1 Part I: The Principles and Limits of Punishment 1 Part I: The Principles and Limits of Punishment
1.1 Class 1 - The Criminal Legal System & Social Control; What is a Crime and Who Decides? 1.1 Class 1 - The Criminal Legal System & Social Control; What is a Crime and Who Decides?
1.1.1 Introduction to this Casebook and to Criminal Law 1.1.1 Introduction to this Casebook and to Criminal Law
Introduction to criminal law and this course
Welcome to Criminal Law! I find it to be one of the most interesting and thought-provoking areas of law and I hope that you will too.
Course materials
I decided to use an open-source casebook for two reasons: First, and most importantly, to save you the immense cost of another casebook. Second, I found myself adding more and more content because the lack of context and discussion of structural inequality in even the best casebooks was frustrating to me. So you will see here a combination of cases, along with other readings and sources. This is perhaps different than you expected or than you are receiving in your other first semester classes. I am hugely grateful to numerous colleagues and students for contributing to this project (please see full credits at the start of the book). This section in particular relies heavily on the work of my colleague Alice Ristroph.
My aim is that this casebook provides you with an introduction to important principles of criminal law, as well as an understanding of how issues of disability, race, sex, class, gender, and sexual orientation have been treated by the legal system and actors in the system. The book should also help you consider how criminal laws reflect societal norms and values (or those of the 'mainstream' societal community), how they have influenced--and been influenced by--change in this country, and what shortcomings continue in modern criminal law and the criminal system. I hope to invite meaningful discussions about the role of race in the legal system, and critical thinking about who in society benefits, and who is harmed, by current laws, policies, and enforcement decisions.
Although the subject of criminal law cannot be taught without the use of cases and resources that include terrible crimes with distressing details, I have tried to be thoughtful about the inclusion of difficult material. I did so to avoid using traumatizing material when it was not necessary to the purposes of this course. Please try be aware of your need for breaks and self-care as you proceed through these materials.
This book is always a work-in-progress. As the semester goes on, I will adapt these materials to match our pace together and to incorporate current events. I will always post at least two weeks ahead. As we go along, I welcome your feedback about which cases and other materials are helpful and which are less so, as well as places where more explanatory notes would come in handy. Please don’t be shy about letting me know what works and what doesn’t or even if you just find typos or other errors.
A quick note on language. First, as the American Bar Association (ABA) and other professional organizations have advised, I try to use people-first language to remind us of the humanity of people, particularly those impacted by the criminal system. Accordingly, I usually say "person convicted of a crime" or "the accused," rather than "criminal." Relatedly, I use the criminal legal system, instead of the criminal justice system, since I believe the system is frequently not just, particularly in its racial disproportionality. As the syllabus discusses in more depth, some cases and materials may use outdated language, and in class, I or other students may inadvertently use problematic language. Please let me know if this happens--I want to learn from you--and let us show each other grace as we are all learning together and trying to listen well to each other on these difficult topics.
Please also note that the book contains a supplemental resources section with optional materials, including podcasts. Please feel free to suggest new ones to me throughout the semester.
What Is Criminal Law?
Of the various subjects a student encounters in an American law school, criminal law may appear the most familiar. From an early age, every American is exposed to depictions of various aspects of the criminal legal system. Police appear in children’s books and toys, criminal investigations and prosecutions are dramatized in television and movies (who hasn't seen at least one episode of Law and Order?), and of course there is frequent media coverage of arrests, trials, and punishments. Criminal law appears everywhere, in part because in the United States it is nearly everywhere: this country uses criminal legal interventions with a frequency and severity unmatched in most other nations, including to address conduct as varied as prostitution/sex work, killings, homelessness and many more. For this reason, many of the ideas and terms you encounter in this book will be ones you’re likely to have heard before: charges, conviction, presumption of innocence, proof beyond a reasonable doubt, to give a few examples—along with terms of critique such as mass incarceration, racial bias and overcriminalization. (Now might be a good time to look at the Bruce Western video on this topic).
Nonetheless, media or other cultural depictions of the criminal legal system are misleading, and these depictions won’t teach you to practice law or even to understand the criminal legal system. This book does pursue those goals, and others. It seeks to give you an understanding of American criminal law that will be useful whether you practice in this field or a different area of law, and indeed, an understanding that will be useful even if you do not practice law at all. With so much criminal law everywhere in the United States, understanding how this area of law operates is crucial for any lawyer (or really any person living here, to vote, assess policies etc).
Even with the seeming familiarity of criminal law, many students eventually find the subject to be very different from what they expected “law” to be. To minimize confusion, it is useful to begin with some basic descriptions. What makes criminal law the same as other areas of law? That is, what makes it law? And what makes criminal law different from other areas of law? What makes criminal law a distinctive field?
Philosophers have no single answer to the question, what is law?, and dictionaries identify the word as one with multiple meanings. We speak of the laws of physics, for example, but those statements about the observed properties of physical objects are very different from the kinds of laws that one studies in law school. For the purposes of this book, law can be understood as a human practice that involves both (1) authoritative written texts and (2) decisions by public officials. For example, a statute that defines “burglary” is a written text, and it is designed to guide official decisions by police officers, prosecutors, and judges. Official decisions are only sometimes guided by a prior written text; sometimes public officials make decisions without statutory or other written guidance. And official decisions are sometimes, but only sometimes, recorded in a new written text. Decisions by police officers and prosecutors are usually unrecorded, whereas courts (mostly appellate) frequently document and explain their decisions in written opinions. This latter kind of text, the “case,” makes up much of law school reading assignments.
But cases are not the only written texts that are important to the practice of law, and judicial decisions are not the only decisions that are important to law. In criminal law (and many other fields), statutes are especially important legal texts. And in criminal law, decisions by executive branch officials are often determinative of the case outcome. This is especially true in our current system, where about 95% of cases plead out, meaning they never get to a jury and have very (usually very very) minimal judicial review and never appear in published cases. To give an example, if police and prosecutors decide to search, arrest, and prosecute people for marijuana possession only in certain neighborhoods (almost always low-income, disproportionately of color neighborhoods) and in almost all of those cases people plead out to get out of jail, or for other reasons, is the statute criminalizing marijuana really making the law? Or is it actually the police and prosecutors? Hint: Depending on the state, a statute may criminalize marijuana possession, but people in affluent neighborhoods don't really have to worry about having marijuana as they are so unlikely to be searched that it arguably is not really illegal for them in any meaningful sense.
Here, then, is one way in which criminal law is like other areas of law that you will encounter in law school: it is a distinctive human practice that involves the use of written texts to guide, constrain, or express official decisions and actions. It bears emphasis that the decisions reached in law are decisions made by human beings. Humans are rational creatures who might deliberate about moral values, or take into account empirical evidence, or be influenced by public opinion, or rely on “common sense” as they make legal decisions. But human rationality is limited by various factors such as imperfect information and cognitive biases. Perhaps criminal law is even more shaped by emotion and cognitive bias than other fields of human law; we will explore that possibility. Certainly, racial bias is a particularly acute concern in criminal law. For now, the key point is that legal texts are designed to guide human decision-making, but the relevant text may not be the only factor that shapes an official decision. See e.g. the marijuana example above. What other factors may be influencing police and prosecutor enforcement policy? Politics (who donates and has clout) including directives from the Mayor, Police Commissioner or District Attorney? (Often skewed and sensationalist) media coverage of crime? Police and prosecutor biases? A desire to get high numbers, of arrests and convictions, to increase funding for their departments?
A Quick Note on Law versus Policy
Many law students--or lawyers and people more broadly--draw a distinction between supposedly neutral or apolitical "law" (as made by court decision) and political "policy" (as enacted by legislatures in statutes, or by administrative agencies in regulations and other guidance). I believe that this is a false, and confusing, binary. We know that courts (look at, for instance, the U.S. Supreme Court in recent times) are influenced by politics to a lesser or greater degree, and that total neutrality is not really possible. Every law is driven by some underlying moral judgment, and decisions of how much to follow precedent by analogizing or distinguishing from other cases, inevitably include normative or value assessments. For our purposes here, we can think about both law and policy as being overlapping rules--there is the statutory rule, then court decision rule, that interprets and applies the statutes to particular cases or fact patterns. On top of this we have the enforcement policies or patterns that make more rules--arguably the criminal rules that affect most people. Remember the marijuana example?
Moreover, what lawyers do is argue for their clients' goals, that a law/rule does or does not include their case. We will frequently be in role in class, arguing for conviction or acquittal/dismissal. There is no "right answer" to most law school questions; instead, the best answer is the law school cliche of "it depends." When reading cases, try to make the arguments both ways; That is the best way to do well on law school exams, and, more importantly, to learn to be a lawyer. The law is not static, but rather constantly changing, for better or worse.
To this end, for each statute or case we discuss, do not take the outcome as a given. Sometimes you may agree more with the dissent, or with the party who didn't win. That is fine! I often do. When reading cases and statutes, and thinking about problems and hypos, consider who gains and who loses from a certain outcome more broadly than the case at hand. Good lawyers find a way to argue these kind of distributive "policy" considerations--or put another way "slippery slope" concerns--and they often factor into even trial court decisions as well as, more explicitly, appellate court decisions.
How is Criminal Law Different Than Other Types of Law?
What (beyond the possibility of unusual effects of bias and emotion) distinguishes criminal law from other fields of law? Criminal law was once more commonly called “the law of crimes,” and the concept of a crime may help us identify what is distinctive about criminal law. In popular culture , the term crime is likely to bring to mind images of wrongful or harmful acts. Accordingly, it is tempting to think of criminal law as the law that regulates (by prohibiting) acts of violence or other inflictions of harm. But in legal terms, a crime is any act that has been designated as a crime by the appropriate legal actors. We will consider a wide array of acts designated as criminal and investigate whether we can identify one or more shared characteristics of those acts. Is there an agreed-upon moral or societal definition of “wrong” or “harm” that predicts which acts will be labeled as crimes? Almost certainly not. Different communities having varying views--think e.g. of drug possession, parents' corporal punishment of their children, or jaywalking. The contested definition of wrongs and harms is true of even the most serious crimes, such as killings of a person. Self-defense and other justifications and excuses result in killings being treated very differently.
Whether or not the acts designated as criminal are in fact wrongful or harmful in all cases, the designation of a person as “a criminal”--or someone convicted of a crime--brings significant negative consequences to that person. Criminal law is often said to be distinctive in imposing unique burdens, such as loss of liberty through a jail or prison sentence. Even when a person convicted of a criminal offense avoids incarceration, a criminal conviction carries considerable stigma and often renders a person ineligible for various social benefits including access to public housing, certain types of employment, and the right to vote.
Indeed, the burdens of a criminal conviction are a key part of the distinction between criminal law and tort law. Tort law, which you will also study in your first year of law school, is similar to criminal law in that it imposes legal liability for conduct designated as wrongful. In fact, the modern English word “tort” comes from the Latin word tortum, meaning wrong or injustice. Many acts are both crimes and torts, such as intentional inflictions of physical injury. But tort law is different from criminal law in at least two key respects. First, the sanctions are different; tort liability usually means having to pay monetary damages, but it does not involve potential incarceration or the stigma of a criminal conviction. Again, criminal law is distinctive in the severity and stigma of its sanctions. A second way in which tort law is different from criminal law is that the decision to pursue a tort claim is usually the choice of a private party, not a public official. Police and prosecutors decide whether a given individual will be investigated and charged with a crime, but the party who is harmed by tortious conduct decides whether to file a tort suit.
Because the burdens of a criminal conviction are seen as more severe than the burdens typically imposed by non-criminal laws, criminal law contains various structures designed to limit the imposition of criminal penalties. For example, criminal punishment is said to require a higher standard of proof than is required in many other areas of law – that’s the beyond a reasonable doubt standard that you’re likely to have heard of. This is another way in which criminal law differs from tort law, and it may explain why some defendants are acquitted of criminal charges but found civilly liable for the same conduct in a tort suit. O.J. Simpson is a famous example of this: he was acquitted of the murders of his ex-wife Nicole Simpson and her friend Ron Goldman, but Simpson was found liable for the deaths in a subsequent civil tort suit with a lower standard of proof. Today, however, when the vast majority of accused people finish their cases with a plea ‘bargain’ rather than after a trial, some of these procedural protections do not do much work. **Now might be a good time to look at the two flowcharts in our reading for class 1, and to think about how these different process stages operate in theory versus in practice. Both show how complex the system is, but the 2nd, more critical, flowchart, demonstrates how most people never get to the adjudication stage--so the high burden of proof on prosecutors/the state does not often help them in reality.
Who ‘Makes’ Criminal Law?
Throughout this course, we will consider three types of official decisions that are especially important to criminal law. For any individual person to be convicted of a crime, each of these three decisions is necessary. First, the criminalization decision is the choice to define some category of conduct as criminal. Today, this decision usually must be made by a legislature and expressed in a criminal statute.
As a result, criminal law is often thought of as the “statutory” first year course. In other first year courses, judges often explicitly make the rules. They decide whether a contract is enforceable or whether a tort defense is available. By contrast in criminal law, the rules are generally made by the state legislatures. The relevant state (or city or federal) statute tells us what is forbidden and the courts' job is to interpret those statutes to determine whether the defendant has done the things the legislature has prohibited.
Yet, as we will discuss throughout this semester, criminal statutes and other texts that define activity as criminal are not self-enforcing. For example, as previously discussed, the existence of a statute that criminalizes the possession of marijuana is not by itself enough to ensure that all persons who possess marijuana will be convicted of violating that statute. A second type of decision key to criminal law is the enforcement decision, or the decision by enforcement agents such as police and prosecutors (from the executive branch) to arrest or charge a given person. Indeed, given the vast sweep of criminal laws, and the impossibility of arresting and charging everyone who commits a certain crime (e.g. shoplifting, marijuana possession, and many more), the enforcement of a law is arguably actually “creating” criminal law. The enforcement decision is usually not just one decision but two decisions or more: the decision by a police officer to investigate and perhaps arrest a person; the decision by a prosecutor to charge a particular offense; and in many instances, later decisions by a prosecutor to add or drop charges as part of a plea-bargaining process. Unlike the legislative process, these decisions by prosecutors are very untransparent and hidden from view. This is starting to change, with a small number of so-called “progressive prosecutors” publishing data online. We will discuss the power of prosecutors, and the potential for them--more than courts and legislatures--to drive criminal system reform, throughout this course. In the meantime, the cartoon under the "Power of the Prosecutor" tab is an illustration of who really makes criminal law today.
Plea bargaining is often (but not always) a precursor to the third key decision, the adjudication decision, in which a formal, and usually final, decision is made to classify the defendant as guilty or not guilty. If a criminal case involves a jury trial, then it is the jury who makes the adjudication decision. Some criminal cases (such as most of those involving teens, whom I represented as a public defender) involve bench trials, in which a judge serves as the factfinder and decides whether to convict the defendant or not. But the vast majority--around 95 %--of criminal convictions are based on guilty pleas rather than jury or bench trials.
When a defendant pleads guilty, it is more difficult to identify the actor who makes the adjudication decision. It could be said that the defendant himself (or herself) makes the adjudication decision, since the defendant admits his own guilt instead of asking a jury or judge to determine guilt. But what would lead a defendant to do that? In a system that promises that every defendant will be presumed innocent until proven guilty, why do so many defendants disclaim their own innocence and relieve prosecutors of their burden to prove guilt? Hint: think of the Kaleif Browder case discussed in our class 1 readings--what pressure does being incarcerated before trial--while presumed innocent in theory--put on people to plead? Most can't pay bail and don't want to stay there, and be abused and put in solitary confinement for years. Others can't be jailed for even a short time or they risk losing their jobs, custody of their children, their homes. . .On the other hand, in the few cases where juries are active, they may sometimes act on issues that do not relate purely to the definition of the law--such as biases, concerns about police and state violence, sympathy for a defendant or victim, etc. The OJ Simpson case is also an example of this phenomenon, as is the upcoming trial of Luigi Mangione, accused of killing the CEO of United Healthcare.
We will explore these questions more throughout the semester. It will turn out that criminalization decisions and enforcement decisions can create situations in which adjudication decisions all but disappear – the choice of what to criminalize, and how to enforce those laws, can make a guilty plea rather than a trial the least terrible option for many a defendant. For now, it is important simply to note that the distinctive standard of proof mentioned above – proof beyond a reasonable doubt – does not actually get tested in most criminal cases. Prosecutors don’t have to “prove” anything if a defendant pleads guilty.
In short, criminal law is a human practice which involves three important types of decisions: criminalization, enforcement, and adjudication. We will consider similar questions about each type of decision: Who makes it? Does the decision have to take a certain form (a statute, an indictment, a verdict) in order to be recognized as legally valid? What constraints or criteria apply to the decision, and how does each decision establish constraints or criteria for other decisionmakers? (We will also be thinking of the decisionmakers in terms of the 3 branches of government, and the balance between them).
Conclusion: Criminal Law in Practice
The other readings for today--excerpts from Before the Law, Misdemeanorland, and The New Jim Crow--show how the criminal system works on the ground in a world of plea bargaining with no real published law, and how that intersects with race, class, and other structural inequality (think eg of people who are undocumented) to limit the choices, and real process of law, for many people.
1.1.2. Mass Incarceration, Bruce Western video
1.1.3 Power of the Prosecutor 1.1.3 Power of the Prosecutor
1.1.4 Criminal Legal System Flowcharts, Cartoon & News Article on Luigi Mangione Case 1.1.4 Criminal Legal System Flowcharts, Cartoon & News Article on Luigi Mangione Case
The American criminal legal system is unique in both its scope and its organization. Before we start discussing what conduct is criminal (or whether particular conduct should be criminal) it is important to understand exactly what the criminal legal system is, and why more people, including me, no longer refer to it as the "criminal justice system."
Flowchart A: The so-called leaky pipe model of the system is crucial to understanding the practical realities of the administration of the American system.
The chart is here to give you a sense of the vastness and complexity of the criminal justice but, as the note indicates, it is not to scale. For example, as this table shows, of the 79,704 criminal defendants in federal court in the year studied, 71,550 pled guilty, while only 1,879 trials were held.
Flowchart B: This flow chart and accompanying text gives more detail about how these stages of the criminal legal system actually usually play out in reality. Compare it to the other, more conventional, flowchart, and feel free to--although you are not required to--browse the rest of the content of this valuable new resource.
Who has the real power in the criminal system? This cartoon shows that - in contemporary times - it is the prosecutor.
1.1.4.1 A. Flowchart A 1.1.4.1 A. Flowchart A
1.1.4.1.1. The Justice System | Bureau of Justice Statistics
1.1.4.2 Flow Chart B. 1.1.4.2 Flow Chart B.
1.1.4.2.1. Criminal Courts 101 | Beyond Criminal Courts
1.1.4.3. Why Jury Selection Will Be Key in Luigi Mangione’s Murder Trial
1.1.5. Excerpt of Before the Law: Three Years on Rikers Without Trial | The New Yorker
(if you want to read the full article, the link is below)
Excerpt of Before the Law by Jennifer Gonnerman
From the New Yorker 10/6/2014
Kalief Browder spent more than a thousand days confined on Rikers Island.
In the early hours of Saturday, May 15, 2010, ten days before his seventeenth birthday, Kalief Browder and a friend were returning home from a party in the Belmont section of the Bronx. They walked along Arthur Avenue, the main street of Little Italy, past bakeries and cafes with their metal shutters pulled down for the night. As they passed East 186th Street, Browder saw a police car driving toward them. More squad cars arrived, and soon Browder and his friend found themselves squinting in the glare of a police spotlight. An officer said that a man had just reported that they had robbed him. "I didn't rob anybody," Browder replied. "You can check my pockets."
The officers searched him and his friend but found nothing. As Browder recalls, one of the officers walked back to his car, where the alleged victim was, and returned with a new story: the man said that they had robbed him not that night but two weeks earlier. The police handcuffed the teens and pressed them into the back of a squad car. "What am I being charged for?" Browder asked. "I didn't do anything!" He remembers an officer telling them, "We're just going to take you to the precinct. Most likely you can go home." Browder whispered to his friend, "Are you sure you didn't do anything?" His friend insisted that he hadn't.
At the Forty-eighth Precinct, the pair were fingerprinted and locked in a holding cell. A few hours later, when an officer opened the door, Browder jumped up: "I can leave now?" Instead, the teens were taken to Central Booking at the Bronx County Criminal Court.
Browder had already had a few run-ins with the police, including an incident eight months earlier, when an officer reported seeing him take a delivery truck for a joyride and crash into a parked car. Browder was charged with grand larceny. He told me that his friends drove the truck and that he had only watched, but he figured that he had no defense, and so he pleaded guilty.
The judge gave him probation and "youthful offender" status, which insured that he wouldn't have a criminal record.
Late on Saturday, seventeen hours after the police picked Browder up, an officer and a prosecutor interrogated him, and he again maintained his innocence. The next day, he was led into a courtroom, where he learned that he had been charged with robbery, grand larceny, and assault. The judge released his friend, permitting him to remain free while the case moved through the courts. But, because Browder was still on probation, the judge ordered him to be held and set bail at three thousand dollars. The amount was out of reach for his family, and soon Browder found himself aboard a Department of Correction bus. He fought back panic, he told me later. Staring through the grating on the bus window, he watched the Bronx disappear. Soon, there was water on either side as the bus made its way across a long, narrow bridge to Rikers Island.
Of the eight million people living in New York City, some eleven thousand are confined in the city's jails on any given day, most of them on Rikers, a four-hundred-acre island in the East River, between Queens and the Bronx. New Yorkers who have never visited often think of Rikers as a single, terrifying building, but the island has ten jails-eight for men, one for women, and one so decrepit that it hasn't housed anyone since 2000.
Male adolescents are confined in the Robert N. Davoren Center-known as R.N.D.C. When Browder arrived, the jail held some six hundred boys, aged sixteen to eighteen. Conditions there are notoriously grim. In August of this year, a report by the U.S. Attorney for the Southern District of New York described R.N.D.C. as a place with a "deep-seated culture of violence," where attacks by officers and among inmates are rampant. The report featured a list of inmate injuries: "broken jaws, broken orbital bones, broken noses, long bone fractures, and lacerations requiring stitches."
Browder's family could not afford to hire an attorney, so the judge appointed a lawyer named Brendan O'Meara to represent him. Browder told O'Meara that he was innocent and assumed that his case would conclude quickly. Even the assistant district attorney handling the prosecution later acknowledged in court papers that it was a "relatively straightforward case." There weren't hours of wiretaps or piles of complicated evidence to sift through; there was just the memory of one alleged victim. But Browder had entered the legal system through the Bronx criminal courts, which are chronically overwhelmed. Last year, the Times, in an extended expose, described them as "crippled" and among the most backlogged in the country. One reason is budgetary. There are not nearly enough judges and court staff to handle the workload; in 2010, Browder' s case was one of five thousand six hundred and ninety-five felonies that the Bronx District Attorney's office prosecuted. The problem is compounded by defense attorneys who drag out cases to improve their odds of winning, judges who permit endless adjournments, prosecutors who are perpetually unprepared. Although the Sixth Amendment guarantees "the right to a speedy and public trial," in the Bronx the concept of speedy justice barely exists.
***
Inside R.N.D.C., Browder soon realized that he was not going to make many friends. He was assigned to a dorm where about fifty teen-age boys slept in an open room, each with a plastic bucket to store his possessions in. "Their conversations bored me," he told me. As far as he could tell, the other inmates were interested only in "crimes they committed and girls that they did." When Browder asked a guard how inmates were supposed to get their clothes cleaned, he was told that they had to wash them themselves. He thought this was a joke until he noticed other inmates scrubbing their clothes by hand, using their bucket and jailhouse soap. After he did the same and hung his wet clothes on the rail of his bed, he wound up with brown rust stains on his white T-shirt, his socks, and his boxers. That day, he told himself, "I don't know how I'm going to live in this place."
Browder's mother visited every weekend. In the visiting room, he would hand her his dirty clothes and get a stack of freshly laundered clothes in return. She also put money in a jail commissary account for him, so he could buy snacks. He knew that such privileges made him a target for his fellow-prisoners, who would take any opportunity to empty someone else's bucket of snacks and clothes, so he slept with his head off the side of his bed, atop his bucket. To survive inside R.N.D.C., he decided that the best strategy was to keep to himself and to work out. Before Rikers, he told me, "every here and there I did a couple pullups or pushups. When I went in there, that's when I decided I wanted to get big."
The dayroom was ruled over by a gang leader and his friends, who controlled inmates' access to the prison phones and dictated who could sit on a bench to watch TV and who had to sit on the floor. "A lot of times, I'd say, 'I'm not sitting on the floor,' " Browder said. "And then they' II come with five or six dudes. They'd swing on me. I'd have to fight back." There was no escape, no protection, and a suspicion that some of the guards had an agreement with the gang members.
Browder told me that, one night soon after he arrived, a group of guards lined him and several other inmates up against a wall, trying to figure out who had been responsible for an earlier fight. "They're talking to us about why did we jump these guys," he said. "And as they're talking they're punching us one by one." Browder said that he had nothing to do with the fight, but still the officers beat him; the other inmates endured much worse. "Their noses were leaking, their faces were bloody, their eyes were swollen," he said. Afterward, the officers gave the teens a choice: go to the medical clinic or go back to bed. But they made it clear that, if the inmates went to the clinic and told the medical staff what had happened, they would write up charges against them, and get them sent to solitary confinement. "I just told them I'll act like nothing happened," Browder said. "So they didn't send us to the clinic; they didn't write anything up; they just sent us back." The Department of Correction refused to respond to these allegations, or to answer any questions about Browder's stay on Rikers. But the recent U.S. Attorney's report about R.N.D.C. recounts many instances in which officers pressured inmates not to report beatings-to "hold it down," in Rikers parlance. n the morning of July 28, 2010, Browder was awakened at around half past four. He was handcuffed to another inmate and herded onto a bus with a group of other prisoners. At the Bronx County Hall of Justice, they spent the day in a basement holding pen, each waiting for his chance to see a judge. When Browder's turn came, an officer led him into a courtroom and he caught a glimpse of his mother in the spectator area. Seventy-four days had passed since his arrest. Already he had missed his seventeenth birthday, the end of his sophomore year, and half the summer.
A grand jury had voted to indict Browder. The criminal complaint alleged that he and his friend had robbed a Mexican immigrant named Roberto Bautista-pursuing him, pushing him against a fence, and taking his backpack. Bautista told the police that his backpack contained a credit card, a debit card, a digital camera, an iPod Touch, and seven hundred dollars. Browder was also accused of punching Bautista in the face.
A clerk read out the charges-"Robbery in the second degree and other crimes"-and asked Browder, "How do you plead, sir, guilty or not guilty?"
"Not guilty," Browder said.
An officer escorted him out of the courtroom and back downstairs to return to Rikers. It no longer mattered whether his mother could find the money to bail him out. The Department of Probation had filed a "violation of probation" against him-standard procedure when someone on probation is indicted on a new violent felony-and the judge had remanded him without bail.
Browder repeatedly told O'Meara, his court-appointed lawyer, that he would never plead guilty and that he wanted to go to trial. O'Meara assumed that his courtroom defense would be "Listen, they got the wrong kid." After all, the accusation had been made a week or two after the alleged
robbery, and the victim had later changed his mind about when it occurred. (The original police report said "on or about May 2," but Bautista later told a detective that it happened on May 8th.)
With each day he spent in jail, Browder imagined that he was getting closer to trial. Many states have so-called speedy-trial laws, which require trials to start within a certain time frame. New York State's version is slightly different, and is known as the "ready rule." This rule stipulates that all felony cases (except homicides) must be ready for trial within six months of arraignment, or else the charges can be dismissed. In practice, however, this time limit is subject to technicalities. The clock stops for many reasons-for example, when defense attorneys submit motions before trial-so that the amount of time that is officially held to have elapsed can be wildly different from the amount of time that really has. In 2011, seventy-four per cent of felony cases in the Bronx were older than six months.
In order for a trial to start, both the defense attorney and the prosecutor have to declare that they are ready; the court clerk then searches for a trial judge who is free and transfers the case, and jury selection can begin. Not long after Browder was indicted, an assistant district attorney sent the court a "Notice of Readiness," stating that "the People are ready for trial." The case was put on the calendar for possible trial on December 10th, but it did not start that day. On January 28, 2011, Browder's two-hundred-and-fifty-eighth day in jail, he was brought back to the courthouse once again. This time, the prosecutor said, "The People are not ready. We are requesting one week." The next court date set by the judge-March 9th-was not one week away but six. As it happened, Browder didn't go to trial anytime that year. An index card in the court file explains:
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.
The Bronx courts are so clogged that when a lawyer asks for a one-week adjournment the next court date usually doesn't happen for six weeks or more. As long as a prosecutor has filed a Notice of Readiness, however, delays caused by court congestion don't count toward the number of days that are officially held to have elapsed. Every time a prosecutor stood before a judge in Browder's case, requested a one-week adjournment, and got six weeks instead, this counted as only one week against the six-month deadline. Meanwhile, Browder remained on Rikers, where six weeks still felt like six weeks-and often much longer.
Like many defendants with court-appointed lawyers, Browder thought his attorney was not doing enough to help him. O'Meara, who works mostly in the Bronx and in Westchester County, never made the trip out to Rikers to see him, since a visit there can devour at least half a day. To avoid this trek, some lawyers set up video conferences at the Bronx courthouse with their clients who are in jail. O'Meara says he's "pretty sure" he did this with Browder, but Browder says he never did. Court papers suggest a lawyer in a hurry: in the fall of 2010, O'Meara filed a notice with the
court in which he mistakenly wrote that he would soon be making a motion on Browder's case in "Westchester County Court," instead of in the Bronx.
***
For a defendant who is in jail, the more a case drags on the greater the pressure to give up and plead guilty. By early 2012, prosecutors had offered Browder a deal-three and a half years in prison in exchange for a guilty plea. He refused. "I want to go to trial," he told O'Meara, even though he knew that if he lost he could get up to fifteen years in state prison. Stories circulate on Rikers about inmates who plead guilty to crimes they didn't commit just to put an end to their ordeal, but Browder was determined to get his day in court. He had no idea how rare trials actually are. In 2011, in the Bronx, only a hundred and sixty-five felony cases went to trial; in three thousand nine hundred and ninety-one cases, the defendant pleaded guilty.
Not long after arriving on Rikers, Browder made his first trip to solitary confinement. It lasted about two weeks, he recalls, and followed a scuffle with another inmate. "He was throwing shoes at people-I told him to stop," Browder said. "I actually took his sneaker and I threw it, and he got mad. He swung on me, and we started fighting." Browder was placed in shackles and transferred by bus to the Central Punitive Segregation Unit, which everyone on Rikers calls the Bing. Housed in one of the island's newer jails, the Bing has four hundred cells, each about twelve feet by seven.
In recent years, the use of solitary confinement has spread in New York's jails. Between 2007 and mid-2013, the total number of solitary-confinement beds on Rikers increased by more than sixty per cent, and a report last fall found that nearly twenty-seven per cent of the adolescent inmates were in solitary. "I think the department became severely addicted to solitary confinement," Daniel Selling, who served as the executive director of mental health for New York City's jails, told me in April; he had quit his job two weeks earlier. "It's a way to control an environment that feels out of control-lock people in their cell," he said. "Adolescents can't handle it. Nobody could handle that." (In March, Mayor Bill de Blasio appointed a new jails commissioner, Joseph Ponte, who promised to "end the culture of excessive solitary confinement.")
For Browder, this was the first of several trips to the Bing. As he soon discovered, a prisoner there doesn't leave his cell except to go to rec, the shower, the visit room, the medical clinic, or court; whenever he does leave, he is handcuffed and strip-searched.
***
There hadn't been much to do at R.N.D.C., but at least there was school-classrooms where the inmates were supposed to be taken every day, to study for a G.E.D. or a high-school diploma.
The Bing had only "cell study": a correction officer slid work sheets under the door in the morning, collected them a few days later, and, eventually, returned them with a teacher's marks. Some inmates never bothered to fill in the work sheets, but Browder told himself, "I'm already in jail-I might as well keep trying to do something." There were times, however, when nobody came by to collect the work sheets on the day he'd been told they were due. If Browder saw a
captain walk by through the small window in his door, he would shout, "Where is the school correction officer to pick up the work?"
Near the end of 2010, Browder returned to the Bing; he was there for about ten months, through the summer of 2011. He recalls that he got sent there initially after another fight. (Once an inmate is in solitary, further minor infractions can extend his stay.) When Browder first went to Rikers, his brother had advised him to get himself sent to solitary whenever he felt at risk from other inmates. "I told him, 'When you get into a house and you don't feel safe, do whatever you have to to get out,' "the brother said. " 'It's better than coming home with a slice on your
face.' "
Even in solitary, however, violence was a threat. Verbal spats with officers could escalate. At one point, Browder said, "I had words with a correction officer, and he told me he wanted to fight. That was his way of handling it." He'd already seen the officer challenge other inmates to fights in the shower, where there are no surveillance cameras. "So I agreed to it; I said, 'I'll fight you.' "The next day, the officer came to escort him to the shower, but before they even got there, he said, the officer knocked him down: "He put his forearm on my face, and my face was on the floor, and he just started punching me in the leg." Browder isn't the first inmate to make such an allegation; the U.S. Attorney's report described similar incidents.
Browder's brother reconsidered his advice when he saw him in the Bing visiting area. For one thing, he says, Browder was losing weight. "Several times when I visited him, he said, 'They're not feeding me,' "the brother told me. "He definitely looked really skinny." In solitary, food arrived through a slot in the cell door three times a day. For a growing teen-ager, the portions were never big enough, and in solitary Browder couldn't supplement the rations with snacks bought at the commissary. He took to begging the officers for leftovers: "Can I get that bread?" Sometimes they would slip him an extra slice or two; often, they refused.
Browder's brother also noticed a growing tendency toward despair. When Browder talked about his case, he was "strong, adamant: 'No, they can't do this to me!' " But, when the conversation turned to life in jail, "it's a totally different personality, which is depressed. He's, like, 'I don't know how long I can take this.' "
Browder got out of the Bing in the fall of 2011, but by the end of the year he was back-after yet another fight, he says. On the night of February 8, 2012-his six-hundred-and-thirty-fourth day on Rikers-he said to himself, "I can't take it anymore. I give up." That night, he tore his bedsheet into strips, tied them together to make a noose, attached it to the light fixture, and tried to hang himself. He was taken to the clinic, then returned to solitary. Browder told me that his sheets, magazines, and clothes were removed-everything except his white plastic bucket.
On February 17th, he was shuttled to the courthouse once again, but this time he was not brought up from the court pen in time to hear his case called. ("I'll waive his appearance for today's purposes," his lawyer told the judge.) For more than a year, he had heard various excuses about why his trial had to be delayed, among them that the prosecutor assigned to the case was on trial elsewhere, was on jury duty, or, as he once told the judge, had "conflicts in my schedule." If Browder had been in the courtroom on this day, he would have heard a prosecutor offer a new
excuse: "Your Honor, the assigned assistant is currently on vacation." The prosecutor asked for a five-day adjournment; Browder's lawyer requested March 16th, and the judge scheduled the next court date for then.
The following night, in his solitary cell on Rikers, Browder shattered his plastic bucket by stomping on it, then picked up a piece, sharpened it, and began sawing his wrist. He was stopped after an officer saw him through the cell window and intervened.
Browder was still on Rikers Island in June of 2012, when his high-school classmates collected their diplomas, and in September, when some of them enrolled in college. In the fall, prosecutors offered him a new deal: if he pleaded guilty, he'd get two and a half years in prison, which meant that, with time served, he could go home soon. "Ninety-nine out of a hundred would take the offer that gets you out of jail," O'Meara told me. "He just said, 'Nah, I'm not taking it.' He didn't flinch. Never talked about it. He was not taking a plea."
Meanwhile, Browder kept travelling from Rikers to the Bronx courthouse and back again, shuttling between two of New York City's most dysfunctional bureaucracies, each system exacerbating the flaws of the other. With every trip Browder made to the courthouse, another line was added to a growing stack of index cards kept in the court file:
June 29, 2012: People not ready, request one week. September 28, 2012: People not ready, request two weeks. November 2, 2012: People not ready, request one week.
December 14, 2012: People not ready, request one week.
By the end of 2012, Browder had been in jail for nine hundred and sixty-one days and had stood before eight different judges. He always maintained his composure, never berating his attorney or yelling protests in court. O'Meara was impressed by his control. "I can't imagine most people sitting in there for three years and not becoming very upset with their attorney," he says. "He just never complained to me." Privately, though, Browder was angry. About the prosecutors, he would tell himself, "These guys are just playing with my case."
On March 13, 2013, Browder appeared before a new judge, Patricia M. DiMango, who had been transferred from Brooklyn as part of a larger effort to tackle the Bronx's backlog. She was known for her no-nonsense style when dealing with defendants; at the Brooklyn courthouse, she was referred to as Judge Judy. (As it happens, this year she became a judge on "Hot Bench," a new courtroom TV show created by Judge Judy.) In the Bronx, DiMango's job was to review cases and clear them: by getting weak cases dismissed, extracting guilty pleas from defendants, or referring cases to trial in another courtroom. At the start of 2013, there were nine hundred and fifty-two felony cases in the Bronx, including Browder's, that were more than two years old. In the next twelve months, DiMango disposed of a thousand cases, some as old as five years.
Judge DiMango explained to Browder, "If you go to trial and lose, you could get up to fifteen." Then she offered him an even more tempting deal: plead guilty to two misdemeanors-the equivalent of sixteen months in jail-and go home now, on the time already served. "If you want that, I will do that today," DiMango said. "I could sentence you today. . . It's up to you."
"I'm all right," Browder said. "I did not do it. I'm allright." "You are all right?" DiMango said.
"Yes," he said. "I want to go to trial."
Back at Rikers, other prisoners were stunned. "You're bugging," they told him. "You're stupid. If that was me, I would've said I did it and went home." Browder knew that it was a gamble; even though he was innocent, he could lose at trial. "I used to go to my cell and lie down and think, like, Maybe I am crazy; maybe I am going too far," he recalled. "But I just did what I thought was right."
On May 29th, the thirty-first court date on Browder's case, there was another development. DiMango peered down from the bench. "The District Attorney is really in a position right now where they cannot proceed," she said. "It is their intention to dismiss the case." She explained that this could not officially happen until the next court date, which ended up being a week later. "I will release you today, but you have to come back here on time without any new cases," she said. "Do you think you can do that, Mr. Browder?"
"Yes," he said.
Browder could not believe what was happening. His battle to prove his innocence had ended. No trial, no jury, no verdict. An assistant district attorney filed a memo with the court explaining that Bautista, the man who had accused Browder, had gone back to Mexico. The District Attorney's office had reached his brother in the Bronx and tried to arrange for him to return and testify, but then the office lost contact with the brother, too. "Without the Complainant, we are unable to meet our burden of proof at trial," the prosecutor wrote.
Browder had to spend one more night on Rikers. By now, he had missed his junior year of high school, his senior year, graduation, the prom. He was no longer a teen-ager; four days earlier, he had turned twenty.
He didn't know what time he would be released, so he told his mother not to bother picking him up. The next afternoon, he walked out of jail, a single thought in his mind: "I'm going home!" He took the bus to Queens Plaza, then two subways to the Bronx, and his euphoria began to dissipate. Being around so many people felt strange. Except for a few weeks, he had been in solitary confinement for the previous seventeen months.
After leaving Rikers, Browder moved back home, where his mother and two of his brothers were living. Everybody could see that he had changed. Most of the clothes in his bedroom no longer fit; he had grown an inch or two while he was away and had become brawnier. Many of his
former pastimes-playing video games, watching movies, shooting hoops in the park-no longer engaged him. He preferred to spend time by himself, alone in his bedroom, with the door closed. Sometimes he found himself pacing, as he had done in solitary. When he saw old friends, he was reminded of their accomplishments and what he had not achieved: no high-school diploma, no job, no money, no apartment of his own.
Before he went to jail, he used to like sitting on his front steps with his friends, and when a group of attractive girls walked by he'd call out, "Hi. What are you doing? Where's the party at? Can I go with you?" Now, if he managed to get a girl's number, the first real conversation would always go the same way: she would ask him ifhe was in school or working, and he would feel his anxiety rise. Once he revealed that he was still living at home, without a job or a diploma, "they look at me like I ain't worth nothing. Like I ain't shit. It hurts to have people look at you like that." He could explain that he'd been wrongfully arrested, but the truth felt too complicated, too raw and personal. "If I tell them the story, then I gotta hear a hundred questions," he said. "It gets emotional for me. And those emotions I don't feel comfortable with."
Not long after Browder returned home, one of his relatives called an attorney named Paul V. Prestia and told him that Browder had spent three years on Rikers only to have his case dismissed. "Send him down," Prestia said. A former prosecutor in Brooklyn, Prestia now has his own firm. On his office wall hangs a 2011 Post story about a Haitian chef from the Bronx who was mistakenly arrested for rape and spent eight days on Rikers; Prestia got the case dismissed.
When Prestia first heard Browder's story, he thought there must be a catch; even by the sorry standards of justice in the Bronx, the case was extreme. "It's something that could've been tried in a court in a matter of days," he told me. "I don't know how each and every prosecutor who looked at this case continued to let this happen. It's like Kalief Browder didn't even exist." Earlier this year, Prestia filed a suit on Browder's behalf against the city, the N.Y.P.D., the Bronx District Attorney, and the Department of Correction.
Robert T. Johnson, the Bronx District Attorney, will not answer questions about Browder's case, because, once the charges were dismissed, the court records were sealed. But recently when I asked him a general question about cases that drag on and on, he was quick to deflect blame. "These long delays-two, three years-they're horrendous, but the D.A. is not really accountable for that kind of delay," he said. His explanation was that either the case did not actually exceed the six-month speedy-trial deadline or the defense attorney failed to bring a speedy-trial motion.
Prestia, in his lawsuit, alleges "malicious prosecution," charging that Johnson's prosecutors were "representing to the court that they would be 'ready' for trial, when in fact, they never were." Prestia said, "The million-dollar question is: When did they really know they didn't have a witness? Did they really not know until 2013?" He suspects that, as he wrote in his complaint, they were "seeking long, undue adjournments of these cases to procure a guilty plea from plaintiff." The city has denied all allegations of wrongdoing, and Johnson, when I asked about these accusations, said, "Certainly if there is something uncovered that we did wrong, I will deal with that here. But I don't expect that to be the case."
Prestia has represented many clients who were wrongfully arrested, but Browder's story troubles him most deeply. "Kalief was deprived of his right to a fair and speedy trial, his education, and, I would even argue, his entire adolescence," he says. "If you took a sixteen-year-old kid and locked him in a room for twenty-three hours, your son or daughter, you'd be arrested for endangering the welfare of a child." Browder doesn't know exactly how many days he was in solitary-and Rikers officials, citing pending litigation, won't divulge any details about his
stay-but he remembers that it was "about seven hundred, eight hundred."
One day last November, six months after his release, Browder retreated to his bedroom with a steak knife, intending to slit his wrists. A friend happened to stop by, saw the knife, and grabbed it. When he left the house to find Browder's mother, Browder tried to hang himself from a banister. An ambulance rushed him to St. Barnabas Hospital, where he was admitted to the psychiatric ward. In his medical record, a social worker describes the suicide attempt as "serious."
One afternoon this past spring, I sat with Browder in a quiet restaurant in lower Manhattan. He is five feet seven, with a high forehead, tired eyes, and a few wisps of hair above his upper lip. "Being home is way better than being in jail," he told me. "But in my mind right now I feel like I'm still in jail, because I'm still feeling the side effects from what happened in there."
***
This month, Browder started classes at Bronx Community College. But, even now, he thinks about Rikers every day. He says that his flashbacks to that time are becoming more frequent. Almost anything can trigger them. It might be the sight of a police cruiser or something more innocuous. When his mother cooks rice and chili, he says, he can't help remembering the rice and chili he was fed on Rikers, and suddenly, in his mind, he is back in the Bing, recalling how hungry he was all the time, especially at night, when he'd have to wait twelve hours for his next meal.
Even with his friends, things aren't the same. "I'm trying to break out of my shell, but I guess there is no shell. I guess this is just how I am-I'm just quiet and distant," he says. "I don't like being this way, but it's just natural to me now." Every night before he goes to sleep, he checks that every window in the house is locked. When he rides the subway, he often feels terrified. "I might be attacked; I might be robbed," he says. "Because, believe me, in jail you know there's all type of criminal stuff that goes on." No matter how hard he tries, he cannot forget what he saw: inmates stealing from each other, officers attacking teens, blood on the dayroom floor. "Before I went to jail, I didn't know about a lot of stuff, and, now that I'm aware, I'm paranoid," he says. "I feel like I was robbed of my happiness."♦
1.1.6 Excerpt of Misdemeanorland 1.1.6 Excerpt of Misdemeanorland
https://brooklaw.instructure.com/courses/3351/files/569226?module_item_id=119613
1.1.7 The New Jim Crow 1.1.7 The New Jim Crow
https://brooklaw.instructure.com/courses/3351/files/569214?module_item_id=119614