Kalief Browder was the first person I thought of when former Trump campaign chief Paul Manafort walked free from a federal courthouse Monday afternoon after pleading “not guilty” to federal charges that could send him to prison for the rest of his life. Browder, remember, got no such mercy in 2010 from a New York judge, who initially demanded that the 16-year-old, or his family, come up with $3,000 for bail or bond in a case involving an allegedly stolen backpack.

As the world now knows, Browder and his family couldn’t pay the tab in a case that was complicated by his own probation violation. Still, no defense attorney rescued him, no prosecutor, judge, or jailer looked at the case and was moved to correct a manifest injustice. No one came on television the night he was put into a cell to talk about the particulars of his case or cause. And so the young man ended up tortured in the Rikers Island jail, peppered with long stints in solitary confinement, until he was released, broken, back into the world. He didn’t make it. In 2015, at the age of 22, he committed suicide, another in an endless stream of young Americans whose spirit was crushed by the injustice of our justice system.

Kalief Browder Courtesy of Spike TV

Both Manafort and Browder were supposed to be presumed innocent under the law. But I’ve covered enough criminal law over the past 20 years, covered enough due process violations and perp walks, to realize that the depth and breadth of the presumption of innocence, like so many other hoary standards, depends almost entirely on who the defendant and judge are, and on what the alleged crime may be. Manafort, charged with “conspiracy against the United States” and not with some petty burglary charge, was able to return home Monday on house arrest, a $10 million bond, and the surrender of his passport.

That bond, by the way, didn’t require Manafort to post any money upfront, another way in which he was treated differently from Browder, who was required to pay immediately. Instead, the bail condition Manafort received is what’s commonly referred to as an “unsecured bond” or “appearance bond,” which means it requires no money down from the charged defendant. Instead, the defendant typically provides a written promise that if he does not show back up for court he will pay a specific amount of money.

That $10 million dollar bond, by the way, didn’t require Manafort to post any money upfront.

Compelling research tells us that unsecured bonds are as effective as bonds that require an upfront payment, and while they are available as a release option to judges in most states and local courts, they are rarely used. For federal defendants like Manafort, however, unsecured bonds are quite common, accounting for 39 percent of releases in federal courts between 2008 and 2010. A bond like that is an option available to judges in New York courts, where Browder’s case was heard, but like most states, New York judges rarely release people using this option.

That’s what the presumption of innocence looks like to defendants like Paul Manafort. It looks pretty good, right? Who among us wouldn’t want to come home from federal court after being charged with a series of felonies? But to defendants like Browder and to hundreds of thousands of other Americans who languish in pretrial detention today, the presumption seems to turn on its head; whether or not they are accused of violent crimes, their status morphs into something akin to a presumption of guilt, determined in most cases by the argument of a busy prosecutor and a hassled and harried judge.

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Do I think Manafort represents a public safety threat to his community? No, not unless you consider allegations of political and economic corruption a public safety threat. Do I consider his release Monday (and the release of his co-defendant Rick Gates) more evidence of the economic inequities of our justice system? You bet. Do I think the nation would be no worse off today if those two defendants had to spend a few nights in federal detention? Yes. At least it would help undermine the impression that there are two systems of justice; one for the rich and powerful, the other for the rest of us.

There is another component to the unequal treatment that merits mention here and now. Unless federal investigators have invented the documents they say link Manafort and Gates to money laundering and banking fraud, the case against the two men seems strong. Robert Mueller’s case does not rely on a confession coerced by detectives. It does not rely on shaky eyewitness testimony or a jailhouse informant who has been promised leniency in exchange for testimony (at least as far as we know). There is no junk science that the feds will need to rely on to try to convince jurors that these defendants illegally tried to hide the shady money they allegedly earned. The chances that Manafort and Gates will be acquitted, in other words, are slim.

Compare that to the countless cases in which men and women are held for long stretches in pretrial detention based only on the flimsiest evidence, either because they cannot afford a decent lawyer to get them out or because the prosecutor and judge in their case are wed to an assembly-line system of pretrial detention procedures that rewards efficiency at the expense of accuracy. Think of all the days in pretrial confinement for innocent people, or even guilty people, who have to wait until a judge clears a court date, or the public defender and prosecutor are free to spend time.

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No one is suggesting that Robert Mueller, the special counsel, is soft on crime or is providing his two new defendants with the courtesies they have received because he believes in unequal justice for all. He is instead manipulating this narrative like a maestro in an effort to achieve his legal goals without complicating his precarious political position. His kid-gloves treatment of Manafort and Gates-- the early warning about the charges, the invitation to surrender, etc.-- all are part of the theater that typically accompanies any politically-charged criminal case, especially one that is going to unfold in Washington, D.C., amid the furies of the Trump administration.

But even if that explains why Manafort and Gates were treated so well, it does not help us answer the question of why Browder and so many others are not so lucky. Had the entire nation been riveted to the Browder case in 2010, had there been cameras outside the courtroom when the stolen-backpack case came before his judge, I suspect Browder never would have had to languish in isolated detention at Rikers for all those months regardless of the fact that he had violated his parole. But the presumption of innocence should not depend on media coverage or, as a growing number of bail reformers note, on the economic status of the defendant.

The failure of our bail system is directly tied, in my view, to the failure of judges and prosecutors to honor the concept of the presumption of innocence and vice versa. It’s all the other side of the same coin. That coin flipped one way for Kalief Browder and it’s flipped another way for Paul Manafort, two notable criminal defendants whose treatment in our justice system highlight an unacceptable gulf that always has existed and likely always will.

Andrew Cohen Andrew Cohen, a legal analyst and commentator, is a fellow at the Brennan Center for Justice and a senior editor at the Marshall Project.

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