Trump and the Social Construction of Crime

Fresno Bee, February 23, 2020

Crime is a social construction. While this point has often been made by left-wing scholars, President Donald Trump has brought this idea to life.

The president has accused the criminal justice system of bias. He suggests that prosecutors and judges are engaged in a process that is arbitrary and subjective. The president denounces legal inquiries as witch hunts and hoaxes.

He also calls things he does not like criminal. When Nancy Pelosi ripped up his State of the Union speech, the president said that that was “actually very illegal.” It wasn’t. He routinely suggests that some people should be in jail, chanting “lock her up.”

At the same time, he lets others out. The president called the prosecution of his friend Roger Stone “ridiculous.” He has pardoned white collar criminals, tax evaders and supporters such as sheriff Joe Arpario. Last year, he pardoned a Navy Seal for war crimes.

But before Trump, the social construction of crime had already become obvious. Marijuana and homosexuality were decriminalized. Sentencing reform changed punishments. The death penalty fell out of favor (although Trump wants to bring it back). And sanctuary cities have refused to cooperate with federal immigration authorities.

Some claim a higher power defines crime and punishment. But there has always been a disconnect between moral law and criminal law. And those supposedly transcendent sources of moral law have been reinterpreted.

Jesus was among the re-interpreters. He refused to stone the woman taken in adultery. He offered a radical revision of the old “eye for an eye” punishment scheme, advocating that we turn the other cheek instead.

Not only do the punishments change; what counts as a crime also changes. For a very long time it was not a crime for a husband to rape his wife. It was not until the 1970s that marital rape was considered a crime. Nor was it a crime for a slave owner to rape a slave.

Speaking of slavery, the Bible permits it, as did the U.S. In the American slave system, it was legal to kill your slave. The colony of Virginia passed a law in 1705 acquitting slave owners who kill their slaves, “as if such incident had never happened.” If the law permits rape, slavery and murder, that makes you wonder about the moral basis of the law.

Now, we might protest, those were the bad old days. Our laws are better today. But are they? And how would we know?

Crime and punishment are malleable. They depend upon historical context, geography and jurisdiction. In some countries, blasphemy is illegal, along with homosexuality and abortion. At one point these things were also illegal in the United States. But some Americans argue that abortion is murder. They want to re-criminalize it.

Crime and punishment are defined by the law. But the laws are made by human beings. Over time, the laws change. We hire human beings to enforce these changing laws. Even within the criminal justice system there is room for discretion. And in the case of pardons, the executive power can overrule the justice system.

This may cause us to throw up our hands in confusion and despair. But it can also be empowering. The system of crime and punishment is entirely up to us. Society defines what counts as a crime. Society also determines how crime will be discovered, prosecuted, and punished. We, the people, have the power to determine all of this.

This means that we can get creative, if we want to. Some activists have called for prison abolition. Others are advocating for restorative justice and other alternatives to incarceration. What about using brain science and creative chemistry to deal with deviance?

It’s difficult to imagine what the future might look like. But the history of crime gives us a clue. We can predict that the future will be different. And the president’s attacks on the whole system of crime and punishment makes one wonder whether it’s time to put everything on the table and think it all through again. If crime is a social construction, then it is up to us to figure out how we want to define it and how we want to punish it.