President-elect Donald Trump seems to know precious little about criminal justice.
His Nixonian campaign mantra of “law and order” demonstrates no empathy for those ensnared in the criminal justice system. Trump is not the first presidential candidate who, while running, assured his followers he would address the nation’s perceived lackluster enforcement of criminal law.
{mosads}Following decades of “tough on crime” philosophy, our country incarcerates more people per capita than any nation on earth. The impact of mass incarceration has been costly in terms of public dollars spent and devastating on minority communities in particular.
There appears to be a bipartisan consensus that this philosophy has not yielded sound public policy. That Trump has been elected with a campaign slogan that flies in the face of this consensus is cause for great concern, maybe even alarm.
Trump has nominated Sen. Jeff Sessions (R-Ala.) to be his Attorney General. Sessions has been one of the sharpest critics of President Obama’s immigration policies and has in the past made comments that were, at best, highly insensitive to minorities and to civil rights. He may well play to Trump’s worst instincts in how to prosecute crime.
As a private citizen, Trump ran ads demanding reinstatement of the death penalty for the Central Park Five and as a presidential candidate, he announced they were still guilty even after another man admitted, and DNA evidence corroborated, he alone committed the crime.
While campaigning, candidate Trump said he would broaden laws to allow torture, that waterboarding is “fine” and that we should “go much further” (although now he appears to claim the U.S. will comply with law and treaty).
He proposed mass roundups of “illegals” that make up 11 million people, three million of whom would be immediately deported or imprisoned. He promised to make greater use of Guantanamo Bay, saying he will “load it up” with “bad dudes.”
He proposed that Stop and Frisk—roundly viewed as unduly focused on minority communities, unconstitutional and ineffective—be instituted nationwide.
As president, Trump will have the ability to appoint federal judges. At the Supreme Court level, particularly if he adheres to those placed on his long list while campaigning, it seems a foregone conclusion the high court will move to the right on criminal justice.
Not the political right of the Koch brothers, Sen. Rand Paul (R-Ky.) or numerous other conservatives who have recognized that our criminal justice system is broken and needs reform. Rather, the political right that believes in “tough on crime” on steroids.
Supreme Court decisions matter greatly, but how the laws are enforced relies in some ways more importantly on the day-to-day judging that occurs in trial courtrooms all over the country. The judge sitting at the trial level may be one person best equipped to ensure the equal enforcement of the law.
Will Trump look to follow the historic model of non-ideological appointments to the federal trial bench? Or will he seek to stock the judiciary, even at the trial level, with ideologues whose view of criminal justice consists only of a one way ratchet? Will his choices give prosecutors more discretion to charge an ever greater number of citizens under an expanding array of criminal laws and seek increasingly draconian sentences?
Fortunately, we believe that even if Trump attempts to take the latter route, one cannot be so sure a conservative-leaning judge will ultimately be antithetical to the justice an underdog or underrepresented individual deserves.
The very conservative Justice Antonin Scalia, appointed by Ronald Reagan, joined in an opinion, albeit with a partial dissent, in 2005 which struck down the mandatory nature of the draconian federal Sentencing Guidelines. He championed the ability of a criminal defendant to confront his accuser through cross-examination.
It was Chief Justice William Rehnquist, appointed by Richard Nixon, who delivered the Supreme Court’s opinion striking down a statute that purported to overrule the Miranda decision. He understood the necessity to adhere to principles of law and precedent.
Justices Scalia and Rehnquist, hardly progressive and surely not shrinking violets, fully recognized, particularly in these instances, the role of the courts as uniquely different from the role of politicians, even the ones who appointed them.
There is even more reason for optimism with respect to trial level courts. The way in which these trial level judges have historically administered justice has not typically changed from administration to administration.
Judges take a sworn oath. They administer justice, “do equal right to the poor and the rich.” They impartially apply the Constitution and the laws of the United States.
Hopefully Trump’s appointees, like those of his predecessors, will understand that their role is not to fulfill facile campaign slogans, but to be thoughtful jurists who apply the law faithfully to the Constitution, in a manner that fully protects the rights of an accused and actually serves justice. The blindfolded lady carrying those balanced scales requires they do so.
We know that lawyers who practice in the arena of criminal justice will not leave it to chance. Criminal defense lawyers will vigilantly continue to demand for their clients the protections afforded by the Constitution. They will fight to ensure their clients are not demonized, but rather seen and judged as human beings worthy of compassion.
Most judges will step up to the plate and serve justice, not campaign promises. Indeed, that is exactly the role our Founding Fathers envisioned for the judiciary—a check and balance against any political efforts to dilute human and civil rights.
If lawyers and judges continue to do their jobs, there will be no fundamental change in how criminal justice is enforced after Jan. 20, when Trump takes his oath to uphold the Constitution.
Barry Pollack is a partner at Miller & Chevalier in Washington, where he chairs the firm’s white collar and internal investigations practice group. Joel Cohen is of counsel at Stroock in New York City and the author of Blindfolds Off: Judges on How They Decide.
The views of Contributors are their own and are not the views of The Hill.