UPDATE (June 8, 2023 8:30 p.m. E.T.): Former President Donald Trump has officially been indicted on seven charges by special counsel Jack Smith. This is Trump’s second indictment.
The special counsel investigating Donald Trump’s alleged theft of classified documents seems to be getting very close to an indictment decision. Jack Smith apparently has a tape recording in which Trump appears to brag about having just such a document related to Iran. This report has no doubt whet the appetite of progressives who hope someday to see the ex-president behind bars, if not for this misdeed then perhaps as a result of alleged hush money payments and alleged violations of New York law, alleged election tampering in Georgia or his role in the Jan. 6 insurrection. (Trump has denied mishandling classified documents, denied breaking any laws regarding Stormy Daniels, denied tampering with election results in Georgia and denied inciting the Capitol riot.)
This report has no doubt whet the appetite of progressives who hope someday to see the ex-president behind bars.
In the New York case alone, Vanity Fair reports Trump could theoretically face a massive jail sentence. “While a conviction is not a sure thing,” writes Bess Levin “and a sympathetic judge could go for the lower end of the sentencing guidelines, Trump, who is 76 years old, would obviously die in prison if he were to get the maximum time behind bars.” According to MSNBC columnist and former U.S. attorney Barbara McQuade, prison time may be unlikely in Manhattan. But the Justice Department and Georgia cases could carry even heftier sentences.
It’s all hypothetical at this point. But some of the rhetoric we’re seeing from progressives is striking. And expectations do not necessarily match reality. Sentencing criminals to substantial prison time or to die in prison is usually not high on the agenda of progressives. Yet some seem prepared to carve out an exception for Trump. Even more problematic is the assumption that there can be no accountability without prison time, no matter the crime, especially among those who have long advocated for alternatives to incarceration.
I certainly understand the appeal of a kind of poetic justice for the man who, during the 2016 presidential campaign, led rowdy crowds chanting “Lock her up” about Democratic nominee Hillary Clinton. Progressives have rightly questioned the humanity as well as the efficacy of actually locking people up. Accountability and incarceration are not always the same thing — or at least they shouldn’t be.
The argument I see many progressives making about Trump rests on three premises, which I will call “the rule of law” premise, the deterrence premise and the equal treatment premise.
As to the first, Michael Waldman wrote last March that “No other former U.S. president has been criminally charged, reflecting a strong democratic norm. But,” Waldman continued, “Trump flouts the law as few other public figures ever have. … Corrupt public officials face prosecution all the time. We strive for a legal system that holds those who violate the law accountable. Nobody should be above the law — certainly not former presidents.”
All true and persuasive, but the law generally only authorizes prosecution and punishment. It seldom requires that any offender be prosecuted or punished in any particular way. And where it does, as in mandatory sentencing laws, progressives have rightly led the way in criticizing it.
A Boston Globe editorial titled “Future-Proofing the Presidency” embraces the deterrence rationale for putting Trump in jail. It argues that “presidents also need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished — that ethics policies and legal requirements, both the existing ones and those Congress will hopefully enact in the future, are more than just words on paper.”
With regard to the crimes charged in New York, the equal treatment argument may cut against imprisonment.
But even if one generally subscribes to the view that punishments deter, there are, of course, alternative responses for law-breaking presidents: impeachment, removal from office and disqualification from ever holding office again. Might these also “future-proof” the presidency?
Finally, equal treatment. The argument here is straightforward. Trump should not receive less punishment than others who have committed similar crimes. A CBS/YouGov poll found that 87% of all Americans think that Trump should be treated the same as any other American if he is convicted of committing a crime. But with regard to the crimes charged in New York, the equal treatment argument may cut against imprisonment. As Law & Crime noted recently, “Many experts contend that even if Trump is convicted, he is unlikely to see prison time because judges rarely sentence first-time offenders to prison for that type of felony.” In cases involving the wrongful possession of classified documents, like the one Jack Smith may bring against the former president, the record is mixed. Of course, precise comparisons cannot be made without seeing what precise charges might be brought against Trump. Will he be charged with obstruction? Which is something more serious. The equal treatment case for imprisonment is strongest in the case of alleged offenses committed in conjunction with the Jan. 6 insurrection, an event Jack Smith is also investigating. Many of those who were convicted of having participated in the riot have received jail time, including Oath Keepers founder Stewart Rhodes, who was sentenced on May 25 to 18 years in prison for leading a Jan. 6 seditious conspiracy. But again, we do not know what crimes, if any, Trump will ever be convicted of — and a charge as serious as seditious conspiracy is incredibly unlikely. No matter what happens, progressives who have worked long and hard to educate Americans about the failures of incarceration should not let the desire to see Trump punished blind them to everything that they have so carefully documented about the injustice, inhumanity and failures of American prisons. The cheers of “lock him up” may feel satisfying, but they do not ensure justice.
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
