Rights of Miscreant Thief Supersede Public Protection - The Elimination of Cash Bail

[Ruken]

Reforms that don’t put kids in jail for three years waiting trial for alleged petty theft are probably something I could get behind. And maybe they’re doing something about that too. But I see that as a separate issue from just elimnating cash bail.

[Translucent_Daydream]

@Max_S

Before I start I want to make totally clear that I believe Mr. Browder’s case was a tragedy and stain on the American criminal justice system. I also agree that cash bail reform is necessary and urgent. But I agree in part with JBGUSA that Mr. Browder is not a perfect symbol for cash bail reform. Nevertheless we do need cash bail reform and I wish America would tackle that without misleading the general public by elevating Mr. Browder to martyrdom.

JBGUSA presents a reasonable critique of The New York Times’s article. This would have pushed me to research the questions, but I don’t see it as unreasonable for JBGUSA to ask The Straight Dope Message Boards to fight his ignorance.

I did do a little research and found a longform article describing Mr. Browder’s case in The New Yorker, written after his release but before his suicide[1]. This article doesn’t touch on recent developments in cash bail reform but it does answer most of the questions. Lots of other articles point back to this one, including the New York Times article cited in the original post.

Mr. Browder said he was put in solitary confinement at least three times, each after a fight. The first trip was two weeks, the second for ten months, and then a third trip from the end of 2011 until his release on May 30, 2013. The article implied that he incurred minor infractions during his confinement which made for longer stays. Mr. Browder also alleges a violent atmosphere among the correction officers, who beat inmates and threatened them with solitary confinement. The New Yorker found video evidence of inmates and officers abusing Mr. Browder[2], both of which probably contributed to his time in solitary confinement. Unfortunately he committed suicide two months later so I assume the internal investigations were closed as moot. It’s within reason to say his continued solitary confinement was unjustified and a travesty of justice nonetheless.

Even before Mr. Browder’s case became national news, New Yorkers saw a problem with solitary confinement, specifically confinement of adolescents at Rikers[3]. I mentioned in post #25 Mr. Browder’s case had a direct influence on curtailing this practice. I hope this answers point 1.

According to The New Yorker, Mr. Browder “had already had a few run-ins with the police, including an incident eight months earlier, when an officer reported seeing him take a delivery truck for a joyride and crash into a parked car.” He pled guilty, was put on probation, and given “youthful offender” status. Eight months later he and a friend were arrested for allegedly stealing a backpack. When the judge saw this kid already on probation charged with robbery, grand larceny, and assault, he set the bail at $3,000. Mr. Browder’s alleged accomplice was released. I must give the judge the benefit of the doubt because the court records are sealed. This is the best answer I can give for points 2 and 3.

With a $3,000 bail his family couldn’t afford, Mr. Browder waited in prison from his arrest May 15, 2010 until the grand jury indicted him on July 28, 2010. Two of those weeks were spent in solitary confinement. It is not apparent that his court-appointed lawyer filed any motions to reduce or waive bail before the grand jury indictment. Neither do I see that Mr. Browder testified in person before the grand jury - he was interviewed by police. The grand jury indicted him nonetheless and, as I am sure you are aware, grand jury proceedings are secret. But once the grand jury indicted him:

Mr. Browder’s lawyer would later make bail applications, but “was unsuccessful because of the violation of probation.” This should answer point 4.

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The New York Times article cited in the original post[4] reads: Mr. Browder “spent three years on Rikers Island because his family could not raise $3,000”, or “Unable to pay his bail, he spent three years in jail, two of them in solitary confinement, as his trial date was repeatedly postponed”. Shame on the New York Times for propogating a misleading charactarization of Mr. Browder’s case, even if for a righteous cause. Shame on “left-wing politicians” who make him into “a symbol of the problems inherent in the bail system” (same cite). He did spend three years in jail because his trial date was repeatedly postponed, accumulatively two years of which were spent in solitary confinement; however, the high bail only kept him in jail for the first month. After the first month Mr. Browder wasn’t allowed to leave prison because he was accused of violating parole.

So Mr. Browder’s case really is a travesty of justice, and there really are inherent problems in the bail system. But Mr. Browder is not properly a martyr for cash bail reform.

The argument can be made that it is necessary and pragmatic to elevate Mr. Browder into a martyr, to garner popular support for meaningful cash bail reform. I dearly hope this is not true, that our country can achieve meaningful reform without misleading the public. Perhaps the pessamists are right, and this is largely a moral argument, but I still expect better from The New York Times.

All of that being said, I have no idea what point JBGUSA is trying to make comparing Kalief Browder with Trump or Manafort. Neither do I think the thread title is appropriate, given that Mr. Browder was never tried or convicted for stealing the backpack he does not deserve to be labelled a “miscreant thief”. Unless JBGUSA is referring to Mr. Browder’s prior guilty plea, which would be disingenuous and unlikely since JBGUSA asked twice if he has a history in the criminal justice system.

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I agree with both of you, and if the New York Bar hasn’t issued guidance along these lines I think they should. On the other hand, it is much harder to police ethical violations than to actually require a speedy trial, but then I believe there are problems with discovery and funding that would need to be addressed first.

~Max

[1] Gonnerman, J. (October 6, 2014). Before The Law. The New Yorker. Retrieved from Three Years on Rikers Without Trial | The New Yorker
[2] Gonnerman, J. (April 23, 2015). Exclusive Video: Violence Inside Rikers. The New Yorker. Retrieved from Exclusive Video: Violence Inside Rikers - The New Yorker | The New Yorker
[3] Casella, J. & Ridgeway, J. (October 2, 2012). Unlock The Box: The Fight Against Solitary Confinement in New York. Retrieved from https://www.thenation.com/article/unlock-box-fight-against-solitary-confinement-new-york/
[4] McKinley, J & Southall, A. (March 29, 2019). Kalief Browder’s Suicide Inspired a Push to End Cash Bail. Now Lawmakers Have a Deal. The New York Times. Retrieved from https://www.nytimes.com/2019/03/29/nyregion/kalief-browder-cash-bail-reform.html

hijack Posts and posters like this are why I still read the SDMB. /hijack

[doreen]

@asahi

So noted - now I’m wondering why the NY Times article, which I am unable to read due to paywall restrictions, is linking cash bail to his suicide. It seems that the harsh prison conditions in the Riker’s facility are to blame more than the inability to raise money for bail, which was denied as you point out.

Because reporters ( and everyone else ) don’t really understand the “ins and outs” of the criminal justice system. Earlier in this thread someone said

After the first month Mr. Browder wasn’t allowed to leave prison because he was accused of violating parole.

A previous sentence in the same post referred to Browder violating probation. They aren’t the same thing in NY - but in many other states they are either the same thing or supervised by the same agency. The judge did not have to incarcerate him as a result of his probation violation, but that’s what typically happens when a probationer incurs a new arrest. He very possibly could have settled the violation of parole case in less than three years- but with a new pending felony charge, he had little chance of getting anything that didn’t involve a prison sentence and may have been putting off that case until the new felony case was completed.

In any event, cash bail had absolutely nothing to do with Browder’s suicide. Because even if he was released on his own recognizance at the arraignment , he would have ended up back in jail when the violation of probation was filed.

[Quartz]

I’m sorry, but I don’t see any relationship between the lack of bail and the guy’s death. He was initially incarcerated because of lack of bail. IMHO that’s fair enough. But after that is a litany of failure of New York’s legal system. Did nobody file a writ of habeas corpus? Why did the judges repeatedly allow the delay of the case? Did no one remember that ‘justice delayed is justice denied’ and that it applies to both sides?

[Quartz]

@Max_S

Before I start…

Brilliant post!

[Max_S]

@Quartz

I’m sorry, but I don’t see any relationship between the lack of bail and the guy’s death. He was initially incarcerated because of lack of bail. IMHO that’s fair enough. But after that is a litany of failure of New York’s legal system. Did nobody file a writ of habeas corpus? Why did the judges repeatedly allow the delay of the case? Did no one remember that ‘justice delayed is justice denied’ and that it applies to both sides?

I believe the public defender tried but was rebuffed as the court only considers time requested by the prosecution. It didn’t take into consideration the fact that when prosecution asked for one day, the next hearing was set weeks or months in the future. This practice might have been struck down as unconstitutional by the lawsuit brought after Mr. Browder’s release, but Mr. Browder committed suicide.

[Irishman]

@snoe

Kim Foxx provides an example of how prosecutors are perversely incentivized to play this game or take a bunch of shit for making the right call: https://www.chicagotribune.com/news/opinion/commentary/ct-perspec-kim-foxx-jussie-smollett-20190329-story,amp.html?__twitter_impression=true

@snoe

Kim Foxx’s op-edabout her decision w/r/t Jussie Smollett is relevant here. I’m in no significant way sympathetic to Smollett, given what I know of the facts of his case (and I only know what’s been in the media I’ve seen). But Foxx’s argument against charging him really struck me as pretty convincing. He’s probably not a threat to public safety, and any future violations of the kind he probably committed aren’t likely to harm anyone either. Focusing resources on more dangerous offenders is a good call.

I disagree. I accept the judgement that it isn’t the best use of resources to lock him up, and would have supported some no jail time deal, but to completely drop the charges and seal the records and not even require him to concede the charges is too far. That case doesn’t directly apply to the question of bail money as incentive for plea deal, because money wasn’t an issue for Jussie.

[Drum_God]

Just dropping in to say that HBO has a mini series called The Night Of… that touches on some of these same issues. It tells the fictional story of a young man who is arrested in NYC for murder. The series is available on HBOGo.