Fixing Failed Bail In The Wake of Kalief Browder

June 16, 2015 (Mimesis Law) — Back in February, Jonathan Lippman, chief judge of New York State, spoke forcefully to the powers-that-be in state government on the issue of bail. Judge Lippman urged the radical idea that New York should stop locking up thousands upon thousands of people every year who have only been charged with a crime, not convicted.

Kalief Browder did not hear Lippman’s speech. Since he spent 800 of his 1,000 days on Riker’s Island in solitary, Browder was probably confined in ‘the box,’ a popular destination for teenagers at Riker’s (recent legislation should be ending this practice). Although neither Browder nor Lippman even knew each other, their names will be inextricably linked moving forward.

Kalief Browder spent three years on Riker’s Island on a robbery charge that was eventually dismissed. His story, somewhat prophetically, was featured in an October 2014 issue of the New Yorker. Those three years of Browder’s life were laid bare to show how the American system of justice had been completely turned on its head. Process and systemic weakness stole three years of Browder’s life. On June 6, 2015, the same system stole his future as well.

Kalief Browder was found hanging out a window in his Bronx home. No one will know the full cause of his demise, but spending one-sixth of his young life in one of America’s toughest correctional facilities for a charge that was eventually dismissed had to play a huge part.

Browder’s tragedy has become national news, and his name has the potential to become synonymous with bail reform. In the current climate, there will be calls for bail reform, and a far better chance than in the past for legislative tinkering with the law.

Judge Lippman has called for changes to New York’s bail statute by imposing bail only for the truly dangerous, under a newly added public safety prong, or those who present a serious risk of flight. His proposal would mandate a presumption towards release for those facing non-violent charges. He also urges an expansion of alternative conditions of release, such as curfew and drug testing. However, judges across the state, as well as the country, have been ignoring bail statutes for as long as they have been on the books. Legislative reform is one thing. Change in the trenches is something entirely different.

Our system, which purports to stand upon a presumption of innocence, procedurally comes right out of the gate with the bail hearing, the antithesis of this central principal. The prosecutor kicks things off by telling the judge and courtroom occupants all of the evil and nasty things the defendant did in the case, along with any other misdeeds he may have committed in the past. None of this information is provided by witnesses. It usually amounts to the prosecutor reading a summary from a sheet prepared by a different prosecutor who had a brief conversation with a cop who talked to the cops who may have spoken to witnesses. It’s like the telephone game, but the loser goes to jail.

In many jurisdictions, the judge’s mind is already made up before the defense attorney even speaks. America should recognize that bail is rarely set to ensure a defendant’s “return to court.” The vast majority of the time, bail is set because the court hears an unproven story, assumes guilt, and uses bail to punish the unconvicted defendant.

Inside the justice beltway, the common excuse used to defend this judicial practice is that judges are political animals. This is true. One of the main reasons judges set bail is the ‘what if.’ It goes like this. What if I release this person and then he goes out and sets fire to an orphanage?

The ‘what if’ scenario played out exquisitely for one of New York’s good judges, Evelyn LaPorte, back in 2011. Judge LaPorte is a judge with flair. She always matches her nails, makeup, and jewelry, and the color theme is never subdued. She speaks her mind. More to the point, she hands out life lessons much more often than she hands out bail, garnering her a description of ‘lenient’ from one side and ‘fair’ from the other.

Back in November of 2011, Judge LaPorte failed to bring her crystal ball to court. If she had, she would have seen that Lamont Pride, arraigned before her on minor drug charges, was going to murder a New York City police officer before the year was out. She released him without bail in spite of the DA’s far from uncommon request of $2,500.

No one thought for another moment about Mr. Pride, that is, until he shot and killed a cop. Then all political and media hell broke loose. The New York Daily News, only comparatively credible due to sharing a market with the New York Post, wrote about how LaPorte “brushed off” the DA’s bail request in the minor drug case. Mayor Bloomberg, the only registered Republican not currently running for president, was less subtle in his critique of the sitting criminal court judge, accusing LaPorte of failing to “protect the public.”

To her credit, the good judge has maintained her steadfast belief in the presumption of innocence, and has continued to release minor alleged criminals instead of sending them off to Riker’s Island. But Mayor Bloomberg, the NYPD, and the bottom feeders of the First Amendment (Post, Daily News, 6 o’clock news, and whoever this reporter was) sounded a message loud and clear to all the other judges out there – the only way to keep your name out of the next story is to lock them all up.

While the possibility of a Lamont Pride situation lingers in many judicial minds, it is another, more present reason that has so many legally innocent people marching off to jail. Bail has become the language that judges speak to respond to the alleged crime they just heard. If it is particularly troubling, like a rape or shooting, their syntax will have a lot more zeros than if it were a shoplift or marijuana. It is a way for the judge to let the community know that they are troubled by what the defendant did, even if the law commands that we are to presume that the defendant did not.

Talking about bail reform is good, but the true heart of the matter is the judicial culture that gives judges the opportunity to announce their displeasure with crime each time a person is arraigned.

But now, the tragedy of Khalief Browder’s short life may be opening judges up to critique and revision for a completely different ‘what if’ scenario. What if you lock up an innocent man and he is destroyed in prison? Judges may finally be seeing the day when they will have to answer that question as well. Unlike Judge LaPorte, though, they will not be able to say that they were following the law.

Hardly any of us have walked a mile in judge’s shoes. However, many of us have sat in our own shoes while a judge orders a group of regular citizens to not allow anyone, their friends, their family, or the press to influence their decision as jurors. It is time for judges to also block out the press and the politics, follow the law, and move sentencing back to where it belongs – after a conviction.

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