The possibility of a Trump presidency is a frightening concept on many levels. One level important to me is what would Donald Trump as President mean to the criminal justice system and defendants charged with crimes? Equally as frightening. On the surface, Trump never misses an opportunity to boast proudly that if elected, he will be the “law and order” President. Never at a loss to speak in the broadest way possible, this announcement is no exception. But what exactly does the “law and order” President mean? Offering no detail to explain what his version of “law and order” means we are left only to speculate what criminal justice laws and policies the “law and order” president would put forth. But we are not at a total loss to predict.
If Trump’s mean and prejudicial remarks are any indication, Trump will not be a friend to criminal defendants or criminal justice reform. He, no doubt, would advocate for harsh prison sentences, continued mandatory minimum sentences, harsher penalties for those who enter the country illegally, and limited alternatives to incarceration. A real set back to the Obama administration’s attempt deal with prison overcrowding, clemency programs, and less severe penalties for non-violent offenders.
Indeed, there is clear evidence that Trump will argue that the death penalty should be a viable sentencing option as well. One needs to look no further than his full-page advertisement he purchased after the “Central Park Five” were arrested and charged with the rape and attempted murder of a jogger in Central Park. In the ad, Trump cried out for New York to reinstate the death penalty so that it could be imposed for these defendants. In true Trump fashion, he said, “muggers and murderers should be forced to suffer, when they kill, they should be executed for their crimes.” Of course, we know the rest. Those five defendants were subsequently exonerated ― because another defendant confessed to the crime ― and had their sentences vacated. In spite of this monumental development, Trump was unconvinced. Instead of accepting what a Judge and the Manhattan DA’s office confirmed, Trump maintained his “belief” of their guilt and expressed his disdain for the way the judicial process played out. This is the way Trump reacted to innocent defendants. What could be in store for guilty ones?
His utter disregard for the judicial process also reared its head when he expressed his disappointment that a federal judge in New York ordered the NYPD to terminate its “stop and frisk” policy. That policy, instituted by the NYPD, permitted police officers to routinely stop and frisk pedestrians and search them for weapons and contraband. The policy, however, had a disproportionate effect on the African-American and Latino populations in the poorer areas of New York City. As a result, the policy led to deep-rooted distrust among the citizens of these communities and the police department. In fact, some studies some concluded that the “stop and frisk” policy had little effect on crime. Following a 2 ½ month trial, in a 195-page opinion, a federal judge ruled that this stop and frisk policy was unconstitutional. No appeal was filed by New York City.
Not good enough for Trump. Trump was not deterred from assailing the decision and advocating that the NYPD continue in its practice. Like many of the other positions he has taken: in the face of irrefutable fact, instead of cutting his losses, he presses his bet. In fact, in a recent debate, Trump questioned whether or not the “stop and frisk” policy was ruled unconstitutional at all. Think about that. Even though a court had decided the case, and no appeal on the decision was taken, Trump denied the existence of the Court’s ruling. Is there any doubt that a Trump presidency will do what it can to facilitate these types of policies among NYPD and other police forces?
There’s more. Let’s not forget that during his very first speech as a presidential candidate, Trump accused most of the illegal Mexican immigrant populations of being rapists and bringing “crime” and “drugs” into the country. Most? Putting aside for a moment the lack of evidence he had to support this claim, his statements do not bode well for a President respecting the fundamental notion of the Judiciary Branch of government, which is: a criminal defendant is presumed innocent and that racial and ethnic profiling are unconstitutional.
And what about the Supreme Court? Who will Trump nominate for Congress to confirm? Some think this decision more than any other, is what is most frightening about a Trump presidency. But here, there is a bit more certainty – sprinkled with some irony. Trump has made clear his love affair with the late Supreme Court Justice Antonin Scalia. A judge in the mold of Scalia is Trump’s go-to answer when asked what type of judge he would nominate. Here, I must confess, I have deep desire during those moments to be a debate moderator so that I could ask Trump to kindly summarize Scalia’s philosophy of jurisprudence and to name three of his decisions and why they are important to the American rule of law. But assuming I do not get that chance, someone should tell Trump that Justice Scalia often decided cases that were favorable to criminal defendants. What Trump fails to understand is that Scalia often valued rights of the accused in the course of his quest to strictly construe the language of the Constitution and Bill of Rights.
I hate to break it to Trump, but has he read Crawford v. Washington? In Crawford, Scalia “revived” the 6th Amendment rights of accused so that a criminal defendant can now confront the in-court testimony of their accuser enabling them the opportunity to cross examine their reliability. How about Sykes v. United States? In Sykes, Scalia criticized the idea that at sentencing, a Judge could enhance a criminal defendant’s sentence without a jury finding the facts supporting the enhancement beyond a reasonable a doubt. In Sykes, Scalia said the Due Process Clause prohibits the government from “taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” That doesn’t sound very Trump-like. Trump may also be surprised to learn that Scalia voted in the majority in Texas v. Johnson, which stood for the idea that “flag burning” was constitutionally protected speech. Wait, flag burning? The law and order president? Needless to say, I would not recommend you test this case at any one of his rallies.
So what would the criminal justice system look like under a Trump presidency? Does Trump himself even know? Probably just as ugly and mean spirited as his campaign has been. No doubt our government’s checks and balances would be working overtime and criminal defense attorneys like myself would have no shortage of cases. But criminal defendants would unduly suffer and our constitution would be tested often. Trump could set back some real progress that has been made. So what would the criminal justice system look like under a Trump presidency? I don’t want to find out. One thing is certain, though, Scalia would think he’s a dangerous clown.
If you would like to email me, please do at steven.brill@sullivanbrill.com. Also, check out my websites at sbcriminallawyers.com and sullivanbrillfirm.com. Like us on facebook, find us at https://www.facebook.com/sullivanbrill/