Mimesis Law
24 April 2017

Debate: On Criminal Justice Reform, What Do We Have To Lose?

January 2, 2017 (Fault Lines) — Ed. Note: As the New Year brings with it a new administration, it seemed appropriate to consider what the impact would be on criminal law. We charged Andrew Fleischman and David Meyer-Lindenberg to debate whether President Trump will be good for criminal justice reform. This is Andrew’s argument. 

In the classic holiday film, Bad Santa, Billy Bob Thornton advises a young boy wishing for a stuffed elephant that he should try wishing in one hand and shitting in the other, to see which filled up first. This, in a nutshell, has been the Democratic agenda on criminal justice reform for the past eight years. On January 20th, when the time comes to tally the results, only one hand will be heavy.

See, despite eight years of fervently wishing for meaningful reform, partnered with the occasional commutation, there has not been much, if any, national progress on rolling back the leviathan of federal law enforcement. There has been the empty promise that federal prisons will be public, rather than private—but there are very few children comforted by the knowledge that an absent father’s jailers don’t have a profit motive.

And Obama visited a federal prison, which was a great symbolic gesture that likely helped all those prisoners serving symbolic sentences. The only true victory was the passage of a bill that reduced the disparities in sentencing between crack and powder cocaine—a bill of such wide political appeal that even Jeff Sessions managed to agree with it when he wasn’t admiring his noose collection.

There was the brief glimmer in the past year that some sort of federal sentencing reform might take place—that we might moderately reduce the sentences of federal drug offenders retroactively. But that was killed by Mitch McConnell, who feared handing the Democrats (and the American people) a win right before the election.

So, in short, Democrats have squandered their opportunity to do something meaningful on this issue. Where there has been significant sentencing reform, it has happened primarily in states like Georgia and Texas, who found religion after discovering the hidden costs of keeping hundreds of thousands in prison.

At a time when Ted Cruz was writing detailed plans about mens rea reform and the need to reduce the number of federal crimes, Hillary Clinton was publishing bland pronouncements about the need to avoid “racial profiling.”

So what changes under Trump? Let’s be clear up front: we’re just guessing. On the bad news front, there’s plenty of evidence: Trump delighting in the support of police unions, Trump telling cities to engage in more stop and frisk, Trump pushing for increased detention and deportation of immigrants, Trump doubling down on the prosecution of the Central Park Five, Trump feuding with the Koch brothers, Trump claiming that we just need to let police officers “do their job” and reassess only for some forms of non-violent crime, Trump picking Jeff Sessions to serve as attorney general even though he appears to believe that smoking marijuana is a moral failing worthy of punishment.

So what’s the good news? Two things: First, it’s unclear how Trump could be any worse on criminal justice reform. Second, there are several ways he could be better.

See, the stuff that Trump supports, like “stop and frisk,” are almost wholly outside the jurisdiction of the federal government. I suppose he could encourage park rangers to detain suspicious wildlife, or seek more proactive engagement on military bases, but the vast majority of people in the United States are governed at the local and state levels, not federally. And for all the “reports” and “consent orders” that the Obama administration spent the past eight years gathering up, none of it was likely to do much good in the face of a Supreme Court that thought stopping someone for no reason was fine as long as the hunch was borne out later.

By contrast, federal mens rea reform, which could meaningfully help increase the government’s burden in literally hundreds of thousands of federal regulations and statutes, is actually within the federal government’s power. So is a reduction in the amount of regulations, and the power of agencies to pass and enforce them, which has also been a central part of Trump’s agenda of heading agencies with the people who would most like to destroy them.

The Democrats have spent the past eight years pushing for a massive and well-funded federal government that would use its discretion wisely. Trump instead promises an executive branch too divided to effectively push for new regulation.

And there is the added benefit of Trump’s reduced credibility with the press. After eight years of the media assuming that our president had a “hidden side” in support of our civil rights even as the government spied on citizens, drones killed without process, and federal laws remained unchanged, we might start to see journalists looking critically for what is actually happening, rather than what we think the president secretly wishes were true.

After eight years of watching progressives fail to meaningfully help criminal defendants while claiming the best of intentions, we’re ready for a president who will either actually help, or fall boldly and loudly on his face. If Trump proves as embarrassing as his worst enemies hope, there’s always an election in four years, after all.

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  • Jim Tyre
    2 January 2017 at 12:25 pm - Reply

    In the classic holiday film, Bad Santa,

    And we begin the new year with proof that FL is only for serious writers. (ObCLS exception.)