicted of federal offenses. A pardon absolves a person of their criminal conviction, ending any remaining time in prison or on probation and wiping the conviction from their record, like it never happened. A commutation, on the other hand, reduces a person’s sentence, but doesn’t remove the conviction from their criminal record.

Presidents can only grant pardons and commutations to people convicted of federal crimes.

It is important to note that a president can only grant pardons and commutations to people convicted of federal crimes. They have no power to change the criminal sentences of people convicted of state crimes, which means most criminal convictions in the country are outside of their reach.

Appointments to courts, agencies, commissions, and more

The people who run the day-to-day operations of the federal government matter, and the president appoints a significant number of judges, agency heads, and members of regulatory boards that shape criminal legal system policy in this country.

The president nominates people to fill vacancies in federal courts, including the United States Supreme Court. By nominating people who share their worldview on public safety, prison conditions, crime, and other issues, the president indirectly shapes how federal courts rule on these issues for decades to come. Importantly, these courts will also regularly be asked to weigh in on whether state or local policies violate the U.S. Constitution, giving them considerable influence on what and how criminal legal system policies are implemented.

Presidents also appoint the heads of most federal departments and most agencies in the executive branch. The people appointed to these positions are the ones managing the day-to-day operations of the federal government, making the specific choices about how money is spent, where staffing resources are focused, and how the administration implements federal laws.

Finally, the most overlooked appointments that presidents make are to the various rule- and regulation-making boards and commissions scattered throughout the government. These bodies are tasked with filling in the details of how specific legislation is implemented, giving them immense power to shape both the federal and state criminal legal systems. Recent examples include:

The Federal Communications Commission: In 2022, Congress passed the Martha Wright-Reed Just and Reasonable Communications Act [[link removed]], which tasked the Federal Communications Commission with issuing new regulations reducing the cost of phone calls from prisons and jails. The Commissioners took sweeping action to do just that. This impacted nearly every prison or jail in the country, regardless of whether it was run by the federal, state, or local government. The Federal Trade Commission: Under President Biden, the commission took action to address junk fees that private companies charge to incarcerated people — even those not in federal custody. While the final proposed rules didn’t go nearly far enough to protect people in prison and jail, they demonstrate the far-reaching impacts of actions by this body [[link removed]]. The Postal Regulatory Commission: Postal mail remains a critical way that incarcerated people stay in touch with their loved ones on the outside. This commission sets the cost of postage [[link removed]] and other rules around this service. The bully pulpit

When all else fails, the president can also use their prominence in government, ability to garner media coverage, and public platform to influence how the public views and thinks about issues, even if they have no direct power over those issues. This is sometimes referred to as “ the bully pulpit [[link removed]].”

There are few people more famous than the person sitting in the Oval Office. They have hundreds of media outlets clamoring for interviews. They can give speeches and statements that directly reach the public. And they usually have social media followings that reach hundreds of millions of people in the U.S. and worldwide.

While they don’t directly dictate policy, these are powerful tools, and when the president wants to, they can use them to raise awareness of issues they care about, pressure officials to take specific actions, or shift public sentiment and thinking broadly.

President Obama and President Trump have both used their bully pulpits — in far different ways — to discuss policing and influence the actions of local law enforcement:

In a 2014 speech, after a grand jury failed to indict a police officer who killed Michael Brown, President Obama gave a speech [[link removed]] encouraging calm in the wake of that decision, giving voice to the frustration that communities of color feel with police, and encouraging local law enforcement to work to build public trust by improving their practices. President Obama had no direct say over the practices of local police departments, but by using the bully pulpit, he helped to draw public attention to the need for improvement in policing. Meanwhile, during his first term, President Trump was speaking [[link removed]] before a group of police officers in New York when he appeared to encourage more violence by law enforcement and urged them not to “be too nice” to people who are arrested. Again, President Trump had no authority over the specific policing practices of local departments, but his words provided a permission slip to officers to be more violent towards people in their custody.

Presidents have little direct authority over how local police officers do their jobs, but by using their bully pulpits in drastically different ways, one called on police to be part of a solution that improves trust in law enforcement, and the other encouraged more police violence. Both remarks helped to sway public opinion and police actions.

Congress

The president isn’t the only one with the power to influence the broader criminal legal system. Congress, through its control of federal spending, can pressure state and local governments to adopt its preferred policies on crime, policing, and incarceration. While it generally doesn’t have the power to tell state and local governments exactly what to do, it regularly uses federal funding to both incentivize actions it wants and punish actions it doesn’t.

The most infamous example of this is the 1994 Crime Bill [[link removed]]. While this measure took many steps to expand the federal criminal legal system, arguably its most notorious impact was how it incentivized states to lock up more people for longer periods of time. The bill included financial payments for states that adopted so-called “tough-on-crime” policies. States that adopted these misguided policies were given billions of dollars to fund the construction of new prisons.

This is far from the only time Congress has flexed its financial power to get state governments to make their criminal legal systems harsher. Other examples include:

A 1991 law [[link removed]] that threatened to withhold billions of dollars of federal highway funding for states that didn’t automatically revoke the drivers’ licenses of people convicted of drug offenses. A 1996 law [[link removed]] that permitted the federal government to enter into agreements with local law enforcement agencies to enforce federal immigration law, with a pot of money available to entice government officials to join this effort.

Congress has also used this power for good by incentivizing or otherwise encouraging state and local governments to take meaningful steps to promote alternatives to incarceration, improve their criminal legal systems, and make their prisons and jails safer and less deadly:

The Prison Rape Elimination Act [[link removed]] is a bipartisan law that sought to end sexual assaults against incarcerated people. It not only established standards for the elimination of sexual assault behind bars, but it also offered financial incentives for prisons and jails to comply with those standards and to report data on their progress to the federal government. Finally, and unrelated to money, the law mandates that it be publicly announced which states are complying with the law and which are not, which serves as an additional motivation for states. The Deaths in Custody Reporting Act [[link removed]] sought to bring transparency to the deaths of incarcerated people by threatening to reduce federal funding to states that did not report certain information to the federal government when someone dies in one of their facilities. The Juvenile Justice and Delinquency Prevention Act [[link removed]] offered financial incentives to stop states from incarcerating young people for “ status offenses [[link removed]]” such as curfew violations, stop states from incarcerating young people with adults, and address racial disparities in the incarceration of young people. States that comply with the law receive additional federal funding.

While Congress’s power to directly change state and local policy is limited, it understands that many cities, states, and counties rely on federal money to function. This provides Congress with a powerful tool to exert its influence far beyond Capitol Hill.

Federal courts

Federal courts — including the U.S. Supreme Court — have jurisdiction over a relatively small number of criminal cases, and they only directly adjudicate the guilt or innocence of people accused of federal crimes. Despite this, their rulings can have reverberations throughout state and local criminal legal systems.

That’s because federal courts have the authority to rule on whether state laws violate the U.S. Constitution or other federal laws.

During the latter half of the 20th century, federal courts regularly used their authority to make the criminal legal system fairer and less harsh, telling states they cannot:

incarcerate people in cruel and inhumane conditions [[link removed]]; prosecute people for having a substance use disorder [[link removed]]; jail someone simply because they are too poor to pay a fine [[link removed]]; and much more.

These rulings have been particularly impactful because federal court decisions are binding on all levels of government, including presidents, governors, and all lower courts. Presidents and other government officials are constitutionally bound to follow these orders.

In recent years, however, the Supreme Court in particular has become increasingly reluctant to exercise this authority and has become more likely to defer to the executive branch to answer questions in this realm, rather than acting as a true check on its power.

These are not normal times

It is important to remember that everything written in this piece reflects how things normally operate. Anyone who has been paying attention since the start of the second Trump administration knows that we are living in decidedly not-normal times.

For example:

It is normal for the president to appoint an attorney general, but for that attorney general to essentially act as the president’s personal lawyer [[link removed]] is not normal. It is normal for the president to exercise discretion on how money allocated by Congress is spent, but the president’s refusal to spend funds that Congress appropriated [[link removed]] for a specific purpose is not normal. It is normal for the president to disagree with court rulings, but to refuse to follow court orders [[link removed]] is not normal. It is normal for the president to have a preference about what governors and state legislators do in their states and what individual mayors and city councils do in their cities, but threatening governors and mayors [[link removed]] with prosecution over these policy disagreements is not normal.

These unprecedented times make it hard to predict what is going to happen in the criminal legal system and in the numerous gray areas where the authority of different parts of the government overlaps. In normal times, it’s possible to guess how some of these conflicts would play out, but at a time when one branch of government is seeking to the trample the powers of the other branches and of the individual states — and those other branches and the states are largely letting it happen — all the normal bets are off.

What does this mean for the criminal legal system at the state and local level?

While the federal government has many tools at its disposal to influence policies related to crime, policing, and incarceration, the truth is that most of the power over these issues is in the hands of state and local officials.

Most of the power over these issues is in the hands of state and local officials.As the Trump administration works to expand its reach in the criminal legal system, it is easy to feel that we’re helpless. That couldn’t be further from the truth.

By recognizing that state and local leaders make most of the decisions in this area, advocates can push them to stand up to the pressures of the federal government. They can urge them not to cooperate with unconstitutional and immoral actions by federal law enforcement. They can ask them to forgo funding that federal officials might use as leverage to coerce them into implementing harsh and misguided policies. And they can take action to work to make the criminal legal system fairer, smaller, and less punitive, even if the federal government has abandoned that cause.

State and local leaders are not powerless in these situations. It may be up to us to remind them of this fact.

***

For more information, such as detailed footnotes (including notes about immigration and the Insurrection Act), see the full version of this briefing [[link removed]] on our website.

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We're tracking his actions on our website [[link removed]] to show how he's making America's criminal legal system harsher, less effective, and even more unfair.

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This new briefing [[link removed]] looks at some hard-to-get data that provides a glimpse into the consequences of prison transfers.

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Our work is made possible by private donations. Can you help us keep going? We can accept tax-deductible gifts online [[link removed]] or via paper checks sent to PO Box 127 Northampton MA 01061. Thank you!

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