Four-time indicted former president Donald Trump never tires of painting himself as a victim. He and his supporters claim there’s a two-tiered justice system. They have a point on that score, but not in the way they intend.
Trump is well-lawyered. He’s famous. And he’s White.In our system, that means he’s in a far better position than many defendants.
No one, for example, has seriously considered pretrial detention for Trump — or even electronic monitoring or asking him to relinquish his passport. He’s not getting the same treatment as everyone else. Cynthia E. Jones, in a 2014 article in the N.Y.U. Journal of Legislation and Public Policy, wrote that “the almost unbridled decision making power afforded to bail officials is often influenced by improper considerations such as the defendant’s financial resources or the race of the defendant.” She continued, “As a result of these failures, the bail determination process has resulted not only in racial inequalities in bail and pretrial detention decisions, but also in the over-incarceration of pretrial defendants and the overcrowding of jails nationwide.”
A 2019 report from the Prison Policy Initiative found:
As of 2002 (the last time the government collected this data nationally), about 29% of people in local jails were unconvicted — that is, locked up while awaiting trial or another hearing. Nearly 7 in 10 (69%) of these detainees were people of color, with Black (43%) and Hispanic (19.6%) defendants especially overrepresented compared to their share of the total U.S. population. Since then, pretrial populations have more than doubled in size, and unconvicted defendants now make up about two-thirds (65%) of jail populations nationally.
Black defendants are more likely to be detained pretrial and be assessed higher bonds. Pretrial incarceration, which can go on for months given trial backlogs, can put defendants in physical danger, deprive children of a parent, send their families into financial collapse and increase pressure to strike a plea deal.
And let’s not sugarcoat the conditions defendants awaiting trial must endure. The Fulton County Jail, where Trump might spend just minutes during processing, is notorious for “overcrowding and detainee deaths.” A jail designed to hold 1,125 instead holds 2,500; more than 60 inmates have died between 2009 and 2022 — 15 last year alone. It has been described as smelly, cold, bug-infested, filthy and decrepit.
Trial delays, a strategic tool for Trump, can be a hardship for those incarcerated or anxious to clear their names. In December, a CBS report found hundreds of thousands of pending criminal cases around the country.
The National Center for State Courts has documented that despite reform efforts, “delay in criminal case processing remains an ongoing problem for state courts. Few other problems command as much attention from judges, attorneys, and the public.” A 2023 Thomson Reuters Institute report found the problem getting worse: 79 percent of judges at state and municipal levels say “delays have affected their hearing process”; 44 percent of respondents say “backlogs had increased over the past 24 months”; and 45 percent say the same about court caseloads.
The biggest advantage for the rich, however, is access to expensive, experienced counsel and hordes of specialists, document readers, jury consultants and the like. Trump whines that he’ll need years to prepare for the trial in federal court over his role in the Jan. 6, 2021, insurrection. But he can hire as many lawyers as he likes and invest in software to manage documents. He’ll also be able to find jury consultants, experts and investigators. But what about those forced to rely on public defenders?
Documenting the vast caseloads public defenders must shoulder (for some, nearly 200 cases), the New York Times in 2019 reported, “Roughly four out of five criminal defendants are too poor to hire a lawyer and use public defenders or court-appointed lawyers. … In Colorado, Missouri and Rhode Island … the typical public defender had two to three times the workload they should in order to provide an adequate defense. In Louisiana, defenders have almost five times the workload they should.” When the amount of time and resources a public defender can devote to any one defendant is tiny, the pressure for a defendant to take a plea deal becomes intense.
An unequal justice system combined with criminalization of nonviolent drug offenses has led to the mass incarceration phenomenon, a driver of inequality, poverty and social distress. The discriminatory impact on people of color is undeniable. The Brennan Center for Justice reported:
More than 70 million Americans have a criminal record. Of them, nearly 8 million have been to prison. …These severe consequences are inextricably bound up with the nation’s 400-year history of racial injustice. Black and Latino men and women make up more than half of all Americans who have been to prison. This disparity likely stems from decades of discriminatory policies and overpolicing of communities of color.And while all people who have been to prison face severely reduced earnings, Black and Latino Americans are less likely than whites of the same socioeconomic group to see their earnings recover, suggesting that imprisonment traps them in low-wage jobs.
Historically, Republicans have had little patience for demands to fund courts, increase public defenders, improve jail facilities and reassess sentencing policies. Coddling criminals! Stuffing the pockets of lawyers!
Perhaps, as they watch Trump maneuver, delay, avoid and outspend prosecutors, Republicans might ponder the fate of those without his resources. If they do, they might rethink their antipathy toward adequate funding of the justice system and their indifference to mass incarceration. And should Trump, who is entitled to the presumption of innocence, wind up in a prison, it might even spark new interest in reforming prisons — where conditions can be frightful.