Trump’s Bail Outcry Unveils America’s True Justice Disparity

When Donald Trump was charged and arrested along with 18 co-defendants by Fulton County District Attorney Fani Willis, Trump and his spokespeople took to social media and the press to lament the existence of a “two-tiered system of justice.” But these complaints are a ruse, meant to suggest an injustice that doesn’t exist for the affluent and privileged – not in the way that it does for America’s poor. All but one of the defendants in the Fulton County election interference case paid bail amounts that were in the hundreds of thousands of dollars. They did not spend a single day in jail. There is a two-tiered system of justice in America, but it’s not the one Trump and his team described.

At The Bail Project, a national nonprofit dedicated to ending reliance on cash bail where I am the Chief Executive Officer, we also talk about a two-tiered system of justice. When there is a price tag put on individual freedom, those who are wealthy and who have resources are able to pay bail and be released, whereas those who are too poor to pay bail are detained pretrial, even though they have not been convicted of any crime. This truly two-tiered system of justice created by cash bail is wholly unfair and inconsistent with the values that we hold to be true and sacrosanct within our United States Constitution: that everyone is equal under the law and that everyone is presumed innocent unless proven otherwise.

We also know that cash bail is unnecessary. Since 2018, we have paid bail for nearly 30,000 people who have returned to court more than 91% of the time, which lays waste to the idea that cash bail is necessary to ensure that someone returns to court. To date, several states and jurisdictions have significantly curtailed the use of cash bail with no negative impact – rates of court appearance did not decline, nor was there any meaningful increase in new criminal arrests when people were released.

America’s courts and policymakers are not making decisions based on the evidence that the vast majority of people can safely be released to their communities for the duration of their case. Because of this, individuals and their families are forced to suffer the consequences of pretrial incarceration. I would know. I experienced this all first hand.

Several decades ago, when I was a young man, I made some mistakes that led to me being arrested. I spent nearly a decade in prison on a sentence that was ultimately appealed, leading to my subsequent release, eleven years earlier than my sentence was planned for. While I was incarcerated, I came into contact with many people who, like me, could not afford to pay the bail amounts that were set against them when they were initially arrested and charged. From behind the bars of a jail cell and operating at an eighth-grade reading level, I took a plea deal that cost me many years of my early adulthood simply to escape the trauma of county jail, and to move forward the process, so that I could hopefully return to my family sooner. Though I was ultimately able to appeal that sentence, I will never get those years back. If cash bail didn’t exist and I was able to fight my case from home, I may have never spent a day in prison at all.

There was never any doubt that Donald Trump, or the wealthy lawyers that were also indicted, would be able to pull together the financial resources to pay their bail and secure their pretrial liberty. The same goes for Hunter Biden had he been arrested and held on bail. Wealth-based detention doesn’t discriminate by party or ideology. The reason they paid bail is the same reason anyone would – because no one wants to be incarcerated pretrial and because it is far better to mount an effective defense from outside of a jail cell. But for me and the more than 400,000 people, disproportionately people of color, who are detained pretrial on any given day, those resources were out of grasp.

Most people who are detained pretrial cannot afford to pay the $10,000 bond that is the national average. To do so, they turn to predatory for-profit bail bonds agents, and they pay a 10% – 20% premium that they will never get back, even if their cases are dismissed or they’re found not guilty. In many cases they must sign away their homes or the titles to their cars and enter into agreements with high-interest rates that force them deep into debt.

Who can blame anyone for going to these extremes? Our nation’s jails are notoriously overcrowded, improperly maintained, and dangerous. The Fulton County Jail, which Trump and his co-defendants avoided altogether, is currently under investigation by the Department of Justice for inhumane and dangerous conditions. 19 people have died in custody there this year alone, including Lashawn Thompson, a man suffering from schizophrenia who was found dead in his cell, his body severely infested with bed bugs. Because of these conditions, people face incredible pressure to accept plea deals just so they can go home.

In the wake of the prosecutions in Fulton County, many people have been calling for the elimination of cash bail. This is something to which we should all wholeheartedly agree. Donald Trump nor his co-defendants should have been subject to bail. Neither should the nearly 30,000 people we’ve assisted at The Bail Project. Our society is better served when these decisions about release and detention are made on the basis of law and evidence rather than money as a proxy for who goes free.

There must be accountability for crimes committed, of course, but that’s not what bail does. Accountability does not equal punishing someone before they’ve had their day in court because they can’t afford to buy their freedom. Everyone deserves a fair trial and equal justice under the law. When cash bail is a part of the equation, poor people and people of color are denied these fundamental American rights.

PHOTO: flickr North Charleston / Ryan Johnson CC BY-SA 2.0