The Many Faces of Backlash

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Posted in: Criminal Law

In my last column, I wrote about the politics of quiescence and backlash. After a presidential election, those who backed the winner tend to get on with their lives. They cannot maintain the focused intensity of the campaign. As their champion turns from frenetic campaigning to workaday governing, they return to the cares and concerns that filled their days before the election sucked all the oxygen out of the room.

On the other hand, many who backed the loser feel a desperate sense of alarm; all that they feared has suddenly taken an ominous step toward reality. Though they too must return to their daily lives, they do so with an acute sensitivity to pleas for support from the organizations dedicated to the values, policies, and institutions they hold dear. These groups leverage that support to increase their capacity, fund their programs, and broaden their message.

To make all this a bit more concrete, consider this: In the first five days after the election, the ACLU raised $7.2 million from 120,000 donors—an amount described by the Huffington Post as “the biggest fundraising haul in the history of the civil liberties group.” Some become quiescent, others engaged.

In this column, I want to reflect on how the politics of quiescence and backlash might manifest itself in two contentious domains: criminal justice and national security.

Apart from Mexicans, no group bore the brunt of Trump’s racist and xenophobic campaign more than Muslims. He has variously called to ban Muslims from entering the country, to track Muslims inside the country, to surveil mosques, and to close some mosques down. He later called for “extreme vetting” of Muslims, which was meant to be less draconian than his original rhetoric, but the implication is clear: Muslims will be targeted for special scrutiny and enforcement by law enforcement. And of course, he vowed last February to bring back “a helluva lot worse than waterboarding.”

Trump’s positions on criminal justice were never as prominent in the campaign as his many attacks on Muslims. He supported “stop and frisk,” cooed sympathetically about the privatization of prisons, and in his plan for the first 100 days of his administration, promised to enact mandatory minimum prison sentences for undocumented aliens caught entering the country illegally. He has also pledged to create a “Task Force on Violent Crime” and “increase[] resources for federal law enforcement agencies and federal prosecutors to dismantle criminal gangs and put violent offenders behind bars.” In short, when it comes to criminal justice, he is obviously not an original thinker.

It is anyone’s call whether Trump actually plans to do any of these things. But if he does—in fact, if he even begins to act on this diverse agenda—I suspect we will see two very different reactions. In the attack on Muslims, I anticipate the backlash will be swift and strong, but in the return to the failed criminal justice policies of the 80s and 90s, I suspect the reaction will be much more muted. The difference has very little to do with the policies themselves; in both domains, the proposed policies are stupid and uncalled for. But they have a very different political resonance, and that will account for a great deal.

In national security, the buck stops with the president. At least since the Truman Administration, the president has taken the lion’s share of responsibility for national security. Congress periodically gripes about the executive’s outsize role but has shown very little inclination over the last 60 years to take back the reins. Likewise, though the Supreme Court will occasionally slap the president’s wrist, it has never imposed genuine restraints on the president’s power as Commander in Chief. And if Congress and the courts are deferential, the States are absent altogether. National security is overwhelmingly a federal affair, and within the federal government, the president has by far the most prominent role.

This of course is a two-edged sword, as the second President Bush discovered. The post-war distribution of power over national security gives the president a great deal of latitude, but also makes him exclusively responsible for all that goes awry. Especially in the first two years, when Trump has the advantage of a Republican Congress, dissenters will focus their wrath on him alone and he alone will be made to feel the (political) pain. As with any laser, the heat intensifies as the beam concentrates.

Compounding this, people will quickly realize the staggering over-breadth of Trump’s anti-Muslim policies. Since 9/11, the incidence of lethal violence in this country attributable to Islamic fundamentalists is vanishingly small, an infinitesimal fraction of the lethal violence that takes place across the country every day. In fact, according to Charles Kurzman, a professor of sociology at UNC Chapel Hill and the leading researcher on the (absence of) Islamic terror in the United States, the likelihood that one might be killed by a Muslim in this country is actually lower than the likelihood that one might be killed for being Muslim.

Inevitably, therefore, Trump’s attacks on Muslims will burden entirely innocent behavior and ruin the lives of entirely innocent people—people whose only sin is to practice the wrong religion. That cuts deeply against the dominant narrative of national identity, with its abiding faith in and attachment to religious liberty. Trump’s policies, therefore, will be easily constructed as un-American, which is the first and most important step in the construction of a successful political backlash.

Thus, in national security, three conditions combine to make the politics of backlash particularly potent: Trump cannot share the blame, his attacks will be stunningly over-broad, and his policies are easily constructed as un-American. Unfortunately, however, the situation in criminal justice is very different on all three counts.

To begin with, and unlike in national security, criminal justice is fundamentally a local affair. According to the Bureau of Justice Statistics, there are more than 12,000 local police departments and over 2,300 prosecutor offices in the United States. Within broad limits, each of these organizations establishes its own priorities and sets its own policies. If a local municipality wants to prioritize treatment over incarceration for opioid addicts, it can. Though the federal government has the undeniable power to influence local policy through the power of the purse, it cannot insist that police or prosecutors use any particular approach. It cannot, for instance, order every local police department in the country to adopt stop and frisk, nor can it demand that every local prosecutor send drug addicts to prison. While this diffusion of responsibility allows the States to perform their function as the laboratories of democracy, it also makes it impossible to focus blame on a particular actor, which is the lifeblood of political backlash.

In addition, and even more importantly, there is no comparable argument that aggressive law enforcement strategies are grossly over-broad or un-American. It’s not that these strategies are narrowly tailored. In fact, they are far too broad. Instead, the problem is that, at least when it comes to criminal justice, overbreadth is American. As I have written many times before, saturation policing techniques like Zero Tolerance and Broken Windows are deliberately overbroad. They purposely focus on low-level offenses and offenders, which is a major reason that roughly one in three adults have been arrested by age 23. The FBI calculates that law enforcement in the United States has made more than a quarterbillion arrests in the past twenty years alone. By the start of President Obama’s second term, an estimated 70 million adults had a criminal record; the number is no doubt higher now. And so long as these techniques are concentrated within communities of color, most whites don’t seem to care—at least, they do not support meaningful restraints on the police.

This means that while a revitalization of the failed enforcement strategies of the 80s and 90s will, once again, sweep much too broadly, that overbreadth will not have the same political resonance as Trump’s national security policies. To put it simply, “get tough” rhetoric will not seem un-American. And once again, it is the poor and especially poor people of color who will bear the brunt of it.

The politics of backlash and quiescence is bi-partisan. It hit President Obama and President Bush, just as it will hit President Trump. But not all policies produce the same reaction. Trump’s policies in criminal justice and national security might well be equally disastrous. But he will not pay equally for his folly.