Trump shouldn't have had to post bond

The pretrial system, including bonds and mugshots, is unjust.

Al Capone’s 1939 mugshot

Donald Trump has been indicted in Fulton County, Georgia for a conspiracy to overturn the state’s presidential election results. He’s had bond set at $200,000; last week he had to report to the court for arraignment and a mug shot.

Trump’s treasonous conduct in the 2020 election was a direct threat to democracy. He also targeted election workers for horrific harassment. After Trump and his crooked crony lawyer Rudy Giuliani claimed, without evidence, that poll worker Ruby Freedman and her daughter Shaye Moss had tampered with ballots, she received a terrifying wave of death threats and harassment. She just wanted to contribute to democracy and help her neighbors vote, and Trump decided to destroy her life.

It's no surprise, then, that many have reacted with glee to news that Trump is to be humiliated via the pre trial detention process. The conservative anti-Trump Lincoln Project summed up the mood on twitter. “Yesterday while Donald Trump was negotiating his Fulton County jail bond, President Biden was touring fire damage and touting FEMA assistance for Maui,” the account said triumphantly.  “Real governance versus criminal behavior.”

Again, I get it. I hate Trump too, and it’s fun to see him suffer.

Rather than cheer as our pre-trial system spatters mud and misery on Trump, we might want to take a minute to ask whether we actually want a pre-trial detention process that involves public humiliation and suffering. Remember, people in the pre-trial system have not, by definition, been convicted of anything. Any shame or discomfort they suffer is punishment without trial. And punishment without trial is, I think most people would agree, unjust.

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Cash bond punishes people for being poor

When the Lincoln Project conflates negotiating a bond with “criminal behavior”, it’s saying that everyone who is out on bail should be stigmatized and treated as if they’re a criminal. It’s also legitimizing cash bond—which no one should do, not least because the cash bond system is set up specifically to advantage people like Donald Trump.

As everyone knows from innumerable cop shows and films, cash bail is money you put up after arrest to ensure your return for trial. If you have the money, you can walk free. If you don’t, you’re jailed.

The inequity here should be obvious. Donald Trump has $200,000 on hand, so he can just walk away from his arraignment. A poor person who commits a crime, though, and can’t raise the money has to rot in jail, even though they have not been convicted of anything, and even though they are no more of a flight risk, and no more of a danger, than Donald Trump.

The assumption is that if Trump hands over $200k, he won’t run or commit a crime because he doesn’t want to forfeit the deposit. But does that really make sense? Trump is a rich man with the support of many other rich people and a huge partisan apparatus that can generate fundraising on a whim. He openly “joked” that if he ran, he’d go to Putin’s Russia, where he’d be treated as a dignitary.

It’s hard to imagine the situation in which Trump would materially change his actions based on $200,000 in bail. Which means (a) the prosecutor has released someone who is a flight risk and a danger, or (b) the prosecutor assessed bail for no reason.

There is a plausible answer (c), which is that the cash bond system is not really intended to ensure public safety, but is instead designed to humiliate and harm people who are arrested—and especially to humiliate and harm poor people.

And sure enough a 2017 report on the LA jail system concluded that the system “releases defendants based solely on their ability to pay, without regard for their public safety risk or probability of appearing at future court dates.” Bond is not good at keeping dangerous flight risks off the street, but it is very good at keeping poor people (and especially poor people of color) jailed. That’s why “people in jail are even poorer than people in prison,” according to a 2016 report at the Prison Policy Initiative. The median income of those in jail is $15, 598 for men and $11,071 for women—half that of non-incarcerated people.

Again, this is the inevitable result of using money as a metric to release people from prison. If Trump is a real flight risk, he should not be released. If he isn’t a flight risk, assessing a bond is simply a way to punish him before trial—and/or, a way to make sure that only rich people get released from pre-trial detention. Assessing bond is obviously illogical, immoral, and unjust—and the injustice doesn’t primarily harm Donald Trump.

Also I have bad news about mugshots

Just as the Lincoln Project was excited about Trump having to negotiate bond, lots of people on social media have been thrilled that Trump and Trumpworld invertebrates such as Giuliani and Jenna Ellis have been forced to present themselves at Fulton County courthouse for mugshots. The resulting portraits have been widely shared and mocked.

All in good fun, right? Well, not exactly. I don’t love defending any Trumpworld invertebrates, even obliquely. But the fact is that using mugshots to shame and harass people is quite common, and it has real downsides.

Mugshots are pictures taken by law enforcement on an individual’s arrest, ostensibly as a record of their appearance so they can be tracked down if they flee. They’re generally seen as a quintessential record of criminals and criminality.

But since they are taken on arrest, mugshots are by definition not a record of criminality. They’re a pictorial record of individuals who are presumed innocent; they haven’t been convicted.

In the internet age, law enforcement agencies often post these images on their websites. They may be disseminated by media or social media. That can do serious harm to “individuals seeking employment, online dating, furthering education, [or] housing,” as the Campbell Law Observer explains. Worse, some websites have specialized in posting mugshots as a kind of blackmail, charging people a fee to have them taken down.

Again, remember that having a mugshot just means you were arrested. It doesn’t mean you were found guilty; it doesn’t mean you did anything wrong. But the mugshot, suggesting you are a criminal, can stay online forever. It’s essentially a legal smear—or worse, a smear perpetrated by the legal system.

Many anti Trump social media posters have used Trumpworld mugshots in just this way—as a tactic humiliate and mock people for having committed crimes.

In this case, the people in question are wealthy and powerful and committed wildly unethical acts in the public eye, whether or not they are convicted for them. But normalizing the link between mugshots and shameful criminality won’t ultimately hurt powerful people most. It will hurt the people who are typically criminalized and targeted by the police—which is to say, poor Black people and people of color.

Trump’s indictments don’t validate the criminal justice system

Trump’s indictments are so satisfying, so overdue, and so obviously necessary to preserve democracy, that it’s tempting to see them as evidence of something like justice. As Hillary Clinton said on Rachel Maddow’s show:

The only satisfaction is that the system is working. That all of the efforts by Trump and his allies and enablers to try and silence the truth and undermine democracy have been brought into the light. And justice is being pursued.

I think it’s important, though, to recognize that the US justice system really does not pursue justice, and to the extent that the system works, it works to crush the have-nots and to entrench the power of the haves.

That doesn’t mean that Trump’s an anti establishment hero. On the contrary, his manipulation of the bond system, and his ability to avoid most of the ugliness of pre-trial detention in most of his arraingments underlines the extent to which his power and wealth still shield him from consequences and accountability.

The takeaway here should not be that justice has triumphed because Trump has to face bond and get a mugshot. Rather, the takeaway should be that, if our pre-trial detention system is rarely deployed to humiliate and inconvenience people like Trump, maybe we don’t actually need it, and should stop using it to torment the poor and powerless.

Next month, Illinois is doing away with cash bail altogether. Trump’s senseless bail deal shows why the rest of the country should follow suit.