Mimesis Law
15 December 2017

Debate: Trump Will Throw Fuel On Our Criminal-Justice Dumpster Fire

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 David Meyer-Lindenberg and Andrew Fleischman to debate whether President Trump will be good for criminal justice reform. This is David’s argument. 

Donald Trump may not have taken office yet, but that isn’t stopping his enemies from blaming him for everything under the sun. His most innocuous comments, like a “Happy Hanukkah” tweet, are now routinely taken as proof of something sinister. With all the gloomy, bad and outright apocalyptic press he’s getting, it’s increasingly hard to distinguish between valid criticism of Trump, his cabinet or what little we know of his agenda and partisan outrage.

But even those willing to engage with Trump on honest terms have to confront the fact that we don’t know what he’s going to do. He says contradictory things about his plans. He leaves important issues unaddressed. And when he and his team do set forth an agenda – as with immigration policy, where he committed to deporting illegals en masse, at least before he walked back that promise in the last days of his campaign – he says little to nothing about how he’s going to implement it.

Immigration is a good example. As Fault Lines contributor Mario Machado points out, Trump’s promise to step up deportation beyond what Obama, the biggest deporter of illegal aliens in the nation’s history, has done is probably impossible to keep. There’s only so much ICE can do – so much money, so many detention facilities – and far too many undocumented people in the United States.

And then there’s criminal justice, the red-headed stepchild of sane policymaking and a favorite of politicians looking to reassure a worried public that they’re “doing something.” By any objective criterion, America’s never been safer. But voters don’t believe it: over half now say crime got worse in the past ten years.

In fact, the decline in violent and property crime that began in the early ‘90s continued through Obama’s time in office, and campaign-stump claims that we’re in the middle of a new crime wave are provably wrong. But true or not, a belief held by sufficiently many voters constitutes political capital, and Trump, savvy politician that he is, may very well decide to use it.

So what could Trump do to fight crime? One obvious choice would be to make hay of the outrage du jour. In the ‘90s, it was crack cocaine, which at least had the advantage of being a real phenomenon. Today, people are panicking over a fictitious college-rape epidemic, citing made-up statistics and putting liars on pedestals in an effort to persuade Congress and the body politic that American campuses are now more dangerous to women than Somalia is.

There’s also been a push to criminalize “revenge porn,” the sharing of intimate photos of someone without their consent. This may or may not be a deplorable thing to do: advocates of revenge porn criminalization have proposed laws that’d make it a crime to share Anthony Weiner’s dick pics, and, when this was pointed out to them, suggested “public interest” safeguards that don’t work. But the really insurmountable obstacle to a ban is that revenge porn is protected by the First Amendment. Unless and until the Supreme Court holds that it falls into a recognized category of historically unprotected speech, for which there are no obvious candidates, or, even less likely, creates a new category, laws against revenge porn are unconstitutional.

So what’s Trump going to do? Will he care that claims of serial campus rape are fraudulent, or that colleges, under threat from Obama’s DoE, have set up star chambers for students accused of sex crimes, denying basic due process to the young people in their charge? Does he know that the Constitution protects something as unpopular as revenge porn, and if not, will it interest him once he’s been told?

The signs aren’t good. Trump showed precious little concern for the Constitution when he joined Hillary Clinton in endorsing a ban on gun ownership for people on the government’s no-fly list. He recently called for the prosecution of people who burn the flag. Yes, his enemies are often wrong to call his plans unconstitutional: he wouldn’t be violating the Emoluments Clause by refusing to put his businesses in a blind trust, for instance, and it’d be fine for him to keep Muslims from immigrating to the U.S. under the plenary power doctrine. But the limits of his knowledge and lack of appreciation for the nation’s founding document are pretty apparent.

When it comes to campus rape, he may very well do the wrong thing, defy BuzzFeed’s expectations and buy into the claims. And why not? For one, his immigration proposal suggests he’s not one to get bogged down in the details, like whether what he wants to do can actually be done (or, in this case, comports with reality.) For another, stories of rape on campus are by their very nature compelling. Remember Mattress Girl? Rolling Stone’s Jackie, and the wrongful outrage that ensued? Who wouldn’t want to address something so bad?

By contrast, the victims of the campus-rape witch hunt – the wrongfully accused, those denied their due process rights, college students expelled and hounded out of polite society over allegations that’d never stand up in court – are a lot less visible. And because the harms they suffer, including loss of education, career prospects and lifelong branding as a sexual predator, are more abstract than allegations of rape, they tend to be less sympathetic.

Why wouldn’t Trump be moved to fix the rape epidemic, notwithstanding the fact that it doesn’t exist? Who cares if a few people get stepped on in the process? Will it be Trump, who, if his history of abusing eminent domain to get his way is anything to go on, has no qualms about breaking a few eggs to make an omelet?

Finally, even if Trump does defy expectations and tries to put an end to the insanity, he’ll run into resistance from the remains of the Obama camp. President Obama just appointed Catherine Lhamon, the architect of DoE’s campus star-chamber system, to head up the Commission on Civil Rights. In other words, the woman whose signature policy resulted in the denial of civil liberties to countless college students will soon be responsible for advising Trump on whether Americans’ civil liberties are being violated.

Will Trump follow in Ronald Reagan’s footsteps and appoint someone new to the post? That’d take initiative and commitment to reform, two areas in which it’s reasonable to suppose Trump will be lacking. And if he doesn’t get rid of her, she’ll be free to play the Red Witch to Trump’s Stannis Baratheon and whisper in his ear.

There are those who claim Trump will be the best thing ever for criminal justice reform, perhaps because he may at last act on the Koch brothers’ advice and bring about federal mens rea reform.* But every sign – everything from Trump’s record to what we know of his personality, from public hysteria about crime to Obama’s legacy minions to Trump’s pick for Attorney General, a man who never met a civil asset forfeiture program he didn’t like – points the other way.

Realistically, the best we can hope for is a Trump presidency that’s less awful on criminal justice issues than his predecessor’s. And the only good thing to say about the mess we’re in is that that’s a pretty low bar.

*Of course, Trump may be too busy throwing the Kochs’ guests off his golf courses to care about something so eminently sane and overdue.

4 Comments on this post.

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  • Tom
    2 January 2017 at 8:50 am - Reply

    Thanks for the mental image of Trump and Lhamon on a giant table sized map of the US.
    I think I just threw up in my mouth a little.

    • David Meyer-Lindenberg
      3 January 2017 at 11:32 am - Reply

      Winter has most definitely come.

  • Anon
    3 January 2017 at 7:35 am - Reply
  • David Meyer-Lindenberg
    3 January 2017 at 10:44 am - Reply

    I think America dodged an even deadlier bullet there, but y’know. You do you.