One of the most important constitutional functions of the President is that he shall faithfully execute the laws. A President has much assistance in doing so, and is responsible for appointing and overseeing those who assist him in law enforcement. The President is also empowered to grant reprieves and pardons for federal crimes, and participates in the process of determining which acts will become federal crimes and how they will be punished. Accordingly, one might imagine that questions about federal criminal justice would form an important part of a presidential campaign, or at least a presidential debate. That is rare, however. I expect tonight will not be much different than the norm. We will hear much about Donald Trump’s poll numbers (as if high polls numbers for a candidate in a presidential primary have anything to do with effectively governing the Nation under its Constitution); Ted Cruz’s eligibility for President (an interesting issue but one probably ill-suited for discussion during a debate like this); and various other issues like how many bombs we can drop on ISIL in a day (we should destroy ISIL, but there are other threats to domestic security, as well).
I mention this topic, though, because the location of tonight’s debate – North Charleston – immediately calls to mind two important domestic criminal justice stories that are closely connected to a president’s, and the federal government’s, powers.
Last spring, North Charleston police officer Michael Slager shot and killed Walter Scott after a traffic stop. Widely-seen video of the shooting appears to show Slager shooting an unarmed Scott in the back while Scott was running away, though Slager has said that Scott posed a threat to him. The video sparked national outrage over the incident and resulted in Slager’s indictment in South Carolina state court on a murder charge.
And, of course, last summer, Dylann Roof allegedly shot and killed nine African-American men and women at a historic church just down the road in Charleston after they welcomed him to their Bible study group.
This locale, then, presents a unique opportunity to engage with the candidates on multiple issues related to these events. If convicted, should Roof get the death penalty? If not, why not? When, if ever, would you favor imposition of the death penalty in a federal case? What criteria would you use for granting clemency to a convicted person? How aggressive would you want your Justice Department to be in prosecuting civil rights violations committed by state and local police officers or those who commit federally-defined hate crimes? Would you favor a federal civil rights prosecution even where a State had already prosecuted the person? Are there any federal laws or executive actions that you would support that would result in better education and training for law enforcement officers with respect to civil and constitutional rights of citizens, and particularly with respect to the lawful use of force?
These are just a few questions that, probably, will not be asked tonight, but that could be, and should be. It is well past time to move beyond the view of the presidency as popularity contest. The question is: who can handle the complicated work of an American president? A candidate’s poll numbers, their level of anger, or the volume of their voices tell us nothing about the answer to that question – nor about the answer to the related question of how the candidate views the constitutional parameters of the office.