How we can avoid the tragedy of another Kalief Browder

It is hard to escape the conclusion that the state of New York killed Kalief Browder.

At age 16, he was arrested, accused of stealing a backpack. When his family could not pay his bail, he was packed off to Rikers Island, a vicious, brutal jail. Later, the possibility of bail was removed altogether, by way of a legal technicality.

Though he could have been released at many points by pleading guilty to a minor charge, he insisted that he had committed no crime, and demanded his constitutional right to trial. This kept him incarcerated for month after month, with long stints in solitary confinement, as prosecutors failed to put together a case. After three years, it turned out Browder's accuser had left the country, and no other witnesses could be found. The case was dismissed and he was freed in 2013.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

By all accounts, the torture of solitary confinement mangled Browder's mind. A regular kid before incarceration, he came out paranoid, agoraphobic, and deeply depressed. Several times, both when he was in Rikers and after his release, he attempted suicide. Last weekend, he succeeded. He was 22 years old.

Practically every single aspect of Browder's case is monstrous. But one in particular has a good claim to be the worst: prosecutors' abuse of continuances, or delays in the legal process. Prolonged solitary confinement is without question unconstitutional torture, but it was the continuances that kept Browder at Rikers for years on end, destroyed his mind, and likely led to his suicide.

In a deeply disturbing profile of Browder's treatment, Jennifer Gonnerman listed the continuance notes piling up in his case file, as prosecutors failed to do anything at all with his case:

This is highly reminiscent of the case of Sierra Zurn, whose case I wrote about for The Week in March. She also endured over a year of prosecutors failing to make a case, after which it was dismissed. Though Browder obviously had it much worse than Zurn (who was only kept in solitary for two days, though the effect was still brutal), in both cases one gets the unmistakable impression that the prosecutor was deliberately using continuances to force a guilty plea. By dragging out the threat of punishment, prolonging pretrial detention, and increasing legal fees, the great majority of defendants will ultimately crack and plead guilty to something or the other. Roughly 95 percent of cases that are not dismissed end in plea bargains.

(A New York law does state that cases are supposed to be tried within six months, but only the time requested by the prosecutor actually counts towards the total. Court delays, usually a month or more for each continuance, don't count — and so six months can be turned into three years or more.)

Prosecutors' motives may range from vindictive punishment of someone who insists on their constitutional rights to simple laziness. Whatever the motive may be, it is vital to remember that both of these cases were extremely simple: robbery and assault in Browder's case, marijuana possession in Zurn's. One competent detective and one competent district attorney could have gathered all conceivable evidence and testimony in a matter of days, a week at the outside. Were their cases simply not worth investigating? Did prosecutors rely on continuance coercion to force a resolution?

Prosecutors should not be able to do this. The Sixth Amendment clearly states that "the accused shall enjoy the right to a speedy and public trial," while the Eighth Amendment states that "excessive bail shall not be required."

New York officials invariably point to the state's pinched budget and long backlog of cases, particularly in the Bronx, as an excuse for the grueling torture inflicted on Browder and others like him. But the Bill of Rights does not include exceptions for public agencies that are underfunded and/or incompetent.

So while New York Mayor Bill de Blasio is reportedly working on some minor reforms, I propose some more stringent rules. Anyone whose case has currently been pending for six months or more — like the 1,500 people who have been held in jail for over a year without trial — shall be summarily released. Prosecutors will have six months from the date of arrest to make their case. If more than three continuances are requested without proof that work on the case is being done, then it will be dismissed. Money bail shall be imposed only on those who have ability to pay.

Prisoners should have to not pay for government incompetence or austerity with their constitutional rights.