This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters.
As the full picture of the results of the 2024 election begins to come into focus, we’re bringing you some key criminal justice takeaways around President-elect Donald Trump’s criminal cases, proposed immigration policies, justice reform and those ubiquitous and misleading television ads about transgender people in prisons.
Trump’s criminal cases are unlikely to proceed.
Trump’s victory “virtually guarantees that he will never face serious legal accountability” in any of the four separate criminal cases he’s been indicted for, Politico reports.
On Friday morning, special prosecutor Jack Smith requested a pause in the two federal cases against Trump over his alleged retention of classified documents and his role in the Jan. 6, 2021 insurrection. It is long-standing Justice Department policy that a sitting president can’t be prosecuted, and the cases cannot be concluded before Trump takes office. Trump has said he would fire Smith immediately upon taking office, but Smith is expected to step down before inauguration day. Smith could choose to publish his findings before he goes, and it remains to be seen whether Trump will try to exact legal consequences on Smith for leading the prosecution. Trump has previously said that Smith should “go to prison” and “be thrown out of the country.”
In New York, where Trump was found guilty on multiple counts of falsifying business records earlier this year, experts predict that Justice Juan Merchan will likely not sentence Trump on Nov. 26, as currently scheduled. Even if he receives a sentence, it will be suspended until after he leaves office, and it remains possible that the courts will toss out his conviction on the grounds of presidential immunity.
A similar outcome is also likely in Georgia, where Trump and a number of his allies face charges related to alleged efforts to overturn the state’s 2020 election results. The long-stalled case is expected to be postponed until he leaves office or thrown out on the same grounds.
However, experts say several pending civil cases against Trump may theoretically continue while he is in office, pointing to a 1997 Supreme Court decision that allowed a civil suit against then-President Bill Clinton.
People convicted of crimes related to the Jan. 6 insurrection are also expecting their legal woes to go away under Trump, and are “lining up” for presidential pardons. In one case this week where a defendant sought to have his sentencing delayed upon news of Trump’s election, however, the request was quickly rebuffed by the judge.
Backlash against criminal justice reform was apparent, but not the whole story either.
California voters approved Proposition 36, which stiffens criminal penalties for some property and drug crimes in the state. The measure passed on the strength of persistent fear and frustration around crime and disorder, especially viral incidences of retail theft and more visible unhoused populations and open-air drug use — even as actual crime rates continue to fall. The effort is largely aimed at rolling back reforms that voters approved a decade ago, which were intended to reduce the state’s prison population.
An analysis by the state’s nonpartisan fiscal advisor found that the change will probably lead to “a few thousand” more people in prison and costs in the “low hundreds of millions” of dollars annually.
Cristine Soto DeBerry, the executive director of Prosecutors Alliance Action, a progressive reform group, said in a statement that the passage was disappointing, but said it wasn’t proof that Californians had soured on reform. “In fact, it shows that Californians favor policies prioritizing treatment and rehabilitation,” DeBarry said, pointing at an aspect of the law that requires people with multiple drug charges to complete treatment or serve time.
DeBerry continued: “Unfortunately, Prop 36 will fail to deliver the support it promised,” a conclusion echoed by the Los Angeles Times editorial board this week.
In the state’s largest city, Los Angeles prosecutor George Gascón lost to Republican challenger Nathan Hochman, who pledged to undo his predecessor’s “social experiment” in progressive prosecutorial practices. Hochman ran well to Gascón’s right but also pledged to keep some of the reforms introduced by the office, including the maintenance of a conviction integrity unit to look at overturning old, flawed convictions.
It wasn’t all bad news for the criminal justice reform advocates. Reformist prosecutors also won races against opponents promising more punitive approaches in places like Lake County, Illinois; Oakland County, Michigan; and Albany County, New York. And in Florida, Monique Worrell won her job back after Gov. Ron DeSantis booted her from office last year, claiming that she had failed to perform her duty by electing not to prosecute some cases.
Reform-minded prosecutors who remain may face new political forces aligned against them moving forward. The Houston Chronicle reports that after financially backing Trump’s campaign, billionaire Elon Musk is now setting his sights on prosecutors. Trump, too, has promised to crack down on what he calls “radical Marxist prosecutors” in a second term.
Trump’s allies say planning has already begun for a promised immigration crackdown. Meanwhile, migrants share mixed feelings about his win.
Trump’s team is planning to move quickly on promises to increase border enforcement and begin the mass deportation of undocumented immigrants. Senior advisors told CNN they plan to start by reinstating border policies from Trump’s first term, beginning with the deportation of immigrants who have committed crimes. They are also considering how and whether to pursue the deportation of people brought to the U.S. as young children, commonly known as Dreamers. Trump’s advisors expressed confidence that Americans would be willing to tolerate more extreme policies at the border than they were during Trump’s first presidency, based on souring public attitudes on immigration. Meanwhile, immigration advocates are girding themselves for a likely avalanche of legal challenges to Trump administration policy.
Immigration detention is primarily run by private companies, and the nation’s two largest, CoreCivic and GeoGroup, have both seen their stock prices soar since Election Day.
Some migrants in New York City expressed terror in response to Trump’s election and the increased likelihood of being deported to dangerous conditions in their home countries. Many members of the Haitian community in Springfield, Ohio, about whom Trump spread false rumors, are contemplating their fate now as well.
Meanwhile, The Atlanta Journal-Constitution spoke to several Latino migrants without permanent legal status who were delighted by Trump’s win. Some said that they didn’t take Trump’s deportation threats literally, thought Kamala Harris was too left-wing, or believed Trump would be good for the economy. Some New York immigrants who’ve been in the U.S. for longer, and who are eligible to vote, shared similar sentiments with DocumentedNY.
NBC News reported this week that the Biden administration is preparing for the possibility of increased border arrivals by migrants trying to cross before Trump takes office in January. Others may already be giving up. According to Reuters, a group of about 3,000 migrants traveling through Mexico toward the U.S. border has decreased by about half since the results of the election were announced.
The Trump campaign made a big investment in ads attacking Kamala Harris over her position on gender-affirming care for transgender people in prisons and immigration detention.
In the months leading up to the election, TV viewers across the country, especially football fans, saw hundreds of ads claiming, “Kamala supports taxpayer-funded sex changes for prisoners.” One ad featured a clip of Harris herself telling an interviewer, “every transgender inmate in the prison system would have access.”
Some right-wing commentators are now arguing that this one ad “may have moved the needle toward Trump.” A Trump adviser told The Washington Post that “the trans issues, and the men in girls sports, that whole topic is the most animating topic at Trump rallies, but I was a little surprised that carried over to Democrats and everybody, including Black men.”
As with most political advertising, the reality is more nuanced than the ad claims. Prisons are required by law to provide medical care to incarcerated people. The Supreme Court has said prison officials can’t show “deliberate indifference” to a substantial risk of serious harm — and lower courts have found again and again that failing to adequately treat gender dysphoria does exactly that. That said, transgender people make up a tiny fraction of those held in federal prisons — the only prisons that the president has authority over — about 1%, according to Bureau of Prisons data. Among those, the number who want gender-affirming surgery is even smaller. The federal prison system has only ever provided such surgery twice — both under the Biden-Harris administration, only after a judge ordered officials to do so. Other gender-affirming care, like hormone therapy, constitutes about one-tenth of 1% of the prison system’s healthcare budget, according to bureau numbers — and was also provided to federal prisoners under the first Trump administration.
The irony is that Harris made the statement that the Trump ad framed as outrageous — that under her presidency, “every transgender inmate in the prison system would have access” — as a sort of apology to the trans community after she argued against providing gender-affirming surgery to people incarcerated in California during her time as attorney general.
This post was originally published on this site be sure to check out more of their content.
