Pretrial Injustice

When we talk about pretrial injustice, we are drawing attention to the devastating impact that pretrial detention/release decisions have on individuals, families and communities under our current status-quo. As the following stories show, pretrial injustice takes many forms. A traffic stop or minor offense can result in long periods of pretrial detention that threaten economic and family survival for defendants whose indigence already made them unable to afford bail. And in rare but horrifying cases, the most dangerous defendants -- those who may be released simply because they make bail -- can threaten public safety and do violence to others.

 

 

 

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Ralph BerryIn 2010, Ralph Berry was arrested for murdering a man outside a nightclub. Two days after his arrest, the police found DNA evidence that could have exonerated him, but they didn’t pass it along to the prosecution. Instead, the teenaged Ralph was held at Rikers Island for three years before his case finally went to trial, ending in a determination of innocence. During his protracted period of pretrial detention, he was brought to court over 20 times, but his case kept getting delayed.

Due to funding cuts, New York State’s right to a speedy trial (within six months of being arrested) frequently gets stuck in what Fusion media has called a “traffic jam” when it comes to Bronx defendants. Even in wealthier New York boroughs, it can take much more than six months for felony cases to go to trial, but in the Bronx the wait time can go as high as 36, 48 or even 60 months. In addition, attempts to streamline the process for felonies has resulted in a bottleneck of thousands of misdemeanor defendants waiting for their time in court in the Bronx, often spending long pretrial terms in jail because they cannot afford bail.

It is bad enough to be wrongly accused, but being robbed of three years of freedom while waiting for your day in court magnifies the injustice. For someone like Ralph Berry, asserting his innocence and refusing to plead out, the three years were a nightmare filled with confusion, frustration and threats of violence. Stories like Ralph’s demonstrate the extreme need for a pretrial justice system that incorporates all of the best practices for front-end processes, including validated defendant risk assessments; seamless communications amongst all of the stakeholders (i.e. law enforcement, prosecution and court officers); and appropriate funding and resources for court services and trials to go forward in a timely fashion. The Bronx traffic jam is much too counter-productive and much too dangerous.

Tracy JohnsonWhen Tracy Johnson was suffering severe drug withdrawal symptoms in the Estrella Jail of Maricopa County, Arizona, other inmates tried to comfort her, giving her extra pieces of clothing to relieve her shaking. However, the jail, which was holding her after she was arrested in August 2012 on suspicion of stealing scrap metal valued at $350, did not come to her aid when she truly needed it. After receiving an initial medical intake screening that lasted only two minutes, she was notified that she was number 104 in the line for medical treatment. In spite of the fact that she was vomiting and had dry heaves in the medical ward and that her pain was clear to fellow inmates and should have been clear to jail staff members, she never saw a physician. Tracy was found dead in her cell not long after.

Under the management of Sheriff Joe Arpaio, the Maricopa Jail System has become notorious for its treatment of prisoners – ranging from “housing” an overflow of predominantly immigrant pretrial detainees in tents with internal temperatures over 140 degrees Fahrenheit and dressing male prisoners in prison-issued pink underwear to serving just two meals per day, often of “surplus food.” Sheriff Arpaio and the jail system have also been the subject of a racial profiling lawsuit brought by the U.S. Department of Justice and numerous wrongful death lawsuits. In the successful lawsuit that Tracy’s family waged, they charged that the sheriff and the jail were “deliberately indifferent” when it came to the issue of medical care for pretrial detainees. A system of crowding jails to accommodate low-risk pretrial defendants like Tracy leads too easily to dehumanizing them and denying them the treatment and care they need.

Death-Trap Jail - Markuieze Bennett (Hinds County, MS)

Markuieze BennettOn April 1, 2014, The Clarion Ledger of Jackson, Mississippi reported that 21 year old Markuieze Bennett was killed in a jail riot while “serving time for strong armed robbery.” The truth is that Markuieze had not been convicted; he was a pretrial defendant, presumed innocent until proven guilty, who had been in detention for close to two years -- held on a charge of car theft because he could not afford bail and because the charge was deemed a parole violation.

Two years of pretrial detention is a very long time. When you look at the face of Markuieze Bennett that was featured in the media after his death, you see that he is certainly trying to look tough and strong, a posture that is probably both self-protective and necessary in an environment like the Raymond Detention Center in Hinds County, a facility that experienced another incident of major violence less than two years ago, which resulted in the closing of a large section of the jail.

Markuieze’s case was fairly strong. He had alibis from several witnesses. His co-defendant gave a statement that he committed the crime alone. Although his public defender tried to get the case considered in every docket, it was regularly de-prioritized and even described as “a little car theft,” which in the broken system of pretrial justice meant that Markuieze may have been held longer before trial because his charge was less serious. Markuieze’s brutal death underscores many of the common problems in the front end of the criminal justice system, including the need for evidence-based risk assessments and an early screening by an experienced prosecutor. Instead of investing a little time in Markuieze’s case early in the process, the system denied him his freedom and his right to a trial while relegating him to a dangerous facility that a Hinds County District Supervisor calls “a public safety nightmare” and that Markuieze’s public defender sadly describes as a “death-trap jail.”

Jerome "Tony" MurdoughAs his family is quick to point out, Jerome Murdough was a military veteran and a caring man who will be greatly missed. Jerome was also a homeless man who struggled with long-term mental illness. On a cold night in early February 2014, he was arrested for trespassing – sleeping in the enclosed stairwell of a housing project in Harlem – and was not able to pay his bond, which was set at $2,500.  After a week of pretrial detention at Rikers Island, Jerome, aged 56, was found dead in his cell. He had been given anti-psychotic and anti-seizure medications for his mental illness, but no one had checked on him for hours, and due to a heating malfunction, the temperature in his 6 by 10 cinderblock cell was over 100 degrees. The combination of medications and dangerously extreme heat are likely to have contributed to his death.

A very sad and disturbing picture of neglect emerges. Although he was placed in a mental observation unit, observation of this vulnerable man was lax. Moreover, Rikers Island is a jail and should not be the destination for mentally ill detainees although currently an estimated 40% of its 12,000 inmates are mentally ill. Instead of responding to Jerome’s illness by setting an exorbitantly high bond for trespassing (which no homeless person could meet), a risk-based pretrial assessment and system would have evaluated his illness and frailty and arranged for him to receive services and medical care through an appropriate mental health facility or program. Unfortunately, in the current money-based bail system, jails like Rikers Island are too often serving as warehouses and poor, often frightening institutional substitutes for those who are among the most vulnerable in our society -- low-risk, indigent, mentally ill people.

Kalief

When he was 16 years old, Kalief Browder was arrested in the middle of the night as he walked home from a party. A man in a police vehicle had identified him as the person who robbed him of his backpack and punched him in the face a few nights earlier. Although Kalief had no criminal record, he was charged as an adult and, because his family could not afford his $10,000 bond, he was sent to Rikers Island Correctional Facility, where he was held for over 1000 days in jail. His trial was never scheduled, but in January of 2013—just five months before the charges against him were dropped—he was offered release on time served if he pled guilty to the robbery. And he was threatened with the possibility of 15 years in jail.

Answering to some higher self, Kalief refused the plea deal: “Yes, I wanted to go home….The reason I didn’t take it is I didn’t do it….I didn’t feel the least bit comfortable saying, ‘I did it.’ I had to tell them, ‘No.’” What wisdom can there be in a system that submits a teenager to this kind of pressure? And what kind of system holds him for three years after his arrest without checking his alibi, conducting a lineup, trying him in court or explaining the ultimate decision to dismiss the case? Kalief has said that during his time in jail, he suffered beatings and was placed in solitary confinement for over 400 days. He tried to kill himself six times and yet he never received any mental health treatment. It is hard to hear his story and not think that many things went terribly wrong at various times throughout his case. And it is very likely that most of it wouldn’t have happened at all if Kalief’s family could have paid his bail and Kalief hadn’t been hidden away in the limbo of pretrial detention.

MarthaWhen Martha Casillas died on September 7, 2013, she became the sixth victim of a domestic violence homicide in San Jose this year. According to police, her estranged husband Mario Chavez tracked her down in her new home and stabbed her to death, while his 13 year old and 6 year old sons were in the next room watching TV. According to her 22 year old daughter, Katia Chavez, Martha was an extremely caring and hard-working woman who always made time for her children.

Just a month before her death, she left her husband of 23 years and tried to find a safe haven for her family after he allegedly went after their 6 year old son with a knife. As so many stories about domestic violence teach us, for a variety of reasons it is often extremely difficult for a partner/ victim to come to the decision to leave an abuser, but at that breaking point, when her young son was threatened, Martha not only moved out; she had her husband arrested and also filed a restraining order. The restraining order did not help her after her husband was released on bail for $2000. As their daughter lamented soon after her mother’s death: “He tried to kill my little brother, and all he had to do was pay $2000.” Inspired by the example of Martha Casillas’s strength, our justice system has to do a better job of assessing and managing the dangers of domestic rage, protecting families and making complex and sensitive decisions that are based on risk, not bail money.

DonovanOn October 1, 2007, 19 year old Donovan Drayton shot a gun in the air as he ran away from the scene of the fatal shooting of 30 year old Dwight Bent. Drayton, who had no prior criminal record and no real history with any of the principal actors in the shooting, was arrested 10 days later, at which point, with the support of his father, he made a decision to accept responsibility for what he had done, cooperate with the police and admit to firing the gun, which he claimed had been taken from Bent and thrown to him prior to the violence. He waived immunity, testified at his grand jury hearing and then steadfastly held to his story for several years while resisting pressure from prosecutors and the judge to become the “fall guy”--plead guilty to the homicide and cut years off his potential sentence. Almost six years after Mr. Bent’s killing, a jury basically agreed with Drayton’s assertion that he had shot the gun once in confusion and panic; they convicted him on only one count of weapons possession. By that time, Drayton had already spent more than five years in pretrial detention even though he seemed a likely candidate for bail or pretrial release.

Much of the case against Drayton hinged on the questionable plea deal statements of two of his acquaintances, members of the “Set Trip Mafia,” who had driven him to meet two other men, including Bent, on the morning of the shooting. During the period of his long pretrial detention, which featured many hearing delays and a few moments of prosecutorial excess, one of Drayton’s co-defendants even recanted earlier statements he had made about Drayton’s role, eventually taking sole responsibility for the shooting. However, even after the trial, the prosecutor couldn’t seem to let go of Donovan Drayton. He demanded that Drayton be sent to Rikers Island for the two months prior to his sentencing. Fortunately, the judge refused to compound the injustice experienced by Drayton in pretrial detention and did not return him to jail during the pre-sentencing phase.

Victor Rivera

In May of 2012, Victor Rivera was charged with verbally threatening a police officer, an accusation that he strongly denied. After not being able to afford his $25,000 bond or even the $2,500 required to pay a bail bondsman, he spent 11 months in jail before finally pleading guilty to the charge in April 2013. However, he continued to claim his innocence, explaining that he felt the plea was his only way out. He estimated that without the plea, his pretrial stay might have lasted at least another 4 or 5 months. After the plea, Rivera was sentenced to time served and immediately released, but he never got the chance to make his case in court, and the guilty plea is now part of his permanent record.

According to the New Jersey Drug Alliance’s “New Jersey Jail Population Analysis: Identifying Opportunities to Safely and Responsibly Reduce the Jail Population,” Rivera’s predicament is by no means unique: 1. close to seventy-five percent of the people in New Jersey jails are awaiting trial; 2. the length of pretrial detention is usually more than ten months; 3. nearly forty percent of the total jail population cannot afford bail (even at nominal amounts of $2500 or less); and 4. there is a significant backlog in criminal cases that sometimes freezes people in the pretrial phase. Faced with these facts—and having already served almost a year in pretrial detention—Victor Rivera made a choice that he did not like but that is not at all surprising.

iPhone

Teenager Perchelle Richardson received a simple cell phone—no designer frills or dazzling apps or special features—for her birthday, but a few days later when she saw an IPhone in a neighbor’s unlocked car, she took it. In “A Road Map for Juvenile Justice,” the Annie E. Casey Foundation discusses new research findings that “’the brain systems that govern impulse control, planning, and thinking ahead are still developing well beyond age 18.’” For Perchelle, the theft appears to have been an impulsive choice that she almost immediately questioned and regretted. She felt guilty and scared and didn’t know what to do. A few hours later, police showed up at her door. She handed them the phone; they arrested her. Perchelle had no criminal history, and the magistrate judge assured her that her older sister would be able to take her home, but when her sister arrived the next morning, she didn’t have the $200 in administrative fees for Perchelle’s unsecured $5000 surety bond. Perchelle’s attorneys could not get the court to waive the fees, and Perchelle remained in pretrial detention for 51 days.

This was a very long period indeed for 18 year old Perchelle. Her education had already been interrupted and compromised by the upheaval of Hurricane Katrina, which forced her family to move her in and out of a variety of schools, and now she was falling further behind. Possibly even more devastating for Perchelle, her family couldn’t afford to purchase her a phone card, and so she wasn’t able to talk to her mother at all during her detention. And without Perchelle to help babysit her younger brothers and niece while her mother and sister worked, the family had to move closer to another family member who could take on some of Perchelle’s babysitting responsibilities. Eventually, the district attorney decided not to prosecute but not before Perchelle and her family had suffered the harsh consequences not just of a teenaged girl’s impulsive choice but a bail system’s arbitrary nature.

Vika Sinipata

Two women are accused of embezzling from their employer in 2011. Jo Ann Seeney, the Finance Director, has already been accused of embezzlement of hundreds of thousands of dollars at two previous companies, but is able to pay 10% of her $250,000 bond for the 2011 arrest, is subsequently released on bail and is able to have her case heard at trial. However, her bookkeeping assistant, Vika Sinapata, who has no previous record of an embezzlement arrest, cannot afford 10% of her $150,000 bond and so spends several months in pretrial detention, where she eventually agrees to a plea deal.

Such a stark contrast in pretrial outcomes, ruled only by the ability or inability to pay bond, not only refutes logic and common sense but also demonstrates how inequalities at the pretrial stage can extend almost inevitably into other stages of the justice system. People who are held pretrial are more likely to get convictions and sterner sentences; moreover, the stress and immediacy of pretrial detention, the immersion in the system that it represents, and the coercive reality of jail make it much more likely that a pretrial detainee like Vika Sinapata will take a plea deal rather than wait for her day in court.

Juan Delgato Perez

In 2013, the Nevada Supreme Court ruled that the District Court “manifestly abused its discretion” in the case of Juan Delgado Perez. Perez, who had been arrested on a single drug charge, was not only originally given 15 days of pretrial detention without bail but was assessed a bail amount that had astronomically risen from $3,000 to $1,000,000, seemingly at the whim of the presiding judge. When reading the transcript of Perez’s arraignment, it is hard to determine exactly what he could have said or done to annoy Judge Douglas Smith so much, but it seems clear that the judge was mis-using the setting of bail and pretrial detention as a form of punishment, which is in direct contradiction to its purported purpose—to ensure appearance in court.

As the transcript reveals, it is at the point where Perez says “I’ll have to get another lawyer” that Judge Smith announces his decision to remand him, stating “With an attitude like that, you can sit in jail.” Perez, whose invocation of his legal rights and request for a new attorney may have initially infuriated the judge at arraignment, used those rights to very good effect when he filed the petition with the Nevada Supreme Court that resulted in their finding of judicial abuse.

Shadu Green

In her three-part NPR story on the human costs of the bail system, Laura Sullivan traces the story of Shadu Green, a young man who was pulled over for speeding in the summer of 2009. Over the course of several weeks in pretrial detention, Shadu wrestles with a common pretrial dilemma and shares some of his thoughts with Sullivan: should he plead guilty to the charges, which include resisting arrest and assaulting the officers who pulled him over, or should he wait it out until he can fight the charges in court? According to Shadu, it is the officers who assaulted him and treated him with disrespect, and it is very difficult for him to reconcile himself to saying otherwise even though it will mean that he can leave jail after 60 days.

Shadu was deemed likely to appear in court for his trial, and so his bond was set fairly low; if he had been able to post just $1000 in bond or pay $400 to a bondsman, he wouldn’t even be considering forgoing his right to a trial by jury, but the stakes are very high for indigent defendants like Shadu who can’t afford even the lowest bail arrangements. He has already lost his job and his apartment; he fears the economic repercussions of having a criminal record, which gives him yet another reason to refuse the plea deal; but he also feels guilty about the financial and emotional impact of his continued pretrial imprisonment on his family, particularly his baby daughter. He wonders if he is being “selfish” by sticking to his story and waiting to prove his point to a jury. And he is worn down by the experience of being in pretrial detention. Just as he is on the brink of making the decision he really does not want to make—to accept the plea deal—his daughter’s mother comes through with the $400 and he leaves jail. By that point, Shadu has spent close to a month and a half in pretrial detention, just a few weeks shy of the 60 days he would have gotten with the plea deal. But even four months later, as Shadu contemplates another postponement of his court date, he seems confident and sanguine—a man who relishes his freedom and the opportunity to make his case in court.

Leslie Chew

Stories about pretrial detention sometimes seem to be all about numbers. We may read that for just $2000 in bail or $20,000 in bond, one defendant could have avoided ten months of pretrial detention, while another defendant is eventually sentenced to four months (which is actually five months less than the time he has already spent awaiting trial.) The numbers quickly lose the logic of arithmetic, turning into an exhausting litany while becoming very real barriers to justice for indigent people like Leslie Chew.

Leslie Chew’s numbers are terribly compelling and intrinsic to his experience of the criminal justice system. A handyman who often lived in his station wagon, Leslie got very cold one December night in 2008 and decided to steal four blankets. The store security guard prevented him from taking the blankets out of the store and called the police. Not able to pay his $3,500 bond or even 10% or $350 to a bondsman, Leslie spent more than eight months in pretrial detention at a cost of over $9000 to the community. Can four blankets really equal eight months of pretrial detention in anyone’s arithmetic? Although Leslie was willing to plead guilty, his case moved slowly and even by month six of his pretrial detention, prosecutors had only visited him once. By the time he was released for time served after pleading guilty to felony theft of four blankets valued at $30 each, his car had been re-possessed and his chance at maintaining his modest livelihood had drastically diminished. All this in exchange for four blankets. All this instead of paying $350 to a bondsman, but as Leslie Chew understood only too well, $350 was as unattainable as a “million dollars to me.”

sandraUnless you understand the delicate balance that people on the economic margins must maintain in order to survive and take care of their loved ones, you cannot understand the enormous consequences suffered by Sandra Johnson because of a glitch in an online active warrant system. In early 2013, the Nevada Highway Patrol stopped Sandra because she had expired tags but instead of giving her a warning or writing a ticket, they arrested her on a pre-existing no-bail bench warrant, and Sandra ended up staying in jail for 17 days, trying to convince people that she had been arrested in error. It wasn’t until she finally made it into court that Judge Linda Bell discovered that Sandra had been telling the truth all along. She had been arrested in error; the bench warrant had been quashed years before; but because of a glitch, the online system had not been updated correctly. Judge Bell released her with apologies but 17 days in detention had already wreaked havoc on the delicate balance that Sandra Johnson, a recovering drug user with a history of felony charges, had been working so hard to achieve.

Sandra had been out of prison for more than three years; she had voluntarily completed an extra stint in rehab; and she had received an honorable discharge from probation. She was starting to build a new life with her young daughter. She had recently purchased a car so that she could work, and she was just about to start a new job at the time the Nevada Highway officers noticed her expired tags. When she was released from jail, much of this new start was already gone; she couldn’t afford the $1300 to get her car out of impound; and she had lost the new job before it even started. She had also been separated for more than two weeks from her daughter, who was too young to understand this sudden turn of events and who had already experienced too much insecurity in her life. The error in the online system was quite easy to see as soon as someone took the time to look, but pretrial detention not only circumvents the legal rights of people like Sandra; it often renders them invisible.

TraciTraci Miscavish was a mother, grandmother, sister, daughter and a good friend. She was also a florist with a sense of humor, someone who could truly appreciate the slogan “Keep Calm and Flower On” emblazoned on a t-shirt she received as a gift. At a memorial service after her death, the signature design was worn by many of her friends and acquaintances, including members of Penn State Law School’s Family Law Clinic who were working on her troubling divorce/ domestic abuse case. This was a touching tribute to the humanity and spirit of a woman who in her last months was fighting for her life as well as her independence.

According to police records, in January of 2013, Traci’s husband, Mark, a retired state trooper who was angry that she wanted to end their 30 year marriage, allegedly attacked her when she came to pick up some belongings from their house. He threw her to the ground and brandished a gun but someone in a pickup truck stopped him as he was trying to drag her back inside. Traci called the police and filed a Protection from Abuse Order, where she described how Mark had told her that he had “nothing to lose” and that “if he could not have her, no one could.” However, after spending just a week in jail, her husband was released when his bail was reduced. Domestic violence—which is responsible for 3 to 4 deaths like Traci’s every day in the U.S.—is a challenge for the criminal justice system, but it is also a social responsibility for all us, and a sliding scale of money bonds was certainly not going to prevent an emotionally devastated man who felt he had “nothing to lose” from acting on his violent impulses. Two months later, he went to Traci’s work place, shot her to death and then turned the gun on himself.

 

Lakewood Officers

On the morning of November 29, 2009, Officer Tina Griswold, Officer Ronald Owens, Sergeant Mark Renninger and Officer Greg Richards of the Lakewood Police Department were shot to death at the Forza Coffee Company diner as they sat at a table working on their laptops before their shifts were due to begin. One day later, Officer Griswold’s sister, Tiffiny Ryan, said, “My worst nightmare has come true” when she spoke at a press conference. Her murdered sister, she said, was “the world to me.” Ms. Ryan was not the only one to lose her world that November morning; among other loved ones, the officers left behind 9 children. The man who killed them, Maurice Clemmons, had shot three of the officers in the head and the fourth in the neck – “execution style.” As the town of Lakewood and the entire country would soon learn, Clemmons had a great deal of experience with weapons and a very long history of violence. Before he committed these murders, he already had at least five felony convictions in Arkansas and several felony charges in Washington.

What makes this sad and disturbing case even more unfathomable is that at the time of his rampage, Clemmons was free on two separate bonds for violent crimes committed earlier in the year. Clemmons had been arrested for assault in May, but was released the next day after posting bond with a bail bondsman. Although he had a small business and owned property and was, therefore, able to pay for his bond, his mental state was apparently deteriorating at rapid pace. Two days after release for the assault, he raped a 12-year-old girl and escaped from police. He was eventually rearrested, but – unbelievably -- made bail again with the assistance of a bail bondsman, this time paying $15,000 for a $190,000 bail bond. During his short stay in jail, he threatened to kill guards, and a psychological evaluation indicated that he posed a threat to the community. Less than a week after release, during a Thanksgiving gathering, he vowed to friends and family that he was going to murder police officers and children. Three days later, he made good on the first part of his vow when he ended the lives of four police officers who had given their community a combined total of more than 47 years of law enforcement service.