By James Kwak
Several of my friends, some of whom I haven’t spoken with in a long time, have reached out to me over the past week to discuss what to make of last week’s election. I imagine this is happening with a lot of people.
Although I don’t have any simple answers, I do have some thoughts on what we can do in response to the prospect of Donald Trump and the Republicans controlling the entire federal government, as well as a large majority of states. But first, we need a short detour—for a bit of perspective.
Maurice Walker is a fifty-five-year-old man with schizophrenia whose only income is $530 per month in Social Security disability payments. On September 3, 2015, he was arrested by police in Calhoun, Georgia for being a “pedestrian under the influence”—something many of us have been guilty of at one time or another. If Walker had been able to come up with $160 (something most people reading this blog could do in seconds), he would have walked free. Instead, he was locked up in jail, without his medication.
The City of Calhoun has a fixed bail schedule, in which the amount of bail is set for each offense, without regard for ability to pay. People arrested for misdemeanors cannot see a judge until the next Monday court session (which would have been eleven days for Walker, because the next Monday was Labor Day). This means that, among those arrested on the same charges, poor people are locked up for several days while rich people walk out of jail. This violates the Constitution. In Tate v. Short, 401 U.S. 395 (1971), and Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court has held that the Constitution prohibits policies that systematically result in the incarceration of indigent defendants while allowing those with money to go free.
And yet it happens. Of the more than 600,000 people in jail in this country (not counting those in state or federal prison), 70% have not been convicted of anything and hence are legally innocent. Many of them are behind bars solely because they cannot afford to buy their pretrial release.
Being locked up before trial doesn’t just mean you lose a few days of freedom. Will Dobbie, Jacob Goldin, and Crystal Yang are studying the impact of pretrial incarceration on trial results and long-term economic outcomes. They find that people who are released are 27% less likely to be convicted and 28% less likely to plead guilty than people who stay in jail—which makes perfect sense, since you are more likely to plead if it’s your only way to go home and see your family. These effects are even larger for defendants charged with misdemeanors and those with no prior offenses in the previous year. In the long term, pretrial release increases by 27% the likelihood that people will be working three to four years later, with a larger effect for those who were working at the time of arrest. Again, this is obvious: If you miss work because you’re in jail, you could lose your job; and if you plead guilty to get out of jail, the conviction makes it harder for you to find work.
(For those worried about sample selection issues—that is, people who make bail are different from those who don’t—this study takes advantage of the fact that bail judges are quasi-randomly assigned in Philadelphia and Miami. The relative harshness of the judge is the instrument for pre-trial release.)
Maurice Walker was lucky. He got a lawyer. In fact, he got some of the best: Sarah Geraghty and Ryan Primerano of the Southern Center for Human Rights, and Alec Karakatsanis of Equal Justice Under Law. Walker was arrested on a Thursday evening. The next Tuesday, his lawyers filed a class action lawsuit against the City of Calhoun; Walker was released the next day. On January 28, 2016, a federal judge sided with Walker:
Any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause. . . .
The bail policy under which Plaintiff was arrested clearly is unconstitutional.
What does Maurice Walker have to do with last week’s election?
The sad truth is that many people in the United States already had very tough lives before November 8. Besides Walker and the thousands of people in jail because they are poor, they include Cleopatra Harrison, a domestic violence victim who was threatened with jail because she could not pay a $150 “victim assessment fee” assessed by a court; A.J. and hundreds of other children who face criminal charges in juvenile court without being represented by a lawyer, in violation of the right to counsel; Aron Tuff, Wilmart Martin, Andre Mims, Jeremiah Johnson, and other people sentenced in Georgia to life in prison without the possibility of parole for nonviolent drug offenses (all of whom are African-American); and Tim Foster, who was sentenced to death by an all-white jury after the prosecutor struck every African-American from the jury pool.
There is an ocean of injustice out there. Many of the people harmed by it are poor, minorities, immigrants, or some combination of the above. I only know about the examples above because I’m on the board of the Southern Center for Human Rights, which took all of those cases and was able to help all of those clients. There is no doubt much, much more injustice of which I am unaware.
The perspective is this: Things didn’t suddenly go from wonderful to awful on Tuesday night last week. For many people, they were already pretty bad. A Trump presidency will no doubt make things worse. There will be more hate crime; more deportations of people whose only crime is wanting to work hard and make a better life for their children; more and higher hurdles for women who want an abortion; more people without health insurance; more gun violence; and more hungry children unable to rely on food stamps.
These are all problems that our country had on the morning of November 8, and there are already organizations dedicated to helping the people who face them. As I said, I’m on the board of the Southern Center for Human Rights. We had a board meeting and benefit dinner in Washington last week. And while no one was happy about the national election, it didn’t change what the organization does; it just meant that the struggle will be that much harder for the next four years.
So if you want to “do something” about President Trump, the first thing you can do is donate money to some of the organizations that actively protect people’s civil and human rights. If you’re inspired to give money to the Southern Center, I can assure you that it won’t be wasted; we have some of the best lawyers anywhere, working as hard as they can for remarkably little money. (Today, November 17 is Georgia Gives Day, too, if you prefer to give that way.) But there are many other worthwhile groups out there: the NAACP Legal Defense Fund, the ACLU (perhaps particularly important given Trump’s attempts to intimidate the media), Planned Parenthood, or your local food bank, soup kitchen, or homeless shelter, among many others. At the end of the day, ordinary people will be the victims of the Trump administration, and they will need your help.
That’s the point I wanted to make today, but I imagine that’s not where you expected this post to end. So I’ll add a few words about the other thing that we need to do: take back at least partial control of our government(s). That is a much more difficult issue. You might say that Hillary Clinton lost by only 107,000 votes; by that measure, we only need a slightly better candidate, a slightly better message, or slightly better luck to win in 2020.
More realistically, however, with the small-state bias of the Senate (and the forbidding 2018 electoral map), gerrymandering in the House, and overwhelming Republican dominance of state governments, Clinton’s loss reveals how weak the Democrats already were. This is what I wrote back in June:
Republicans are apoplectic at the idea that Hillary Clinton could appoint the deciding justice to the Supreme Court, but the smart ones realize that she will be able to accomplish little else; even if by some miracle Democrats retake the House, Republican unity will suffice to block anything in the Senate. Democrats, by contrast, are terrified because a Republican president means that they will get virtually everything . . . : not just the Supreme Court, but a flat tax, new abortion restrictions, Medicaid block grants, repeal of Dodd-Frank, repeal of Obamacare, Medicare vouchers, and who knows what else.
The Republicans are dominant not just because of Trump, but because of the decades of work that preceded him: promoting the ideology, cultivating the funders, motivating the base, building the media empire, stocking the judiciary, weakening unions, undermining campaign finance rules, buying state elections, redrawing districts, and suppressing the vote. Yes, Trump was an unlikely leader to take them over the top. (And yes, he is popular among white supremacists.) But even if he hadn’t, the GOP would still be just one election away from a sweep of the White House and Congress.
There is a raging debate right now over the identity of the Democratic Party. I don’t to argue the specifics of that debate right now. But if we want to compete, we need more than a new, focus-grouped brand that can win 51% of the popular vote in a general election. We need an ideology that can mobilize millions of new voters and motivate thousands of people to run in races for school board, town council, state assembly, and state senate, all over the country. We need a long-term political movement, not a quadrennial scramble to demonize the other guy just enough so voters pick our guy.
I don’t know how to create that movement. So all I can recommend, on a personal level, is that you find people whom you believe in—on all levels of politics—give them money or volunteer for their campaigns, and throw your little bit of weight into pushing the party in what you think is the right direction. (Or, if you’re up for it, run for office yourself.) It’s not a great answer, but there is no magic bullet.