The U.S. Supreme Court’s ruling on former President Donald Trump’s criminal immunity captures a stark reality: In one of the world’s most carceral countries, where Black men and people of color are disproportionately punished, a powerful position held almost exclusively by White men is immune from criminal prosecution (if the acts were done as part of official presidential authority).
In a 6-3 vote on Monday split along ideological lines, the court decided that Trump can claim absolute immunity from criminal prosecution for “official acts” that are part of a president’s “core constitutional powers.” This is a critical decision because it will shape whether Trump can be held responsible in the federal election interference case against him.
“The president enjoys no immunity for his unofficial acts, and not everything the president does is official. The president is not above the law,” Chief Justice John Roberts wrote in the majority opinion. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.”
The all-women liberal bloc of the Supreme Court strongly disagreed.
“If the structural consequences of today’s paradigm shift mark a step in the wrong direction, then the practical consequences are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government,” Justice Ketanji Brown Jackson wrote in a solo dissent.
Another dissent authored by Sonia Sotomayor and joined by Jackson and Justice Elena Kagan warned that the majority “has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.”
“If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop,” she continued.
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The justices did not rule on whether Trump’s behavior leading up to and following the 2020 presidential election falls under his official executive authority. Instead, they sent the issue back to lower courts.
Neither Sotomayor nor Jackson specifically mentioned race, gender or the inequitable reality of mass incarceration, but at the heart of their objections is fear of a country with a criminal justice system that does not apply to its most powerful office, the presidency — a position where 44 of 45 people in this role have been White men. The court’s decision on Trump also highlights a broader conversation about the ways people with power and resources are treated more favorably by the criminal legal system.
The United States has nearly two million people detained across its state or federal prisons and local jails. About 35 percent of those incarcerated people are Black men, though they make up about 13 percent of the total U.S. population. Data indicates that since 2000 the country has seen a notable decline in the incarceration rate for Black men, but as of 2021 it was around 1,800 incarcerated per 100,000 people.
“If Black men in the U.S. were their own country, they would have an incarceration rate twice as high as any U.S. state or almost any independent country,” said Wanda Bertram, communications strategist with the Prison Policy Initiative, a nonpartisan research and policy organization. (The Prison Policy Initiative has not made a statement about the specifics of the Supreme Court’s decision of Trump’s immunity.)
In one 2021 report, researchers at Columbia University found that 26.8 percent of Black men, 16.2 percent of Latino men and 3 percent of White men in New York City have been jailed by age 38. And young Black men are about 50 percent more likely to be detained without a conviction than White defendants, according to a 2019 report by the Prison Policy Initiative.
One popular response to mass incarceration criticism is the claim that Black people commit a majority of crimes in the country. Bertram noted flaws in how crime data is reported to government agencies like the FBI. People should also work to understand how the legal system categorizes and punishes certain behaviors over others, she added.
This can include low-level offenses like jaywalking, loitering or breaking state or city curfews. People can be jailed for unpaid debts like a ticket, or they may be kept on probation longer for their inability to pay off fines associated with their arrest, said Bree Spencer, senior program director for justice reform at the Leadership Conference on Civil and Human Rights. People are also criminalized for circumstances that advocates like Spencer say should be handled by social safety net programs or public health services.
For example, a person experiencing homelessness, drug addiction or mental illness is more likely to deal with periods of incarceration. On June 28, the Supreme Court ruled that homeless people can be prohibited from using blankets, pillows, or cardboard boxes for protection while sleeping outdoors, meaning they could receive jail time if they do.
Crime policies targeting low-income people intersect with Black, brown and Indigenous communities, which tend to have fewer resources to help during the legal process and are confronted by more government surveillance in the form of policing or child protective services.
“We see racism in the crimes we choose to hold people accountable for, and in how we saturate certain areas and neighborhoods with resources that help people thrive, versus how we saturate certain areas with police,” Spencer said.
Still, advocates say they see glimmers of hope. Recent policies around the country aimed at eliminating cash bail, expunging criminal records or releasing incarcerated people early address some of the drivers of incarceration.
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Other programs seek to decrease the amount of contact that law enforcement officials have with the public. Denver; Durham, North Carolina; and Albuquerque, New Mexico are a few of the cities that have developed unarmed community responder teams to address public safety issues. In 2022, Albuquerque’s Community Safety department addressed more than 21,000 calls that were diverted from police. The approach in Albuquerque, where the majority of residents are non-White, came as a result of a Justice Department investigation that revealed a pattern of violent response by police officers that routinely violated people’s constitutional rights.
“I think a big part of the answer lies in more people being able to conceptualize something outside of what I’m always calling the ‘police-chaos binary,’” Spencer said. “I think the reality is that not only are there ways to consider an affirmative safety agenda that’s better for everyone, but there are also places doing it and doing it really successfully right now.”
But mainstream political discussions about reform can be inconsistent and short term, advocates told The 19th. Last year, they spoke with The 19th about a resurgence in tough-on-crime rhetoric from public officials calling for more harsh action.
Trump, both during his one term as president and as a 2024 presidential candidate, has championed a motto of “law and order.” In its ruling this week, the Supreme Court offered Trump immunity protections that may shield him against his own criminal charges. If elected in 2024, however, Trump appears poised to take a strict stance in his criminal justice policy, which would have a disproportionate impact on Black men who already bear the brunt of mass incarceration.
Trump’s campaign website promises that he will “deliver record funding to hire and retrain police officers, strengthen qualified immunity and other protections for police officers, increase penalties for assaults on law enforcement, put violent offenders and career criminals behind bars, and surge federal prosecutors and the National Guard into high-crime communities.”
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