Bail, Crime, Prisons

Criminally Yours: Frayed Justice

Housing the poor before they’re found guilty just because they can’t afford bail is just not right.

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A 22-year-old boy who was in jail three years for being accused of stealing a backpack, and whose case was eventually dismissed, killed himself last week, many believe due, in large part, to the post-traumatic stress he suffered from his treatment at Rikers Island prison.

While there and awaiting trial, he was beaten by guards and inmates on multiple occasions, put in solitary confinement, not fed, and not given medical treatment.

The story is all the more shocking because the amount of time Kalief Browder had to wait to go to trial – three years — is not an aberration. People who can’t make bail, without having been found guilty of a crime, have been mistreated at county jails, holding cells, and places like Rikers for decades. Adding to the tragedy of Kalief Browder was his age, only 16 at the time of his arrest. Perhaps because of his youth, he assumed that proclaiming his innocence was more important than pleading guilty to get out of jail. It took a lot of guts for Kalief to uphold his moral standards but that decision may have cost him his life.

The People eventually dismissed the case. He never got his “speedy” trial. Why? First, the inequity of the bail system. Second, “speedy” doesn’t mean quick in the criminal justice system.

While we’re not living in Charles Dickens’s London, shades of poverty still rule the day in criminal prosecutions. The majority of people housed at Rikers are there because they can’t afford bail. The simple fact is, most of the people arrested and prosecuted in state court are poor.

Over 90% of arrestees have public defenders assigned to them. The nature of their crimes alone scream out poverty and desperation — fare beats, prostitution, shoplifting, burglary, robbery, low-level drug possession and sales. These are the meat-and-potatoes of criminal court.

Now set any bail, even what most judges see as a pittance — $500 or less — and the defendant stays in jail for the length of his case no matter how trivial the charge. In the U.S., we don’t call it preventive detention, but that’s what it is — the mass incarceration of poor people awaiting trial.

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So what does the right to a “speedy” trial actually mean? In New York State, it means a felony must be tried within six months of the suspect’s arrest and for a misdemeanor, 90 days after his arraignment. But the clock doesn’t run like a high-end Rolex. It stops and starts, gets frozen in places for months, and sometimes becomes so difficult to decipher because of the number of adjournments and the reasons for them that the People eventually throw in the towel and dismiss the case.

I’m not claiming defense attorneys have clean hands. Frankly, with more serious crimes and strong witnesses against the client, delaying the case could be a smart strategy. The more time goes by, the harder it becomes for the prosecutor to find witnesses and the dimmer their memories grow.

But prosecutors are at fault as well. Excuses for speedy-trial delays include: the ADA is on trial with another case; it’s the cop’s RDO (regular day off) so he doesn’t show up; the lab needs to finish the DNA processing (this alone can take months), or the prosecutor’s on vacation.

More cases would plead out sooner if the prosecutors permitted open-file discovery. In New York, defense attorneys aren’t entitled to the grand jury minutes of witnesses or police reports about the crime until the day the jury is being picked. Defense counsel can’t really know how strong the case is until they study that paperwork. An earlier sharing of information would eliminate a lot of the cat-and-mouse brinksmanship.

The fault also lies with the courts themselves. There are too many cases for too few judges. Sometimes no court parts are available. Occasionally there are not enough jurors.

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Furthermore, when the court sets a “definite” date for trial, no one takes it seriously. Routinely, prosecutors show up and say their cop is unavailable or their witness is out of town. The ADA himself might be on vacation even though the date was selected in advance, or the defense attorney might find himself in the middle of another trial.

Interestingly, this kind of nonchalance does not happen in federal court. When a federal judge tells you a trial is starting, you better well cancel your vacation, because it’s starting.

Add this all together and it leads to waits of over two years for trials on felony cases that should have taken six months to get to a jury.

But the real tragedy is with the misdemeanors. These cases, by their nature, are low-level and could be tried quickly. Because there’s more of them in the system than anything else, finding a free judge is next to impossible. It’s common for prosecutors to “announce readiness” (say they’re ready in court), when in actuality, they are not. By “announcing readiness,” they stop the speedy-trial clock even if their readiness is a mere sham, done because there are no court parts and no one will call them on it. Suddenly the 90-day time limit becomes six months, then nine months, then a year — the maximum sentence you can get for a misdemeanor in the first place.

It’s a game of chicken with the defendants often losing. For those who can’t afford bail, they’re stuck in jail, subjected to all the abuse and danger that portends until the plea offer amounts to less than their jail stay. I can’t count the number of people I’ve represented who pleaded guilty while protesting innocence, just to get out of jail. Doing such is fraught with future problems, corrupting the client’s ability to find work, housing, loans, etc. But for many, it’s a better option than staying at Rikers.

It appears Kalief Browder stuck to his guns. He didn’t do the crime, so he refused to plead guilty. Who knows what would have been a better choice for him. Even had he taken a plea, his life may have ended tragically.

One thing’s for sure. It would have been better for Kalief, and everyone, including taxpayers who pick up the cost of incarcerating people before trial, if he had gotten his trial within a reasonable amount of time. If the system were improved so that six months meant more like six calendar months; if the People agreed to provide “open discovery,” like what’s done in other states; if there were more judges, jurors, and the host of court personnel that go along with that … well, then “speedy” might just start to mean speedy.

But until then, housing the poor before they’re found guilty just because they can’t afford bail is just not right.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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