Criminal Justice

Trump's Executive Orders on Crime are More of the Same, Just More Intense Rhetoric, Says Harvey Silverglate

Trump's orders are "draconian" but Obama gets too much credit for too little actual criminal justice reform, according to famed civil liberties attorney.


more of the same
Stan Wiechers/Flickr

"Any notion that the Trump administration is going to be a radical shift from past presidencies is erroneous. These executive orders indicate more of the same, and the same is disastrous," says Harvey Silverglate—the famed criminal defense and civil liberties attorney, author of the seminal book Three Felonies a Day: How the Feds Target the Innocent, and co-founder of the The Foundation for Individual Rights in Education (FIRE)—in a phone interview with Reason.

To be clear, Silverglate thinks the Trump administration has "no imagination" and that the harsh law and order rhetoric and wild exaggerations about the level of crime in the United States included in Trump's most recent executive orders are designed to "pamper" the law enforcement agencies tasked with enforcing the nation's laws. "I just had trouble understanding the Obama administration's claim to be a change agent, it really wasn't," Silverglate says. "You have to be—pardon me—smoking a lot of weed to believe that."

"The Obama administration promised change, and then it turned out to be more of the same, more prosecutions," Silverglate adds. "And then at the very end, to save his name from historical infamy he issued a lot of pardons and commutations, but that doesn't change the fundamental nature of his two terms as president. Very little imagination, run by the bureaucrats. The law enforcement bureaucracy is not going to go away quietly and there's nobody trying to push them away except for a few libertarians."

According to Silverglate, the intensity of the rhetoric in Trump's executive order is the most significant change to the federal approach to law enforcement. Trump's repeated assertions that we're in the midst of an unprecedented crime wave, despite data-based evidence to the contrary, is represented in the executive orders, but "we get more and more criminal laws every day, we get more prisoners every day. It's an industry, the law enforcement industry. And anyone who sees it as anything other than a cynical attempt to employ more law enforcement officers, incarcerate more people, and anything more than an opportunity for members of the government to grandstand on the law and order platform is misled."

States who have legalized recreational marijuana or medical marijuana should probably expect a Justice Department crackdown under President Trump, and Silverglate also thinks "the marijuana laws are a very important component of the full employment program for law enforcement officers that has been in place for quite a few administrations. Constantly, we need more and more law enforcement officers to enforce these insane laws that criminalize personal behavior."

Silverglate sees no hope for reform from the Trump administration, but thinks that a bipartisan goal for congress should be passing mens rea legislation.

"If the laws are going to become more draconian and prison sentences are going to go up and there's going to be more law enforcement officers arresting more people, the least we can make sure is that the people sent to prison knew what they were doing was illegal," Silverglate tells Reason.

"As a criminal defense lawyer, I'm willing to cut down my own business for the good of the public."

Watch Reason TV's "When Everything is a Crime: Harvey Silverglate on the Overregulation of Ordinary Life" below: