Teri Kanefield+ Your Authors @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Feb. 01, 2019 3 min read + Your Authors


What’s wrong with “lock them all up" ?

I’m going to address a few of the misunderstandings and questions about the thread I posted yesterday.

Background on the issue:

Not everything that’s illegal is a crime.
Not everything that’s wrong is illegal.

1/ There can be consequences with jail time or criminal convictions.

It’s not possible (or desirable) to criminalize every bad action, or to order imprisonment for every transgression.

It's also not desirable or good for a society. More on that later.

2/ I think it's obvious that the following happened in 2016:

💠Russia interfered in our election
💠Trump and his campaign encouraged that interference.
💠Much of the GOP is on board with a US alliance with Russia.

3/ 💠Much of the GOP leadership are either closing their eyes or genuinely don’t believe that illegal things happened in 2016.

The question is: What is the solution?

No doubt there will be more indictments. We're not finished yet.

So, who else will be indicted?

4/ I don't know, and either does anyone else. We can all make guesses. We can say who we think "should" be indicted, but nobody knows.

One reason we don't know is because of prosecutorial discretion, which is one of the pillars of democracy.  https://definitions.uslegal.com/p/prosecutorial-discretion/ 

5/ Prosecutors have a lot of discretion in which crimes to charge. In autocracies, the autocrat decides. With lynchings, the mob decides.

In our system, prosecutors decide.

Back to tweet 1: Not every wrongdoing is a crime, and not every crime can (or should) be prosecuted.

6/ I can point you to scholarly papers on how prosecutors decide. It's a careful, measured decision.

I think the origins of “lock them all up” comes from deep anger and fury at the “lock her up” chant from the Trump GOP.

“Lock her up” was vile and repugnant on many levels.

7/I suspect that “lock them all up” started as a joke, and caught on as an expression of anger.

It's okay to be angry. But decisions on whether to prosecute shouldn't be made in anger.

I think "lock them all up" sank deep into the psyche of many who are (understandably) angry.

7/As more evidence of GOP complicity emerged, people believed they all will, or should, be locked up. Each time new evidence of wrongdoing emerged, the idea sank in deeper.

People even said things like “If everyone who enabled Trump doesn’t go to jail, the entire system failed."

8/ Putin is trying to undermine faith in our democracy and our entire system. That's a chief aim in Active Measures.

Here's a sobering thought. The statement:“If every person who enabled Trump doesn’t go to jail, the entire system failed,” could be uttered by a Russian bot.

9/ The sentence stirs up more anger. Americans turn against Americans!
It encourages Americans to denounce their own system.
It encourages Americans to lose faith in their own system.

Systems are not perfect. Criminal justice systems are not perfect.

10/ To demand perfection will kill Democracy because no system can survive that expectation.

*I left "out" out of a sentence an earlier tweet! Should have been:

There can be consequences WITHOUT jail time or criminal convictions.

(Nothing like dropping a negative!)

11/ There should be consequences for wrongdoing.

But it is misplaced to expect all of those consequences to come from the criminal justice system.

There are—and should be—on the extent to which we can (and should) rely on criminal justice to get us out of our mess.

12/ Hi, Exen. I am not underestimating. Have you seen my list? If you haven't, click here:  https://russia-investigation-summary.com/crimes/ 

But I recognize the dangers of expecting or demanding our current mess to be solved by, say, mass incarcerations.

13/ The goal and focus should be on saving our democracy and getting the truth before the American people.

I am counting on the criminal justice system to get the truth out.
Not everyone will be believe the truth. I suspect even some jurors will hold out.

14/ If you haven't read my thread on punishment, it's here:

Our main problem, as I see it, is that:
💠about 40% of voters support Trump and the Trump GOP, and
💠the GOP closes its eyes to lawbreaking.

This problem can't be solved by mass incarceration.

15/ I think the problem can be stemmed by careful and selective prosecution, partly because that will help expose the truth.

The truth isn't Donald Trump's friend.

Lest you think I'm naive about the extent and nature of the lawbreaking, see:

You can follow @Teri_Kanefield.


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