It’s not just Trump — crime and punishment are inherently political
Lady Justice should be blind. The U.S. legal system should not use its full weight and resources to target political enemies. But these ideals obscure a key fact about American justice:
Crime is political. It was designed to be. And it perhaps it should be.
The multiple criminal cases now being prosecuted against former President Donald Trump provide a good case study. One need not agree with Trump’s claims of political martyrdom, or with would-be House Speaker Jim Jordon’s threats to investigate local prosecutors, to understand the perverse incentives of a politicized criminal legal system. Reeling in a big fish can reward even progressive prosecutors with reelection, career advancement and the lure of higher office.
Politicizing crime, and using it to target opponents, is a longstanding American tradition. Historians like Khalil Gibran Muhammad catalogue how, for hundreds of years, criminal charges were used to subjugate whole communities and solidify white political power. In 1971, Richard Nixon declared a “War on Drugs” that Ronald Reagan later expanded — and that Nixon’s aides later admitted was intended to target groups that voted against him, namely Blacks and anti-war “hippies.” In the 1990s, Bill Clinton worked with Congress to prove that mass incarceration remained a bipartisan effort.
Such policies trickle down to state and local officials. We the People are partly to blame. We vote in the presidents, governors and legislators who set criminal policy and write our criminal laws, as well as the local mayors and prosecutors who work with police to enforce them. What does this get us? Politics, politics, politics. And politicians skillfully stoke the public’s fear of crime to boost their candidacy, which maintains the status quo of mass incarceration and failed tough-on-crime policies.
Even our definitions of crime have deeply political roots. Murder and theft are the easy cases; we inherently understand that they are morally wrong and should be punished. But things quickly get complicated. Is it murder if a person stands their ground and shoots somebody that the person reasonably believes threatened their safety? Self-defense laws have been politicized. Is it theft if rioters loot a local store in protest of a police killing of an unarmed person? Politicized.
These decisions are social in nature because they determine how we order our society. They are political in nature because we empower, legitimize and incentivize political actors to set priorities in how they enforce criminal policy. One study estimated that as many as 70 percent of Americans have committed a crime sometime in their lives that could carry jail time. Criminal laws are so broad that most of us could potentially fall beneath their unforgiving weight. Yet most of us are lucky enough not to be “targeted” by the criminal political agendas of the powerful.
So, criminal policy is political and always has been. How worried should we be?
There are good arguments that crime should be political. How else are we to hold our elected officials responsible for policy missteps? Indeed, most Americans expect elected political
representatives to create and enforce criminal policy. We also should understand the safeguards that protect against abuse.
For one, criminal law requires cooperation between all three branches of government. The judiciary must issue a warrant before police or other executive actors can search a person’s home, and they also work at the backend to ensure safeguards when sentencing convicted persons. Legislators write criminal statutes at varying degrees of narrowness to ensure executive actors do not unnecessarily overstep. The police and prosecutors interact with these laws and judicial oversight when arresting and bringing cases against individuals. Each branch, in theory, was designed to check the others to protect against rampant abuse.
Our federalist system also was designed to include safeguards. State governments are in a position to protect against federal abuses of power, and have even sued to challenge federal drug crimes. The federal government, meanwhile, can provide oversight through habeus petitions, consent decrees and other legal tools that ensure state governments do not trample the rights of defendants. And at the bottom of this hierarchy, we as voters form the foundation of power to use our votes to hold these institutions accountable.
But today, as both the left and a newly awakened right are coming to realize, such safeguards often prove ineffective when the political system is captured by opportunists and perverse incentives. If the left could admit that the prosecutions of Donald Trump do in fact represent political judgements, shouldn’t the right face its own role in targeting communities through mass incarceration?
If we want a better, fairer, more equal criminal justice system — one that does not treat people differently based on political affiliation — we need to collectively reflect how criminal policy has been used as a bipartisan tool to serve political agendas, and we need the strength to change our politics.
Politics is the problem. But it is also the solution.
Sheldon Evans (@prawfsevans777) is professor of law at Washington University in St. Louis, focusing on the intersections of criminal sentencing, punishment theory and immigration policies.