Kim Taylor-Thompson on Trump and the Constitution
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Kim Taylor-Thompson on Trump and the Constitution

August 25, 2019


So when Adam asked me to join the panel
to discuss the effect of a Trump presidency on criminal justice policy, I
have to admit that I hesitated, largely because his request actually forced me
to face the reality that this was not just a bad nightmare on 11/9, but
actually was a reality. So, even if I refused to watch the inauguration on
Friday it’s going to happen and even if I refuse to acknowledge Trump’s toxic
tweets, they will continue and even if I refuse to believe that someone so
divisive will actually be our president he will on Friday. So, that means that I
and the rest of us have to acknowledge the disturbing reality that President
Trump will be making decisions that will affect the lives of people whom he has
no interest in understanding, and so what I’m going to do is spend a little bit of
time since I spent a little time preparing, talking about some of the
things that I’ve learned as I’ve tried to pull together a coherent set of
policies perhaps from his tweets, campaign rhetoric, and cabinet choices.
The- the themes that emerge when you look at all of that are troubling to say the
least and suggest that we are likely to see a radically altered view of justice
in this country, or to be more precise we’re likely to experience a set of
regressive policies that harken back to the law and order regime of a Nixon
administration. And, those were the sorts of policies that led to the retributive
path of crime control and racialized policing strategies from which we have
yet to recover. So, as you likely know that vast majority of criminal
prosecutions take place at the state level not the federal level right? So,
about two hundred and eleven thousand people are locked up in federal prisons
compared with 1.3 million in state prisons, but federal federal prosecutions
could increase so that could be one thing that we see as a change, but more
troubling still the federal government has the power of the purse and the
pulpit and it can encourage an advanced retributive policy
that will affect the state. So, I’m going to talk a little bit about that as well,
and so what I’m going to try to do in my ten minutes is talk about the tone, the
pics and the effects of a trump presidency on the experience of justice,
and my- my comments will be less about constitutional issues and more about
policy implications, and I think I should state upfront that I’m not gonna say
much about immigration I’m gonna leave that to Adam who’s gonna spend his time
talking about that. So, first let me talk about the tone. Trump ran on a
law-and-order platform, because he likes to proclaim he believes that crime is
out of control, so his priorities at or at least as he
articulated them and his nominee for attorney general has articulated them
are to crack down on drugs and violent crime, and given those priorities Trump
has advocated a return to more aggressive anti-crime tactics. So, let’s
start with some of those the some of the policing tactics that he is advocating.
He’s recommended the widespread use of stop and frisk by law enforcement and
we’ll likely see incentives from the federal government to States in the form
of federal aid to States to encourage the implementation of the kinds of
policies that he would like to see spread, for example the office of Justice
programs has about two billion dollars that it uses to fund programs in the
states and that money tends to flow towards policies that the administration
as it is interested in spreading, but back to stop-and-frisk for a moment as
many of you know the stop-and-frisk policies that were used by the New York
public- New York police department and applauded by Trump were ultimately found
to be unconstitutional in their application by judge Scheindlin in Floyd
versus New York. She concluded that the stops that were taking place were not
based on reasonable suspicion, and were not being conducted in a race-neutral
way. What was happening was that blacks and Latinos were being stopped more than anyone else and we were getting what was could only be described as a
ridiculously low success rate, 4.4 million people were stopped, 52% of those were followed by a frisk, 1.5% of those produced a weapon, so that meant that 98.5 percent of the 2.5 million frisks discovered no weapon
whatsoever. So, despite Trump’s full-throated claims to the contrary,
this was not a program that worked well and he threatened that, or he at least
suggests that reducing the use of stop and frisk would lead to an increase in
crime and at least New York’s experience has been that the crime rate has
actually declined since it stopped using stop and frisk, which brings us to police
oversight. Trump is calling for less regulation of police and as you may know
the Obama Justice Department made great use of its power to investigate law
enforcement agencies engaged in a pattern or practice of violating civil
rights. DOJ actually initiated 23 investigations and began- and entered into eleven consent decrees mandating reform in Chicago, Baltimore, Cleveland and other cities. Attorney general or at least his nominee attorney general Sessions has
condemned such interventions as an abuse of federal authority. What we’re seeing
is that Sessions and Trump are actually looking at some of the violence that
that police are engaging in against citizens as the behavior of
quote-unquote rogue officers rather than a byproduct of a culture that too often
sees itself as an occupying force and communities of color, so in addition to
sort of being tone deaf to the incidents of police violence, we may see some reversal of some of the progress that’s been made in the Obama
administration really maintaining strict oversight of police activities. What
we’ve also seen in terms of the tone is that Trump’s rhetoric has played to
racial divisions by playing to a tried and true device that certainly propelled
much of the criminal justice policy making in the 80s and 90s, and that is
you look to stoke the fear of crime by suggesting that US cities, particularly
inner-city neighborhoods, are drowning in crime.
Trump uses inflammatory language calling communities of color
crime-infested as a way of setting the stage for draconian policies to
eradicate the infestation, and that kind of language will actually lead to I
suspect some really dangerous events, because it’s a dangerous and divisive
message that enables us to use fear to drive policy choices. But, we’ve also seen
him use those- that kind of language to push an agenda that is really free of
facts, because facts are not his weapon of choice, explosive language is. And so,
his fact-free rants often invite drastic responses and make draconian and tactics seem normal, so it perhaps should not come as a surprise that the National
Fraternal Order of Police wish- recently issued a wish list easy for me to say a
wish list for the first 100 days of the Trump presidency that calls for Trump to
reverse the bush-era ban on racial profiling and to reinstate it to enable
federal law enforcement to use it. He set a tone and people are beginning
to pick up on that challenge. If we look at his picks, quickly I think I have very
little time, if you look at his picks quickly- quickly, he has chosen Jeff
Sessions as the Attorney General, and it’s perhaps his clearest message
about his views on criminal justice. Sessions positions himself to the right
of even his fellow Republicans on issues of crime or as Time magazine suggests
he’s firmly planted on the fringe, and what we see is that session has opposed
efforts to reduce unnecessarily long federal prison sentences for nonviolent
crimes, despite a bipartisan- bipartisan effort to actually push that legislation.
He actually made it a personal crusade to block that sentencing reform bill. He is very focused on drugs, really believes that we
need to have essentially a war on drugs, and is concerned about the fact that we
have moved away from those kinds of punitive policies, he adheres to them.
When he was with- when he was in Alabama he and Alabama became the first state to
bring back the use of chain gangs in 1995, which was obviously a horrific
remnant of Jim Crow. He as Attorney General defended it as
perfectly proper, and the worry is that there’s nothing in his public life since
then that actually has convinced most of us that he is a different man than he
was back then, and in 1986 he was at the time being considered to become a federal district court judge and he was deemed too racially insensitive to be a federal district court judge, and yet he is the
nominee for attorney general. I think if we look at the effects finally and I’ll
rush this and be willing to open this up to questions, but I think that we’re
going to see a number of things happen. We thought that there might be an end to
the death penalty, the Supreme Court seemed to be hinting at that
but Trump supports a death penalty, Sessions supports it and- and Trump will
not likely nominate people to the court who will support his retributive policy, so the death penalty will likely continue. We may see a change in the
composition of the federal judiciary Sessions has expressed concerned about
appointing public defenders as federal judges because he worries about their
agenda, and Trump seems to be in accord with that. We’re likely to see an
increase in people of color in prisons currently no other country in the world
imprisons so many of its racial or ethnic minorities. We imprison a larger
percentage of our black population than South Africa did at the height of
apartheid, that’s likely to increase. So, not wanting to end on a low note
let me say that the agenda for activists I think is pretty clear, the fight has to
be in the courtrooms it has to be in the state legislatures and in the media
because I actually think the state- the center of gravity for reform will take
place locally rather than federally

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