Some of you may have heard the appalling story of Kalief Browder, the young man who committed suicide on Saturday at the age of 22. Even though I thought I was aware of how bad some aspects of the criminal justice system in the US are, this story managed to surprise me by the sheer cruelty and injustice on display.

Here is a brief summary of his story:

Arrested at 16 years old for a crime he swore he didn’t commit. Charged as an adult on suspicion of stealing a backpack. Three years in jail waiting for a trial that never happened.

Kalief Browder spent two of those years in solitary confinement on New York’s notoriously harsh Rikers Island. Mentally tormented, he repeatedly tried to take his own life before he was released without charges in 2013 and became a symbol for justice reform in the nation’s largest city.

But even as a free man, Browder couldn’t make himself whole. It all ended Saturday with his suicide at age 22.

Now, his family wants to make sure what happened to him doesn’t happen to anyone else.

“After fighting so hard to get out of jail — and then fighting on the outside to restart his life — he ultimately was unable to overcome his own pain and torment, which emanated from his experiences in solitary confinement,” Browder’s family said Monday in a statement provided to the Los Angeles Times.
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“I think what caused the suicide was his incarceration and those hundreds and hundreds of nights in solitary confinement, where there were mice crawling up his sheets in that little cell,” Browder’s attorney, Paul V. Prestia said in a phone interview Sunday evening. “Being starved, and not being taken to the shower for two weeks at a time … those were direct contributing factors.… That was the pain and sadness that he had to deal with every day, and I think it was too much for him.”

Prestia then became emotional, his voice wavering as he recalled Browder, whom he said hadn’t had mental health problems before he was arrested and jailed in 2010.

He could not get out of jail while awaiting trial because his family was unable to post the $10,000 bond.

When you read this story, your mind reels at the many things that are wrong. He was jailed just on suspicion of stealing a backpack? He was kept in jail awaiting trial for three years? Two years in solitary confinement? In mice-infested cells with only fortnightly access to showers? $10,000 bail for the charge of stealing a backpack? And kept in the notorious Riker’s Island prison? Treated as an adult though he was only 16? And all this despite the fact that the evidence against him was so weak that he was finally released without charges?

Did I mention that Browder was poor and also black? Do I need to?

We have seen the many ways in which the justice system treats poor people much more harshly than rich ones. In yet another excellent investigative piece, John Oliver on Last Week Tonight takes a look at a less scrutinized form of this disparity and that is the bail system. (He mentions the case of Robert Durst. Compare Durst’s story with that of Browder’s.)

One thing he did not mention is that the eighth Amendment to the US Constitution expressly states that “Excessive bail shall not be required”. So what constitutes excessive bail? A public defender in the state of Connecticut writes:

So at what point does a bond become “excessive” and thus in violation of either the State or Federal constitutions? The point of bond (or bail) isn’t to ensure that the defendant cannot post it, but rather to ensure that he has enough invested in the posting of that bond that it provides an incentive for him to return to court and thus avoid forfeiting that amount.
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Onto the question of what bail is excessive: Certainly if the reasoning behind bail provisions is to ensure the appearance of the defendant in Court, then one cannot circumvent the Constitutional mandate by setting a bond so high that the defendant cannot reasonably post it.
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An argument can be made that setting such excessive bonds constitutes a form of preventive detention that carries along with it a presumption of guilt. Why else would such a big bond need to be set, unless everyone suspected that the guy was guilty as sin.

In the case of Browder, a bail of $10,000 was pretty much guaranteeing that he would not get out of jail. Some jurisdictions are using a standard based on what the defendant can afford which seems reasonable, especially with poor people for minor crimes and where the risk of flight is small.

There is no doubt that we have a very sick police and criminal justice system that uses ostensibly legal measures such as civil asset forfeiture, selective prosecution, arbitrary arrest and abuse of people, harsh bail, and unequal sentencing that results in the grossest miscarriages of justice against the poor and the politically weak, while allowing every opportunity for the rich and powerful to avoid paying for their much worse crimes.