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The fallacy of Trump's 'two-tiered justice system' rant

To hear the two-tiered nature of the justice system enter national discourse is in fact exciting for many — but Trump’s framing of the issue is all wrong.


In the wake of former President Donald Trump being charged with breaching national security on 37 felony counts of holding unauthorized national defense documents, many of us have heard Trump, along with some of his allies and supporters, depict our justice system as being “two tiered.” In a video for his 2024 presidential campaign, Trump stated: “There are two standards of justice in our country: One for people like you and me, and one for the corrupt political class, of which there are many.” (Trump has denied all charges.)

Trump makes an important point here about how broken our justice system is — just not for the reasons he lays out.

The thing is, Trump makes an important point here about how broken our justice system is — just not for the reasons he lays out. For the 80 million people convicted of crimes and roughly 10 million who have been incarcerated, who are disproportionately Black, brown, queer or Indigenous, many over-criminalized, over-sentenced and over-incarcerated, to hear the two-tiered nature of the justice system enter the national discourse is in part exciting. Unfortunately, any excitement is overshadowed by the former president’s audacity to name the Republicans as the targeted tier, and Democrats as the untargeted.


I know thousands of pretrial detainees sitting at Rikers because they can’t make bail who I am confident would disagree with his position on privilege. As a formerly incarcerated person myself, I am mortified watching him make these statements while his privilege as a wealthy white man spares him the indignities that ordinary individuals face in the justice system: no mug shot, no seizure of his passport, and no restrictions on his movement.

Our community knows firsthand that there are two systems of justice in this country — but they are not defined by political affiliation. Our prisons disproportionately target Black, Indigenous, and people of color and LGBTQ individuals who are marginalized, impoverished and cannot afford attorneys. As author and activist Bryan Stevenson puts it,

“We have a system of justice that treats you better if you’re rich and guilty than if you’re poor and innocent.” There is no universe in which you, Donald Trump, are a victim of this system. - Author and aActivist Bryan Stevenson

If you need evidence of our real two systems of justice, just look at the stark differences in sentencing. Trump’s accountant Alan Weisselberg served 99 days in Rikers for tax fraud while thousands of Black men within the same walls remain there for longer just awaiting trial. In fact, 9 out of 10 detainees at Rikers Island, which is made up of 90.1% people of color, have not yet been convicted of a crime.


Black Panther activists have spent over four or five decades incarcerated, aging and dying behind bars or in solitary confinement, while the Proud Boys and Oath Keepers of the Jan. 6 insurrection, who destroyed property at the Capitol and threatened the life of the vice president, were almost all given sentences of just a few years.


Consider Kalief Browder, the 16-year-old who was detained for three years and spent two in solitary confinement, without a trial, all for an alleged theft of a backpack in a case that was later dismissed. Shortly after being released from prison, he died by suicide at age 22. It is not just outrageous, but offensive and sickeningly ironic that Trump masquerades as a victim of the system while benefiting from more leniency than many of us will ever encounter.


If only Trump and the media could draw the same compassion, attention and concern for the millions of incarcerated individuals spending years behind bars for actions that pose not nearly as much of a threat as Trump's — many of whom have had their cases overturned, yet remain in prison.

We, the incarcerated and convicted, are eager to move toward a world with shorter sentencing and alternatives to mass incarceration, but not only for the Oath Keepers, Proud Boys and others who serve Trump. The rest of us deserve to be taken along, too. -Evie Litwok

Evie Litwok (she/her) is a witness to mass incarceration. As the Founder and Executive Director of Witness to Mass Incarceration (Witness), her experiences with the judicial and correctional systems serve as the inspiration behind Witness’ mission, which operates to place formerly incarcerated women and LGBTQ+ people at the forefront of the movement to end mass incarceration, restore safety, dignity and respect in correctional facilities and reduce barriers to successful reentry.

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