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Jail Cell

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For the three years Kalief Browder sat in New York’s Rikers Island, he probably wondered what the difference would have been if his family could have posted the $3,000 bail that would have gotten him out of the jail and back on the street to await trial.

Instead he languished there, just a couple football fields away from LaGuardia Airport, experiencing the pre-trial punishment that inmates endure — for being accused of stealing a backpack. The then 16-year-old insisted he was innocent, that there was no reason for him to be locked up.

Ultimately he did get out, he tried to assume a normal life. Work, family, friends. But the malnourishment, the fights with other inmates, the beatings by guards (which were caught on video), the nightmarish conditions he lived in were etched in his mind.

Last weekend, the demons still inside got to be too much. He had tried to commit suicide before, but was unsuccessful. This time, his internal struggles led him to tie an air conditioner cord around his neck and hang himself.

He was only 22.

Browder’s death and ordeal marks a problem in the criminal justice system that is nowhere near unique to him. It serves as a stark indication that the difference between the ability of an accused person to get out of jail and prepare for a trial, and someone who has to sit there and hope for adequate defense, is the ability to make bail.

Browder’s mother didn’t have the $3,000 that would have gotten him out. But insisting that he did nothing wrong, he also did not take the plea bargain either, so the only other option was for him to stay at Rikers Island until his turn in front of a judge came up.

In a place like New York City, it’s supposed to take no longer than six months for a felony. Browder went to jail in May 2010 and his case was dropped in May of 2013. His Sixth Amendment right to a speedy trial vanished.

All because he was poor and believed he was innocent until proven guilty.

“The biggest source of inequality in the system is bail,” Rebecca Kavanagh, a Legal Aid attorney in New York said a day after she attended a vigil for Browder. “It means that for poor people your chances of being released, of being able to make bail, are very slim.”

Kavanagh noted the difference between other countries, where the bail system is not as stringent for misdemeanors and low-level felonies and people can be released pending a court appearance, as opposed to the United States, where bail is a question of being able to pay to get out and launch a defense.

“(Browder’s) family could not make that bail for three years and it has to give you pause for thought, because it just shows that it’s a whole lot of money for some people and even going to a bail bondsman where typically you might put up 10%, they couldn’t pay that money,” Kavanagh continued.

“The reason that bail is a huge problem, obviously then, is because people are incarcerated before they’ve ever been convicted of anything. So he’s incarcerated for three years and doesn’t even go to trial and then his case is just dismissed. That happens in so many instances.”

Now people in Browder’s situation do have an option that allows them to avoid staying in jail, exposing themselves to hellish conditions and violence, having to lose their jobs, losing their place in the shelter system if they are homeless, or having their children taken away and put in foster care: plead guilty.

“Most cases in the criminal justice system don’t go to trial,” said Kavanagh. “97% of misdemeanors and probably 90% of felonies end up in plea bargains. If someone says ‘I’m going to go to trial,’ it’s going to take a long time. And even though you have the right to a speedy trial, the way speedy trial time is calculated is really disingenuous because if there are no judges available to hear a case, then that time doesn’t count towards your speedy trial clock.”

But it’s a Catch-22.

If you do take the plea, that means you are telling a judge you did it, whether you are innocent or not. That means the judge can release you with time-served, or a brief sentence, but you now are a convicted criminal. In this country, with that on your record, you may be openly, legally and brazenly discriminated against by any number of institutions and potential employers, and lose your right to vote for a significant amount of time in most states.

So looking at it from Browder’s standpoint — that of a young man in high school with his future ahead of him at the time of his arrest — of course he would want to fight the charges.

John Oliver, host of HBO’s Last Week Tonight, pointed out how deep-seated the problem is. Citing a study of the New Jersey jail system, he observed that almost 40 percent of the people locked up there are only in jail because they couldn’t make bail while they waited for their trial to come up.

Meanwhile, if you’ll remember Khloe Kardashian — who is famous for…well, I don’t know why she’s famous — got arrested on a DUI charge and spent all of three hours in jail in 2008, because the judge felt the jails were too overcrowded. No bail set.

Heaven forbid we put someone with her much-needed talents behind bars just because she potentially put lives at risk, rather than make room for guys like Kalief Browder, who was arrested because someone said — but never proved — he stole a backpack.

But there are alternatives that can work.

Timothy Murray, executive director of the Pretrial Justice Institute, told State Legislatures magazine that use of nonfinancial release options have had positive results:

Several years ago the National Institute of Justice, (NIJ), the research arm of the Justice Department, conducted a controlled experiment testing the efficacy of supervised pretrial release. Simply put, supervised pretrial release accountably monitors pretrial defendants in the community using an array of supervision conditions designed to minimize failure to appear in court and re-offending. NIJ’s experiment showed conclusively that randomly assigned defendants who were placed into supervision had better outcomes than those who were released on financial bonds.

If Browder was given the option of being released on condition of reporting to the court, since he was accused of a non-violent crime, rather than having to literally fight his way through the system, maybe he’d still be alive.

There’s no real telling how many Kalief Browders of all ages, races, and genders are sitting in this country’s jails simply because they can’t make bail. How many jobs lost. How many lives broken simply because being arrested leads to punishment before a trial even comes up.

If lawmakers open their eyes, they’ll get serious about changing who is forced to pay bail, because the difference between freedom and incarceration is often not a jury’s vote, but someone’s ability to write a check.

Madison J. Gray is a Brooklyn, N.Y.-based multimedia journalist specializing in urban issues and criminal justice. He writes for NewsOne on the subject of Black males in America. Follow him on Twitter:@madisonjgray


Bail Equals Inequality: The Kalief Browder Case & Why Freedom Costs Money  was originally published on