Sounding Strong is Making Us Weak: A Guide to President Trump’s MS-13 Rhetoric

“Big progress being made in ridding our country of MS-13 gang members and gang members in general. MAKE AMERICA SAFE AGAIN!”– President

Trump via Twitter.

From Tweets, to the State of the Union, and even a televised MS-13 roundtable conducted with party leaders, President Trump has engaged his political platform to campaign against purported MS-13 members. In this new era of the media, the President of the United States can communicate the intersection between his political and criminal agenda in a single Tweet. At first glance, this tough on crime stance appears unremarkable. Dating back to Michael Dukakis, political candidates have been obliterated for being soft on crime. Presidents from both sides of the political aisle have adopted these tough on crime approaches, campaigning for and ultimately signing into law legislation requiring mandatory minimums, establishing three strike laws, and expanding anti-drug policies.

In the pre-Trump era, a constant tension existed between tough on crime attitudes and an attempt to be politically responsible with one’s language. However, President Trump has abandoned that balance. Instead, President Trump has utilized his international stage to take an unwavering stance on harshly punishing, and ultimately deporting, purported MS-13 members. While supporters appreciate his proclamations that this administration has eradicated thousands of MS-13 members, and opponents believe his rhetoric is strictly hyperbole, the conspicuous question is whether this rhetoric is actually making the country any safer.

President Trump has claimed, via Twitter, that arrests of MS-13 members and associates are up 83% and that his administration is deporting MS-13 members by the thousands. However, fact checks from both USA Today and The Washington Post cast some doubt that these numbers are even possible. If his stance is indeed not having the intended impact of eradicating MS-13 gang members, what unintended consequences has his stance caused?

Promoting falsehoods regarding the administration’s criminal performances has impacted the criminal justice system procedurally. We can all agree that we want our country safe from violent gangs. But hopefully, we can all agree that the notions of a fair trial and impartial jury, as proscribed by the Constitution, apply to criminal defendants equally. The criminal system in the United States adheres to the highest burden of proof, beyond a reasonable doubt, because defendants can be stripped of the most fundamental right to freedom. Meaning, criminal convictions by public opinions, or presidential opinions, are forbidden. While the first question regarding the accuracy of President Trump’s rhetoric has been seemingly resolved by fact checkers, there is a second, more inconspicuous, question to be asked: In this current political climate, lead by President Trump’s rhetoric, can purported MS-13 members get a fair shake at justice in the American criminal system?

The criminal justice system is most susceptible to President Trump’s influence during jury selection and voir dire. For those unfamiliar with the jury selection process, voir dire is a fancy term for a preliminary examination of potential jurors in which they are asked a series of questions and are required to tell the truth. The underlying purpose is to weed out potential jurors either with unfounded biases regarding either the defendant or the charges in each case, or those jurors that admitted that they cannot be fair and impartial. While a brief synopsis of the voir dire process makes it seem straightforward, this process is complicated by exposure to facts of consequence in a given case, particularly by the media. When the President, quite possibly the most influential person in the United States and arguably internationally, proffers to the public that MS-13 members are to be imprisoned, eradicated, and deported, seeds of bias may be planted. Further, particularly for those who have adopted President Trump’s political views, his stream of influence is perpetuated by the notion of “selective consumption” in the media. Given the mass amounts of media outlets available, some reputable and some 'fake,' we as citizens are forced to consume only a microscopic portion of the news available to us. And, we naturally seek and consume media that comports with our preexisting views and dispositions.

In theory, being tough on crime simplifies the system with the adoption of aggressive policing and harsh punishment to follow. However, in practice, President Trump has exacerbated the issue of selecting impartial juries, which, in turn, has complicated the process of bringing MS-13 members to trial. Given the heightened media attention and public scrutiny, the voir dire process has evolved to include, in some circumstances: attorney conducted voir dire rather than judge conducted voir dire, pages worth of juror questionnaires, as well as the use of additional peremptory challenges. And, these are just some of the pre-trial obstacles that attorneys must overcome if they want to successfully prosecute MS-13 members.

While in trial, the fear of facing criminal penalties and ultimately deportation transcends across witnesses as well. In a purported MS-13 gang case, the vast majority of witnesses with any relevant information regarding the gang’s activity, hierarchal assembly, and internal motives, are likely to come exclusively from those with connections to the gang. Given President Trump’s appetite to punish MS-13 members and associates, witnesses disappear, prosecutions fall apart, and this tough on crime stance is devastated. This brings us back to the initial question: Are President Trump’s rhetoric and representations in the media actually making the country any safer? This piece is of the opinion that it is, in fact, having the reverse effect.