Race & Bail in America
“State and County QuickFacts: USA,” US Census Bureau, accessed December 1, 2013, http://quickfacts.census.gov/qfd/states/00000.html; “Crime in the United States 2012,” Federal Bureau of Investigation, accessed December 1, 2013, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012. Harold Winter, The Economics of Crime: An introduction to rational crime analysis (Routledge, 2008). “Created Equal: Racial and Ethnic Disparities in the US Criminal Justice System,” National Council on Crime and Delinquenct, March 2009, Accessed March 24, 2014, http://www.nccdglobal.org/sites/default/files/publication_pdf/created-equal.pdf. “The Top 10 Most Startling Facts About People of Color and Criminal Justice in the United States,” Center for American Progress, accessed March 24, 2014, http://www.americanprogress.org/issues/race/news/2012/03/13/11351/the-top-10-most-startling-facts-about-people-of-color-and-criminal-justice-in-the-united-states/. “Pretrial Criminal Justice Research,” Laura and John Arnold Foundation, accessed March 24, 2014, http://arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf
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.
On 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.
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.
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.
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.
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.
What are the odds that you will go to prison?
Eliminating Racial and Ethnic Disparities in the Criminal Justice System (December 6, 2013)
PJI’s Executive Director Cherise Fanno Burdeen moderated a panel on racial disparities in determination of bail at the Brennan Center for Justice in Washington, D.C.
Panelists included Professor Cynthia Jones of American University’s Washington College of Law, PJI Executive Director Emeritus Tim Murray, and Spurgeon Kennedy of the DC Pretrial Services Agency.
By Deon Jones
This week, the Obama Administration, advocacy organizations, state and local governments, and citizens across the United States are celebrating Black Male Achievement Week. This is a time when stakeholders bring to the forefront the plight of African-American males in the U.S. and devise action plans to solve them. There are many economic, educational, and social injustices that still plague the African-American community today, and here at the Pretrial Justice Institute (PJI), we believe in the iconic words of Dr. Martin Luther King Jr., that “an injustice anywhere is a threat to justice everywhere.” Dr. King wrote these words while incarcerated, pretrial, in a Birmingham, Alabama jail in 1963. Since 2007, PJI has advocated diligently to promote fair, safe, and effective pretrial services in jurisdictions all across the country, particularly moving from a system based on monetary status to one that is based on individual risk , an injustice that drastically affects non-violent, poor African-American males across the country (more…)
Kalief Browder, NYC Teen Jailed For Years With No Conviction
At 16 years old, Kalief Browder was arrested in the middle of the night as he walked home from a party and given a bond of $10,000 that he nor his family could meet. After spending over 1,000 days at Rikers Island Correctional Facility the charges against Kalief were dropped and he was allowed to return home. Learn more about his story in this HuffPost Live interview with Marc Lamont Hill.
Give Us Free-Addressing Racial Disparities in bail Determinations - Jones 2014.pdf
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Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model - Gelbach and Bushway 2011.pdf
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Minnesota Supreme Court Task Force on Racial Bias in the Judicial System - 1993.pdf
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Misplaced Priorities- Over Incarcerate, Under Educate - NAACP 2011.pdf
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