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justice system
If Trump Doesn’t Change, Judge Merchan Will Have No Choice But to Lock Him Up
The key to obtaining leniency in criminal sentencing, even in cases where guilt is a close call, is to show respect for the system and the judge, and to demonstrate remorse, something Trump has failed to do.
Jun 14, 2024
The most important date on Donald Trump’s July calendar isn’t July 4, when the nation celebrates its independence. Nor is it July 15, when the Republican Party convenes its national convention to christen Trump as its official standard-bearer for 2024. The most consequential date is July 11, when Trump will appear for sentencing hearing before New York state judge Juan Merchan.
Merchan will be faced with the historic task of deciding whether a former president should be sent to prison after being found guilty of 34 felony counts of falsifying business records in a prosecution brought by Manhattan District Attorney Alvin Bragg. Once thought to be the weakest of the criminal actions taken against Trump, the case has succeeded beyond expectations in holding Trump to account for his history of skirting the law. But while millions of Americans will be rooting for Merchan to throw the proverbial book at Trump, Merchan’s sentencing decision will not be easy, legally or politically.
From a purely legal standpoint, Merchan’s decision will be one of first impression that will invite close scrutiny on appeal after a hotly contested six-week trial. The decision will also reverberate politically, exacerbating the country’s partisan divides, and strengthening Trump’s stranglehold on the GOP and the neofascist movement he leads.
The worst part of the entire process is not that a former president is now a convicted felon, but that he has convinced nearly half the country that the justice system is so thoroughly corrupt and rigged that the rule of law itself isn’t worth saving.
Under New York law, falsifying business records is ordinarily a misdemeanor. The offense is elevated to a class E (low-grade) felony when the falsification is undertaken for the purpose of committing or concealing an additional crime. The additional crime in Trump’s case is another New York statute that makes it an offense for two or more persons to conspire to influence the outcome of an election by “unlawful means.”
Trump’s co-conspirators include his one-time attorney and “fixer” Michael Cohen; former National Enquirer publisher David Pecker; and Allen Weisselberg, the erstwhile chief financial officer of the Trump Organization. Together with Trump, they hatched a “catch and kill” scheme in August 2015 to prevent the publication of any stories unfavorable to Trump as he campaigned for president in the 2016 election. As part of the scheme, Cohen paid adult film star Stormy Daniels $130,000 to suppress her alleged sexual encounter with Trump in 2006. The hush-money amounted to an illegal in-kind campaign contribution because it exceeded the 2016 limit of $2,700 placed on individual contributions by the Federal Election Campaign Act, and the contribution was never reported to federal regulators.
Given the jury’s unanimous verdict, Merchan will have several sentencing options. Each of the 34 counts carries a potential four-year prison term, with a maximum cap of 20 years. Merchan has the authority to impose any period of incarceration within the statutory maximum, but class E felonies carry no mandatory minimum sentences. Instead of sending Trump to jail or prison, Merchan will have the discretion to place Trump on formal probation, requiring him to report periodically to a probation officer, or grant him a “conditional discharge,” a type of sentence that sets conditions on his release but doesn’t involve in-person supervision. He could also sentence Trump to a term of home confinement or require him to perform some kind of community service plus a fine.
Although Merchan will make the final decision, Trump will play an active and possibly decisive role in determining his punishment. In a very real sense, depending on how he behaves before July 11, Trump will hold the keys to his own future prison cell.
Prior to pronouncing Trump’s sentence, Merchan will receive recommendations from the defense, the district attorney, and the city’s probation department. The probation department conducted a virtual interview with Trump from his Mar-a-Lago home on June 10, and in the coming weeks, it will prepare a pre-sentence report for Merchan’s review. As in other felony prosecutions, the report will focus on such items as the nature of the offense, Trump’s personal history, and his willingness to comply with the terms of probation.
At the sentencing hearing, Merchan will balance and weigh the mitigating factors that militate in favor of a light disposition against the aggravating factors that point to incarceration. As attorney Norm Eisen, who served as co-counsel for the House Judiciary Committee in Trump’s first impeachment trial, has written, Merchan will begin with “the base line against which judges measure all sentences: how other defendants have been treated for similar offenses.”
Eisen’s research shows that since 2015, the Manhattan district attorney’s office has filed over 400 cases of felony falsification of business records. Only 1 in 10 convictions, however, has resulted in incarceration.
The infrequency of jail, along with Trump’s advanced age (he will be 78 at the time of sentencing); the absence of a prior criminal record; and his service as a former president will count as mitigating factors.
On the other side of the ledger, Trump has been found civilly liable for sexually assaulting E. Jean Carroll. In addition, he has been ordered to pay $364 million ($454 million with interest) in damages as a result of the massive business-fraud lawsuit filed by New York Attorney General Letitia James that concluded earlier this year. He also has violated the limited gag order Judge Merchan imposed on him 10 times, resulting in two findings of criminal contempt. Even more significantly, he has shown absolutely no remorse for his conduct, and has vowed to exact revenge on his political rivals should he be reelected.
On balance, the scales clearly tip against Trump. The key to obtaining leniency in criminal sentencing, even in cases where guilt is a close call, is to show respect for the system and the judge, and to demonstrate remorse. Aware of this cardinal rule, Trump’s lead lawyer Todd Blanche has obtained an order from Merchan permitting him to be present at any pre-sentence interviews to soften his client’s image and demeanor.
It is all but certain that Blanche’s efforts will fail. Trump, according to many mental-health professionals, is a “malignant narcissist” who suffers from a disorder marked by paranoia, narcissism, antisocial personality, and sadism. He is incapable of admitting fault, much less criminal responsibility.
If Trump remains true to form, Merchan will have no choice but to sentence him to jail at Rikers Island or prison at one of New York’s 41 state correctional facilities for men. The sentence will likely be stayed while Trump’s appeal plays out, but will be imposed if the appeal fails.
In the interim, Merchan can be expected to follow standard judicial practice in white-collar prosecutions and grant Trump bail on appeal, allowing him to run unfettered for reelection, and accelerate his unhinged attacks on the rule of law. The worst part of the entire process is not that a former president is now a convicted felon, but that he has convinced nearly half the country that the justice system is so thoroughly corrupt and rigged that the rule of law itself isn’t worth saving.
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On Imprisoning Presidential Candidates: From Eugene Debs to Donald Trump
It is hard to imagine Trump serving even any time in prison for the alleged felonies he has committed, let alone anywhere near the 2.5 years served by Debs, the American socialist leader imprisoned for speaking out against war and in favor of civil liberties like free speech. How's that for justice?
Jun 03, 2024
Now that a New York jury convicted Donald Trump of 34 counts of falsifying business records in order to conceal hush money paid to a porn star and to evade campaign financial regulations, speculation has begun about his sentencing. Even though his outrageous behavior towards and slander of the district attorney, the judge, the witnesses, and the jury should warrant a punitive sentence, up to and including prison, it is highly unlikely that he will spend any time in jail.
However, for those who argue this is a first-time offense for a white-collar crime, this neglects the whole pattern of lying and fraud for which he and his business associates have already been convicted in a civil case. Moreover, given the credible allegations of rape, and the guilty judgment in the E. Jean Carroll defamation and sexual abuse case, Trump clearly is a serial offender against a whole host of individuals and institutions.
As much as Trump rails against a “rigged” justice system, he has been treated with the kind of latitude and privilege befitting a wealthy white member of the ruling elite.
It is, of course, Trump’s political crimes that constitute other egregious felonies for which he has already been indicted. Unfortunately, through delay and the intervention of a politically compromised U.S. Supreme Court, the Orange Blob has avoided wearing the Orange Suit of a jailed prisoner. In addition, because of the feckless Merrick Garland, Trump’s incitement to insurrection and efforts to overturn the 2020 Presidential election were not immediately prosecuted. Thus, it may be that Trump avoids going to prison for any of these political crimes.
As much as Trump rails against a “rigged” justice system, he has been treated with the kind of latitude and privilege befitting a wealthy white member of the ruling elite. However, over a century ago, another presidential candidate was not as fortunate when it came to what passed for justice during World War One. While there may be some oblique reference in the mainstream media to the 1920 presidential candidate of the Socialist Party sitting in the Atlanta Federal Penitentiary, it is important to recount the context in which Eugene V. Debs was sentenced to a ten-year prison term.
Debs, like the majority of the members of the Socialist Party of the United States, opposed the U.S. participation in WWI and denounced conscription as a vehicle for providing “cannon fodder” for the slaughter-fest. The presumption of a constitutional right to free speech, however, was contravened by the passage in 1917 of Espionage Act and in 1918 of the Sedition Act. Under these acts, the Wilson Department of Justice arrested hundreds of prominent opponents of the war and conscription. Indeed, when Debs came to Canton, Ohio in June 1918 to address the Ohio Socialist Party convention, three of its leaders were already serving sentences and being tortured in jail for antiwar speeches.
Addressing the thousands gathered to hear his talk on June 16, 1918, Debs defended the right to free speech during wartime even as he attempted to lay out a carefully constructed criticism of conscription. Nonetheless, there was enough in the address for a Cleveland federal grand jury on June 29, 1918 to indict Debs for alleged violations of both the Espionage and Sedition Acts. During the September 1918 trial, he reminded a jury composed of well-to-do residents of rural and small Ohio towns that “the right of free speech” should be upheld “in war as well as in peace.” Debs did not try to obscure the fact that he opposed the war precisely because it was the “ruling classes that make war upon one another, and not the people.”
Unmoved by Debs’s arguments, the jury found him guilty on all the charges and the judge then sentenced him to ten years in prison. Released on $10,000 bail (nearly a quarter of a million in today’s dollars), he began an appeal process that reached the U.S. Supreme Court. Writing for the unanimous decision of the Court on March 10, 1919, Justice Oliver Wendell Holmes Jr. re-affirmed that Debs’s Canton speech was “seditious.” A little more than one month later, Debs was sent to a maximum-security prison before being transferred to the Atlanta Federal Penitentiary on June 14, 1919. It was in that facility that Debs received over 900,000 votes in the 1920 presidential election.
Upon being sent to prison, there were requests from progressive and liberal voices, including from AFL union members, for President Wilson to pardon Debs. All those appeals were rebuffed. When Warren Harding took over the presidency in 1921, there was even a louder chorus urging a general amnesty for all those languishing in prison as a consequence of their vocal opposition to WWI. Although rejecting a general amnesty, Harding pardoned Debs in December 1921, commuting the reminder of his ten-year sentence.
It is hard to imagine Trump serving even any time in prison for the alleged felonies he has committed, let alone anywhere near the two and a half years served by Debs. Moreover, if Trump manages by hook or crook (and the arcane electoral college is definitely an antidemocratic hook) to recapture the White House, one can imagine self pardons for federal crimes and the overturning of state crimes. Finally, given Trump’s avowed intentions to punish his political opponents, round up and deport migrants, and to shape his own “Justice” Department, any prospect of a Trump presidency must be viewed with alarm.
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Right-Wing ALEC Bolsters Destructive For-Profit Bail Industry
"Restricting the operations of charitable bail organizations is like closing down a food pantry and claiming you’re curing hunger."
Mar 19, 2024
The American Legislative Exchange Council (ALEC) is helping the for-profit bail industry push legislation in four states to restrict or outright eliminate charitable bail funds, which provide those unable to afford bail with enough cash to avoid being imprisoned while awaiting their day in court.
Led by the American Bail Coalition (ABC), the commercial bail industry sees the growth of charitable bail funds as a threat. The national trade group, which opposes bail reform efforts across the country, is also one of ALEC’s key corporate members. Last fall, ABC provided platinum-level sponsorship of ALEC’s ritzy 50th anniversary gala; its chairman, Bill Carmichael, is the vice chair of ALEC’s private sector board of directors; and an ABC representative sits on ALEC’s Criminal Justice Task Force. Since joining the pay-to-play legislative bill mill in the early 1990s, “ABC has written 12 model bills fortifying the commercial bail industry,” the group claimed in a 2010 newsletter.
Charitable bail funds post bail to secure pretrial release for people who couldn’t otherwise afford it. Many groups, such as the Atlanta Solidarity Fund, also operate with the specific purpose of assisting activists who often face arrest for public protests and end up in jail when unable to pay steep cash bail amounts.
Model policy developed by the ABC cautions that “in the past few years, the [charitable bail] funds have nationalized, and are now operating in [a] fashion to destabilize the bail system.”
The bills targeting charitable bail funds — which are currently being considered by lawmakers in Georgia, Kentucky, Washington, and Virginia — call for imposing general reporting and registration requirements, setting a maximum amount of bail that a fund can cover, and/or limiting the number of times a charity can post bail to just three per year, which would effectively shutter its operations.
“Restricting the operations of charitable bail organizations is like closing down a food pantry and claiming you’re curing hunger,” says Jeremy Cherson of the Bail Project, a national nonprofit that advocates for the elimination of cash bail while also providing bail and support services.
Instead of investing in support services, “lawmakers in these states have pursued shortsighted solutions that stick with the status quo of cash bail,” he points out. That, in turn, “leads to unnecessary incarceration and all its attendant consequences like job loss, family separation, and housing instability, which only makes cities and states less safe.”
Critics of the cash bail system repeatedly warn that curtailing the operations of bail funds disproportionately impacts poor and working-class Black and brown people.
The for-profit bail bond industry generates as much as $2.4 billion in annual revenue, according to U.S. industry estimates, with more than 2 million people entering into contracts with private bail bondsmen every year. The top six bail insurers control 76% of the market, according to reporting by Reuters.
The U.S. and the Philippines are the only countries in the world with commercial bail industries. Bail bond agents charge people who can’t afford bail a non-refundable fee — usually 10% of the set amount — to ensure that bail will be paid in full if the defendant doesn’t show up in court. Defendants frequently borrow money from bail bondsmen at predatory interest rates to cover their fees. The profits from these exorbitant rates are split between the bail bondsman and the insurers that provide the financial backing.
The heightened focus on charitable bail organizations comes amidst other corporate-funded assaults on the right to protest and ongoing threats from 2024 presidential candidate Donald Trump to deploy the military against civilian protesters.
A Center for Media and Democracy (CMD) analysis of current and recent bills that seek to curtail the operations of charitable bail funds found that the ABC has likely used its ALEC connections with state lawmakers to advance these pieces of legislation.
The Bail Industry’s Playbook
The number of bills seeking to regulate or restrict the operations of charitable bail organizations skyrocketed in 2020 after nationwide protests in the wake of George Floyd’s murder in June of that year. When donations poured in to bail funds across the country, some of the accompanying media attention focused on certain funds that had bailed out individuals accused of committing violent crimes.
By the end of the year, the ABC had published a briefing document calling for the regulation of charitable bail funds. “During 2020, these funds grew in popularity due in large part to celebrity and political endorsements aimed at posting bail for those arrested during the violent protests across the country which began after the George Floyd incident,” the document states. “With a warchest perhaps as high as $200 million nationally, these funds are now a major issue in bail and pretrial release,” and are being used “to destabilize the bail and criminal justice system.”
Critics of the commercial bail industry counter that the for-profit business is far more detrimental.
“The payment plans, the 10% fees, the collateral bail bonds agents extract — those are the types of disruptions that take people years to recover from,” the Bail Project’s Cherson told CMD.
The ABC, which has an annual revenue of $2.3 million according to its most recent tax filings, consists of five surety insurance companies that pay steep membership dues.
In late 2021, the coalition published a model policy on how to regulate the charitable bail industry. The aim of the model bill was to hamstring charitable bail funds by putting into place preliminary reporting and regulatory requirements. It was based on a bill that passed in New York — the first state to enact restrictive legislation — along with legislation introduced in Texas and Indiana.
ABC has gone so far as to suggest that charitable bail funds may not be legal because they leave “the defendant [with] zero financial incentive to show up in court.”
The coalition spent more than $1 million on lobbying in 2022, according to its most recent tax filings, nearly double what it spent in 2020. A Reuters investigation found that in 2020 insurance companies spent $17 million “to defeat proposals to weaken or abolish the for-profit bail industry in the United States” — an industry that “brings insurers $15 billion in business a year.”
Georgia’s Crackdown
Georgia’s SB 63, which has been passed in both legislative chambers, would prevent charitable funds from posting more than three cash bonds per year and require them to have their application approved by a local sheriff’s department. It would also dramatically expand the number of bail-restricted violations — including unlawful assembly, which is often used as a dragnet to include peaceful protest. A previous, less expansive version of the bill was proposed in 2022, but failed to pass.
A spokesman for Governor Kemp’s office said that the legislation is “undergoing a thorough review process.”
In a recent statement about the bill, Tiffany Williams Roberts, public policy director of the Southern Center for Human Rights, notes that “given the history of bail funds in many civil and human rights movements in Atlanta, SB 63 represents another violent attack on the right to political dissent, which, unfortunately aligns with Atlanta’s current repression of social movements that challenge the criminal legal system.”
Two of the bill sponsors, Republican senators Frank Ginn and Stephen Gooch, are members of ALEC, with Gooch serving as an ALEC state chair. Its House co-sponsor, Rep. Houston Gaines (R), is also an ALEC member who has delivered on other ALEC priorities such as preempting local democratic control over law enforcement budgets.
Speaking on the House floor earlier this month, Gaines repeatedly referred to defendants — regardless of what they were charged with — as criminals who are “not showing back up for court, and staying on the streets,” framing his attack with rhetoric that echoes the industry’s talking points.
According to a recent ABC statement, “Georgia has come up with what is really a very simple floor for these dangerous criminals — they aren’t getting out of jail free without some assurance that they will show up for court and answer for the charges.”
Charitable bail funds are “unaccountable,” Gaines said in claiming that these organizations are responsible for releasing “violent criminals on our streets.”
The ACLU of Georgia has said that it will sue the state if Kemp signs the bill.
Other States with Pending Legislation
Kentucky
In Kentucky, a sweeping piece of legislation called the Safer Kentucky Act, which rewrites and expands much of the state’s criminal code, has widespread support among Republican lawmakers. It would limit bail payments by charitable bail organizations to a maximum of $5,000 and prevent those organizations from posting bail for people accused of certain violent crimes. The component targeting charitable bail organizations has been recycled from a previous bill first proposed in 2022.
Washington
In Washington, state Senator Mike Padden (R) reintroduced SB 5116, which would impose registration and reporting requirements on charitable bail funds. Padden, who is also a founding member of the state’s conservative Freedom Caucus, has served as a member of ALEC’s Criminal Justice Task Force. When he was a state representative in the 1990s, he served on ALEC’s board of directors.
In the early 2000s, Padden used his influence to secure $7.5 million in fees and interest payments via favorable county contracts and special interest legislation for his former employer, a debt collection agency. This session, the senator has also sponsored bills to repeal a state ban on contracting with private prison companies and authorize the use of chokeholds by police.
Virginia
Virginia’s HB 846, introduced by conservative delegate Wren Williams, would similarly regulate charitable bail funds by implementing steep registration fees and other requirements. The bill also prevents bail funds from assisting anyone previously convicted of a violent crime.
Legislative Successes
Beyond New York, Indiana is the only state to have put in place significant restrictions on charitable bail organizations with the passage of HB 1300 in 2022. The law requires charitable bail organizations to be certified by the state, prevents them from receiving state funding, and prohibits them from bailing out any defendant who has been charged with a violent crime or a felony, or has a prior conviction for a crime of violence. The Indy Starreported how a misinformation campaign that misrepresented the number of reoffenders bailed out by bail funds helped propel the proposed legislation into law.
In the wake of its passage, the Bail Project teamed up with the Indiana ACLU to sue the state over what it argued was unjust targeting of its organization. The Bail Project came under intense media scrutiny in Indiana after three of the individuals it bailed out committed violent crimes on pretrial release, making it the industry’s strawman for arguing in favor of maintaining the status quo.
Although neither the bill’s author, Rep. Peggy Mayfield (R), nor its coauthor, Rep. Donna Schaibley (R), are known to be ALEC members, reporting by CNN found that Mayfield had contact with the ABC while drafting the legislation. In addition, the three Senate sponsors of the bill are all affiliated with ALEC.
“Unlike licensed bail agents, bail funds do not have the ability to recover defendants who skip court, and their involvement should be limited to cases that don’t impose a significant risk to the public’s health and safety,” ABC Executive Director Jeffrey J. Clayton wrote in an op-ed when a previous version of the legislation was under consideration.
Cherson disagrees, telling CMD that “charitable bail organizations make a small but meaningful impact on the incredible devastation wrought by this system. And the more legislatures pursue these types of restrictions, the more broken these systems become.”
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