Justice in the balance as Trump faces Supreme Court picks

By Larry . . . Now that Donald Trump has been elected president, what does that mean in terms of ongoing efforts to reform the criminal justice system and the Supreme Court? Will a Trump appointment to the Supreme Court vote to overturn Smith v Doe?

The honest answer is that none of us know nor can the future be predicted with any degree of certainty, particularly in terms of how the Supreme Court may rule on a case that is not yet before them. Predicting the actions of a Trump presidency is extremely difficult because Trump’s campaign was very vague on many issues, and Donald Trump is the first person since Herbert Hoover was elected in 1928 who had not previously held elective office. Since Mr. Trump does not have a record to judge, we must wait and see his specific proposals.

Will a Trump presidency derail the positive steps that have occurred in recent years? Keep in mind that the president does not have control over the penalties that are imposed for state-court convictions, and some states are undertaking initiatives to reduce their costly prison populations. Nonetheless, on the campaign trail, Donald Trump declared himself the “law and order candidate” and said at the Republican convention, “The crime and violence that today afflicts our nation will soon come to an end. Beginning on January 20th, 2017, safety will be restored.”

During the presidential debates, Trump advocated for stop and frisk policies. Trump has been quoted as saying, “Criminals are often returned to society because of forgiving judges. This has to stop. We need to hold judges more accountable, and the best way to make that happen is to elect them. When they hurt us, we need to make sure we can vote them out of the job. The rest of us need to rethink prisons and punishment. The next time you hear someone saying there are too many people in prison, ask them how many thugs they’re willing to relocate to their neighborhood. The answer: None.”[1]

Based on such proclamations from Trump, the odds are that Trump is unlikely to propose actions that will: (1) reduce the rate of incarceration in the federal prison system; (2) assist those who have paid their debts to reintegrate back into society; or (3) reduce the excessively harsh sentences imposed as a result of the Federal Sentencing Guidelines.

There has been an unfilled vacancy on the Supreme Court since the death of Justice Antonio Scalia on February 13, 2016. Before I go further, I will state that the Senate’s refusal to consider the nomination which has been pending since March 16, 2016, is unprecedented in American history. Nonetheless, the question is whether or not a Trump appointee will overturn Smith v Doe. No one can predict that because predicting what a future yet-to-be-appointed justice will do is impossible. Smith was decided on a 6-3 vote, and three of the justices that decided the case are still serving along with Chief Justice Roberts, who represented the state of Alaska at the time and defended their decision to implement the law before the court.

We all recognize that the selection of Supreme Court justices is possibly the most scrutinized of all presidential actions because the appointee may choose to serve for life, and the ramifications on the country are enormous. Having said that, Trump has pledged to appoint strict constructionists who will not legislate from the bench and offered a list that consisted of conservatives in the Scalia mold; Scalia voted with the majority to uphold registration in 2003. One on the shortlist is Bill Pryor of Alabama, a pro-life federal judge currently serving on the Court of Appeals for the 11th Circuit. Pryor has publicly stated that he viewed Roe v. Wade as an “abomination.” Another on Trump’s most recent shortlist is Republican Senator Mike Lee of Utah as well as several state and federal judges, including a few women and minority candidates.

The Sixth Circuit’s favorable decision in the case of Does v Snyder from Michigan could end up before the Supreme Court. If the Supreme Court should uphold the Sixth Circuit, this would have enormous impact on how far states can go with constantly imposing new restrictions. Even though my own experience working in the legal profession is that the more conservative judges tend to be less sympathetic to the plight of those who have been convicted of crimes and tend to give law enforcement the benefit of a doubt, there is hope. Much has changed in terms of sex offender registration since Smith v Doe was decided back in 2003, which has made our arguments that it is punitive more compelling; this means that the high court could provide clarity and limit the reach of these so-called regulatory schemes.

[1] The America We Deserve, by Donald Trump, p.106-7 , Jul 2, 2000

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13 Thoughts to “Justice in the balance as Trump faces Supreme Court picks”

  1. I honestly don’t think we would have fared much better under Clinton in regards to our plight. After all, she made it a point to use the champion of the children angle and bring up human trafficking. That being said, I doubt Smith v Doe will ever get a reboot under a Roberts court. I could be wrong, and I want so bad to be wrong, but so far SCOTUS has given us little reason to think otherwise under Roberts.

    1. Avatardavid

      i agree…but i have a feeling Trump is just a vessel for the GOP. One would think a more moderate/liberal Supreme Court Justice would work in our favor. Like everyone says, who knows what could happen but it doesn’t feel good. It would be a mistake to just sit back and hope for the best. For all the Republican/Evangelical furor over unborn babies there is very little compassion for those of us who actually were born and live in this world.

    2. AvatarMaria

      I had to vote… It wasn’t easy. I am a long time Republicn and I love my country. I voted for Thrump and I believe with all my heart that I chose the right canidate. I am also a long time born again Christian and believe so very much in making choices with prayer. It never fails me, my faith has never failed me. As I opened this email I was suprised to see this article. But I do understand the concerns we are having. My plight has only been a year as my husband is a registrant and we have only been married a year. We have faith that this administration will have mercy on us through the grace of God…

  2. Ah Derek.. I believe I have an e-mail from you about two years ago and yes I to want you to be so wrong. Aside from that I even sent a “prediction” which I don’t usually do to my bank and retrieved it. While I hate to predict things, we all have to be patient as this new president just may surprise everybody in the best way.

    While I would suggest all advocates for this cause support our new incoming president, isn’t that what its all about people helping people. While their are ups and down’s in everything there is still being honest.

    Remember the sex offender is not a murderer. or does one have to say, who do one offend.? Now I don’t know if that sounds right or wrong but I hope someone is right or should we all play follow the yellow brick road and at my age I’ll be the scare crow anytime.

  3. AvatarRon

    Conservatives and left leanings are largely responsible for the draconian dump on RC’s. I can bet by a long shot that Trump depises the blunt bashing on men and the repugnant ring and overuse of “rape culture” and so forth, but he can’t go it alone, due to some politicians riding this talk as their trusty ticket for longevity and reelection. At least the pancake is flipped and the establishment is no longer normalized.

  4. Let us hope and pray that a clear thinking rational administration will recognize our plight and that in turn will favor our endeavors. It is up to all of us to show how we continue to be punished. When people gather for a just cause and continue to prove their case they eventually prevail. I do agree with the comment about Clinton and her children’s causes being a roadblock for us but no one can yet predict what may happen. We just may be pleasantly surprised!

  5. AvatarDave D

    Conservatives are constitutional, liberals think it is a living document that can bend to their whim we would be far better off with constitutional conservative judges. After all the Registry is unconstitutional Let us hope Trump thinks so as well.

    1. Avatarrwvnral

      It’s a reasonable analysis but it may fail to take into consideration that there is more than one conservative approach to constitutional exegesis. Likewise with liberal approaches. Conservatives who apply an “original intent” analysis are probably not going to be as friendly to us as “strict constructionists.” And liberals who are progressive are more likely to sympathize under a theory of “evolving standards of decency” analysis than will be liberals who are coming from the more pragmatic social engineering perspective. In sum, we can find friendly assessors on both sides. It just depends on their subset of conservative v. liberal judicial philosophies.

    2. AvatarJohn W

      I actually do take into consideration the differences in ideologies. I understand words are to be “defined”, and art is to be “interpreted”. Some will agree, some will not, and some go their own way. In fact, I don’t always see eye to eye with myself. I get that. And that’s actually a good thing. But, when the term “sex offender” or “pedophile” is used, the human brain goes into some sort of crazy, irrational, forget how to think mode.

      This is a basis for my analysis:
      I accessed google and typed, “Sex Offender laws signed by Clinton”. Then I did the same with Bush, them Obama. And because I live in Missouri, I did the same for Jay Nixon, Blunt, Waggoner, and McCaskill. Guess what? Presidents, Governors, Congressmen and women, Dems, Reps, Libs, Cons, no matter the flavor, age, gender, race, or religion, they have done whatever they could to take away my rights, to punish me and my family and/or anybody who speaks well of me, and to use people like me for political grandstanding. All the other stuff about what kind of liberals and conservatives they are becomes mumbo jumbo.

      In 2012, a couple of political science professors analyzed more than 900 state supreme court justices trying to determine their ideology based on various factors. Even though, they admitted their findings could not place definitive label, I, in my opinion could see that the majority of judges were liberal, but, so what. There are a lot of fine outstanding liberals as well as conservatives.

      I’m not going to “google” these judges by name for I think it would be futile, but I will take a guess at how many of them care of my plight. I come up with the number “zero”. Simply because an attorney who argues for the state will use the magic words of “sex offender” or “pedophile”. We already know from past experience what will happen to their brains.

      I know that my outlook is bleak. I hope I’m wrong. I’ve never wanted to be more wrong in my life.

    3. AvatarRajendra

      If those affected by these Unconstitutional laws want to see the registry abolished then there has to be more visible protests. General people need to see more clear picture about how absurd these laws are; otherwise, what the media is telling them is what they believe.
      Currently there is no strong voice even though these laws are draconian by most standards. Simply have a website or an annual conference will not make much difference when those for the Registry and even stricter laws are ever more active.

  6. AvatarJohn W

    I believe the ruling from SCOTUS was that Congress had the right to provide “safety” for citizens and that the laws were civil in nature and not punitive. BUT, since that ruling, the states and local governments have piled on thousands of ordinances, statutes, and some state constitutional amendments, that are meant to be add-on punishment.

    For an example, when a congressman refers to a Registered Sex Offender as, “vile scum of the earth” and that it is his duty as a legislature to make the cities like “burnt earth” to them, then a reasonable person can assume that vengeance and punishment is the goal.

    How do I know that? Because I am a reasonable person and also a registered person who committed a sex offense in 1981, plead guilty in a plea bargain in 1986, finished paying my debt to society in 1991, and then starting in 1996, without any violations on my part, but solely for the crimes that were committed by others or by what lawmakers thought or envisioned, without proof, the crimes that could possibly be committed solely by “registered” offenders, the punishment(s) re-started and have been increased, added on, extended, and compounded on a yearly basis.

    By the way, all of these things have taken place through Democratic, Republican, Liberal, and Conservative Local, State and Federal Administrations. I really don’t want to hear who’s on my side because I have proof that none of them are. I only hope that one day a reasonable SCOTUS will see our and our families plight and then act accordingly to their duty to uphold the US Constitution.

    1. FredFred

      Well said John. Thank you for putting it into perspective for us.

  7. Rwvnral I like that “original intent” comment. That is what the detective ask me during my original encounter. That is more like a ” picking the brain” process to me.

    Now I feel for all sex offenders that were caught up in all this to a greater or lesser degree it is basically “carnal knowledge” of a punishment or one could say a hate crime if one wants to go at it in that prospective.

    Trump brings a new vision and we well all just have to see. One can talk about intent in different ways and view’s. Who can really look into another person and know the actual intent?

    While I may bring up some biblical view’s as apposed to a lot comments on here I do not like a double standard judgment as these sex offences go in a justice system.

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