Thinking About Trump's Indictment from an Abolitionist Perspective

-- By IlanaDutton - 04 Apr 2023

On April 4th, 2023, former-President Trump was indicted and arraigned in Manhattan. While my initial reaction to his indictment was one of excitement, after reflecting on it, I realized being excited that someone was entering the criminal legal system was contrary to my abolitionist beliefs. Since then, I’ve been thinking about how principles of abolition could apply to white-collar crime in an effective way and how it should extend.

Abolition

Abolition refers to the movement of dismantling the carceral system in the United States and instead constructing and investing in systems, practices, and resources that make it possible to abolish the system. The movement is rooted in three separate principles. First, incarceration does not meet any of the supposed goals of punishment, which are deterrence, incapacitation, rehabilitation, and retribution. Second, incarceration creates tangible harm at the community and individual levels. And finally, the institutions of incarceration and policing in the U.S. continue a history of white supremacy and racism. Abolitionists argue that the criminal legal system as it currently stands perpetuates oppression and can do more harm than good in creating a safer society. Dismantling the carceral system does not only mean eliminating places of imprisonment, but it means considering how we distribute resources and how we address conflict and harm in a world without imprisonment. Instead of thinking about deterrence, abolitionists think about how to build systems to prevent interpersonal harm by focusing on the material, social, and environmental conditions that often lead to it. Abolitionist scholarship recognizes that there will be harm in society, but challenges people to think about whether institutions exist that could respond more effectively to harms that are perpetuated Abolitionists push for restorative and transformative justice to promote accountability and repair the damage that violence can do to a community.

Trump's Indictment

Donald Trump was charged with falsifying business records to conceal damaging information and unlawful activity from voters before and during the 2016 election. The indictment charges the former president with 34 counts of falsifying business records in the first degree, in violation of New York Penal Law §175.10. These charges are connected to hush money payments that Trump made to various individuals in order to conceal damaging information. According to District Attorney Bragg, the payments were made prior to the election, and once he was elected, Trump reimbursed individuals with checks processed through the Trump organization and disguised the payments as those made for legal services.

A Note on White-Collar Crime

For the context of this essay, I am thinking about white-collar crime as “illegal or unethical acts that violate fiduciary responsibility of public trust, committed by an individual or organization, usually during the course of legitimate occupational activity, by persons of high or respectable social status for personal or organizational gain” (Gerald Cliff & Christian Desilets, White Collar Crime: What It Is and Where It’s Going, 28 NOTRE DAME J. OF L., ETHICS & PUB. POL’Y 481, 487). This definition provides a helpful framework when thinking about white-collar crime from the abolitionist perspective, which I will do in the next section, since it focuses on the status of the individual, which provides an interesting challenge to the abolitionist perspective that crime is rooted in socioeconomic disparity.

Reconciling the Perspectives

Given the principles of abolition outlined above, we do not often think about abolition as it applies to white-collar crime like the ones that the former President has been charged with. The abolitionist movement in the United States is tied to the fight against slavery and racism in the United States and as a result, white-collar crime is rarely at the forefront of the discussion. The indictment of the former President raises questions about whether abolition can extend to white-collar crime and if yes, what that should look like. The typical policy response to white-collar crime encourages expanding the carceral system. White-collar crime is underenforced throughout the United States. For example, the crime that the former President has been charged with is a common crime in the State of New York that is rarely prosecuted. Most policy proposals to address underenforcement focus on increasing the use of carceral institutions to punish white-collar criminals. While many see this as a good thing, since it would represent an equal application of the law, it would also require the expansion of a carceral state, which contradicts the goals of abolition. At first glance, it is difficult to apply the principles of abolition to white-collar crime. It is hard to say that white-collar crime is perpetuated by an unequal distribution of resources and that an increase in social infrastructure could mitigate harm in the long term. In the case of the Trump indictment, thinking about it from an abolitionist perspective requires considering whether there is an avenue to accountability without incarceration (even though it is quite unlikely he will be incarcerated). When I think about non-carceral punishments for white-collar crimes, I think about money sanctions or increased regulation over business dealings to deter future behavior. For Trump, we could consider occupational restrictions relating to his 2024 campaign, but I am not sure what that would look like in practice. By investing less in the carceral system, we could reinvest money into agencies to implement these non-carceral solutions.

Conclusion

The issue of Trump’s indictment and the carceral system raises a lot of questions for me. He is someone who has, in my opinion, perpetuated harm that deserves punishment. On the other hand, I do not think the criminal legal system as it stands should exist, leaving me in a gray area regarding what to do with the former President. There is no right answer, especially since abolitionism is a constantly evolving school of thought, but I think it is important to think about how it applies to instances like this. Moving towards a world without prisons means a world without prisons for everyone, including the wealthy, so we need to start to think about what that means.

The present draft takes as its premise that anyone who wants to abandon the American system of imprisonment therefore believes that no one should be in custody. I don't think that is likely to be true. Custodial confinement is a basic attribute of the State in its role as keeper of public order. There are always some people in custody, and—as Justice Rehnquist infamously held in Schall v. Martin, children are always in someone's custody.

In the 21st century, electronic means of arranging for home confinement will make house arrest an increasingly common form of custody. That will no doubt be more available to the wealthy and those with high social capital.

But there will always be reasons, including reputational penalties, involved in being held in state institutional custody rather than by surveillance robots at home. I have referred before to Dutch prisons, some of which are designed to hold dangerous, violent offenders, and some of which are intended for a general social population, none of which are designed—like our "country clubs," for the well-to-do and the reputable, but all of which are dignified, humane, and lawful in their operation. If Donald Trump could be sent to serve a sentence in Nieuw Vosselveld, I should not be in the least opposed.

So is this a dispute about things or about words? Are we trying to justify an adjective or to define the practical realities of what we would consider to be a just and achievable society? If the latter, I think the next draft should strike directly at those practical conclusions, rather than worrying about what someone else would label the position.

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