How All New Yorkers Killed Kalief Browder

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In his short eulogy of Kalief Browder, The Atlantic’s Ta-Nehisi Coates wrote that the teenager’s death — he hanged himself with an air-conditioner cord in his home in the Bronx, after three years of torment by the legal system — “must necessarily be laid at the feet of the citizens of New York, because it was done by our servants, and it was done in our name.”

That’s more than just rhetorical flourish. Because, in the aggregate, everything Browder endured — from the moment he was wrongly accused for stealing a backpack to his slow death at Rikers Island — was sanctioned by laws, customs, and policies duly enacted or tolerated by New York, its policymakers, and the citizens who pay for it all.

In addressing Browder’s death, Mayor Bill de Blasio this week attempted to grapple with that reality, but he only focused on two areas: reforming the bail system and Rikers Island. And he did so with the usual platitudes. He said Browder “did not die in vain,” that his case was an “eye-opener,” and that all of it was “very, very painful.” And everyone else has followed suit — there’s no shortage of editorials and think pieces calling for bail reform and fixing Rikers.

Those two things are the most obvious because it’s easy to theorize that Browder would’ve never taken his own life had he been allowed to go home the very night of his misguided arrest. Or at least if Rikers weren’t such a god-awful place for a teenager to spend more than 1,000 days without a trial. Fix one or both, and Browder’s tragedy will never happen again.

But these policy proposals predate Browder by many years. And to an extent, those problems have already been fixed. Rikers, for all its troubles, vowed to no longer place teens in solitary confinement. And bail “reform” is a confusing misnomer: The bail statute in New York, as written, is already one of the most progressive in the nation — unlike other states or the federal government, it does not require judges to weigh the likelihood of a person reoffending or whether the person poses a “danger” to the community. Most notably, the law already gives judges an array of choices other than bail to secure a person’s return to court. That nobody follows the law is another matter.

Which brings us back to the laws, customs, and policies of New York as chief enablers of Browder’s death. In her New Yorker profile of Browder, Jennifer Gonnerman concluded that it was the courts that took away three years of his life. Zero in on the courts and everything they represent — judges, prosecutors, defense attorneys, procedures, calendars, the law — and de Blasio’s words suddenly ring hollow. Because at every step of Browder’s case, with every appearance and continuance, the courts failed him miserably. And they will fail others like him because that’s how New Yorkers have set them up to work.

On the matter of the judges: The Bronx defenders have been calling for years for judges to offer defendants the options the statute gives them. But their efforts have mostly fallen on deaf ears. Why the reluctance to follow the law is a mystery — it’s been around since the ‘70s — but here are two theories: backlogs and fear. Problems with backlogs and crowded dockets are insanely real. Case-by-case bail determinations take time, and judges often just want to keep the wheels turning. But just as real is the political pressure on the judge to play it safe rather than risking the embarrassment of releasing someone who, for whatever reason, might do something that will bring the judge disrepute in the eyes of the public. Those cases are few and far between, but they happen. No jurist wants his face splashed on the front page of the New York Post.

Browder posed no risk of flight — he was already under probation supervision — but the judge imposed the $3,000 bail anyway. Too poor to afford it — even $1,000 is beyond the means of many New Yorkers — Browder’s slow descent into despair and doom began.

The lawyers also played key roles in the tragedy. On the one hand were the prosecutors. Their duty, the Supreme Court has said, is not to win cases but to do justice. But none of that applied in the Bronx. Neither did the constitutional right to a speedy trial, which is effectively trumped in New York by two statutes, a speedy-trial law and the “ready rule.” The former is similar to the Sixth Amendment language we’re familiar with in the federal Constitution. But it is functionally meaningless when prosecutors are able to use and abuse the so-called “ready rule” by claiming they’re “ready” for trial when they’re really not. In Browder’s case, the prosecutors declared themselves “ready” before they had even located the witness who first accused him. Subsequently they found ways under the law to stop the clock on the six-month deadline for the start of a trial.

The New York Law Journal masterfully documented the history and lobbying involved in convincing lawmakers to sign the “ready rule” into law in 1972. And yes, some of the prosecutors’ pleas included the words “chaos” and “legalized jailbreak” in them. With such a powerful law at their disposal, it’s no wonder prosecutors invoked it time and again at Browder’s expense, subjecting him to multiple trips between Rikers and the Bronx, with no resolution to his case in sight. Gonnerman’s piece goes to great lengths to explain how the public servants in the case gamed the clock. And it was all legal:

June 23, 2011: People not ready, request 1 week.
August 24, 2011: People not ready, request 1 day.
November 4, 2011: People not ready, prosecutor on trial, request 2 weeks.
December 2, 2011: Prosecutor on trial, request January 3rd.

An adversarial system like ours could’ve curbed some of that, but Browder couldn’t afford an attorney, so he was assigned one. Though not a state employee, court-appointed lawyers are very much creatures of statute. The story of why New York City doesn’t have a proper system of public defenders is itself lengthy, but suffice it to say, court-appointed attorneys work under the rules of a bureaucratic scheme that pays them little, dumps an absurd amount of work on them, and offers them little incentive to be zealous advocates for their clients.

The constant hustle explains why Brendan O’Meara, who no doubt did all he could to represent Browder to the best of his ability, failed to get him released shortly after his arrest. Gonnerman’s account is fuzzy as to what exact moves O’Meara tried — he said he made “multiple bail applications” and failed. But that’s not everything O’Meara could have brought; he could have, for instance, tested his luck with another judge with a writ of habeas corpus. The process is involved, and if he didn’t try it, it’s hard to blame him. New York doesn’t pay him enough to do that kind of work.

Of course, the Department of Corrections does have enough of a budget to spend nearly $100,000 per Rikers prisoner per year. The jail complex has demons of its own, and outside forces wield enormous power over it. But we keep it running. That taxpayer money went to house a 16-year-old in solitary confinement to the point that he lost his mind — rather than to bail him out or get him a decent attorney — lays at our very feet the death of Kalief Browder. He did not take his life last weekend. We took it from him.