Beyond the benefit of being a former president, Trump enjoys other advantages over most criminal defendants
By Samantha Buckingham July 17, 2024 (SFChronicle.com)
Donald Trump arrives at court in New York on April 16 during his trial for allegedly covering up hush money payments to a porn starJustin Lane/AFP/Getty Images
In May, Donald Trump became the first former president to be convicted of a felony after a New York jury found him guilty of 34 counts of trying to influence the 2016 election illegally — by making a hush money payment to a porn star.
Though he complains about how unfair this and other prosecutions have been, in truth, Trump has enjoyed incredible advantages compared to the typical person arrested and prosecuted for a crime.
How would Trump be treated if he weren’t rich and powerful?
Let’s begin with the obvious: A federal judge Trump appointed just dubiously dismissed 40 charges against him only weeks after the Supreme Court decided that prosecutors may not use “testimony or private records” involving “official” acts while in office as evidence against him.
Trump’s original sentencing date for his New York convictions — for which he faces prison time — has been postponed from last Thursday until Sept. 18 to consider this latter ruling. Though his convictions involved acts before his election, and thus are not “official,” one of his former advisers did testify — Communications Director Hope Hicks. The judge will consider whether her testimony is a roadblock.
Beyond the unique benefit of being a former president, Trump enjoys other advantages over most defendants.
White-collar crime represents only 3% of criminal prosecutions. That’s not because there is little white-collar crime, but because these crimes are investigated differently than street crime. Gathering enough evidence to prosecute demands a labor-intensive investigation requiring skill, time and expertise. Unlike street crime, the target of a white-collar investigation is typically made aware of prosecutorial intent and can hire a lawyer before they are even arrested or charged.
After an investigation, the prosecution files charges. Once a court case begins, the accused is entitled to a lawyer. If you are rich, you hire a lawyer. But most people who face criminal prosecutions are too poor to access a lawyer until they are appointed one by the court.
Public defense is a proven safeguard against police and prosecutorial misconduct, wrongful convictions and systemic inequality. Yet, while the American Bar Association recommends that defenders of the indigent be limited to no more than 150 clients per year, caseloads can be five times higher.
Trump benefits from the unusual luxury of having several hand-picked attorneys devote their efforts entirely to him. To obtain such robust counsel, the former president supplemented his already deep pockets by securing funding for his defense from a political action committee. His attorneys had more resources than the prosecution; that is not the norm. Public funding for prosecution averages three times that of funding for defense. Nationwide, prosecutor offices receive about $3.5 billion more in funding than public defenders. Across California, public defender offices have 82% less money than district attorney offices.
At the first court appearance, the court considers if the accused may be released or held in jail. Because many jurisdictions use a cash bail system, someone with a higher bail than they can pay is held in jail pending their trial. Trump was not made to pay bail; he was released in New York on his personal promise to appear in court. In Trump’s civil fraud case, however, an insurance company owned by billionaire supporter Don Hankey put up $175 million pending an appeal of the $454.2 million judgment secured by the New York Attorney General.
Almost 2 million people are incarcerated in U.S. jails and prisons right now, and 1 in 4 of them are awaiting trial. About 400,000 people are held in jail simply because they cannot afford to pay the bail set for them. Bail is set on average two times higher for people of color than it is for white people. If an accused with children remains detained, they may lose custody of their kids and may even face termination of parental rights.
A defense lawyer will typically fight for a speedy trial because their clients are often in jail pending a decision. Most people charged with crimes — 90% to 95% — plead guilty largely because of the pressures placed on them by pre-trial detention.
Trump’s lawyers, meanwhile, routinely push for delay, in part to give themselves more time to mount the best case possible — a luxury that’s feasible only because their client is free. Most individuals facing four cases like Trump would be forced to admit to some guilt in exchange for a reduction in charges. Only someone who is released and has nearly unlimited financial resources could even contemplate fighting each case independently.
Unlike Trump, a defendant held in detention pre-trial will continue to be incarcerated while they await their sentencing. In California, there is a backlog of individuals who have been detained since arrest, have been convicted and are still awaiting their sentencing — which may or may not include prison time.
Because most defendants accept a plea offer and admit guilt, they lose the right to appeal any potential mistake at trial. Appeals are also limited by time and circumstance. Appeals are also harder to win for defendants than trials. Fewer than 10 % of appeals overturn a conviction. In criminal cases, the leading causes of wrongful convictions are misidentification and false confession.
No matter your political leanings, I hope you’ll consider the power disparity in our criminal justice system. Across our country, people convicted of crimes are unable to remain with their families, unable to choose a lawyer who they wish to represent them and unable to fight their case at trial because of the incredible pressure to plead guilty. Trump is an exceptional defendant, not solely because he was and wants to be president.
Samantha Buckingham is a visiting professor at Loyola Law School in Los Angeles.
July 17, 2024
Samantha Buckingham
