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Tom Rees | Criminal Defence Lawyer Winnipeg

What Can We Learn from the Tragic Case of Kalief Browder


A few months ago, The New Yorker published an anecdotal story detailing the ordeal of Kalief Browder – a young man who, at 16 years old, was accused of robbery in New York City. (“Before the Law”, by Jennifer Gonnerman October 6 2014). Browder spent 3 years in custody awaiting a trial, refusing to “plead out” to the charge even though it meant that he would have been released. At the initial stage, the judge ordered that Browder remain in custody with bail set at $3000 while he waited for his charge to be dealt with. The judge made this decision based on the fact that Browder was on probation at the time of the alleged offence. Browder, like many others who find themselves in the justice system, came from impoverished circumstances and the bail amount was not something his family could afford. And so, Browder spent the next 3 years waiting for his charges to be dealt with through the Bronx Criminal Courts – a court system that has been described as “chronically overwhelmed”, “crippled”, “among the most backlogged in the [USA]” and a system where “the concept of speedy justice barely exists”.

The focus of the article was mainly on the unconscionable length of time it takes for a simple case to get through the court system, and the toll it takes on those awaiting trial and their families. The article also gave an overview of the horrors Browder faced while in custody. It spoke of the inordinate amount of time he spent in solitary confinement (about 700 days). It spoke of the random assaults he endured at the hands of guards and other inmates. Simply reading about it, however, does not do it justice. You need to witness the inhumanity for yourself in order to get a true sense of the violent and dysfunctional reality faced by prisoners.

Recently, I saw for myself surveillance video of two of the many beatings Kalief Browder endured while in custody. (Click here to see it). One showed an unprovoked attack by a guard while Browder was helplessly immobilized in handcuffs. The other showed a prolonged gang beating of Browder after he retaliated against an inmate who spat in his face. It is truly a display of the worst humanity has to offer. All that I can say to describe what I saw in those videos was that the violence was shocking. Such a place cannot be seriously described as a “Correctional Facility”.

The public, for the most part, are not privy to a lot of what goes on in prison. We hear about the occasional incident through the media where the facts are interesting enough to warrant publishing a story. But we do not know about the day-to-day reality of the average prisoner that includes chronic violence, fear, and torturous solitary confinement in many cases. In spite of all the programming that may be available to inmates, can we really expect that prisoners will emerge from such an environment with “corrected” behaviour?

Sentencing in the Criminal Code is premised on the notions of denunciation, deterrence and to a lesser extent, rehabilitation. The belief that jail will deter individuals from committing crime, given the statistics on recidivism, is dubious at best. And the idea that one can be rehabilitated in such an environment as described above is utterly laughable. Custodial sentences do nothing to address the underlying problems that create crime in the first place. It is convenient to ignore the inadequacy of the penal system, and the lack of public information makes it all the more easy to do so. If we continue to blindly believe that custodial sentences do what they are purported to do, we don’t have to take responsibility for creating a system that fails in its goals and in which inhumanity is an acceptable norm. After all, we are collectively responsible for how our society is managed, in who we vote for and the causes we choose to support. We don’t want to believe that we support institutions where this kind of thing can happen.

Going back to the anecdotal story about Kalief Browder – his does not have a happy ending. A second article in the New Yorker gave an update on his tragic situation (Kalief Browder, 1993-2015, by Jennifer Gonnerman, June 7 2015). During his 3 years in custody, he attempted suicide on multiple occasions before his case was finally dismissed and he was set free. He returned home a different person. His family noted he was no longer engaged in things that used to interest him. He was depressed. He was chronically anxious. He had emotional, sometimes violent, outbursts. He was jumpy and paranoid. At one point, he had a TV removed from his room because he felt it was watching him. His suicide attempts persisted. He tried slitting his wrists, and he tried hanging himself. He was sent to the hospital psych ward on many occasions. He had a lot of support in the community.

His story caught the attention of celebrities, including Jay Z. A prominent New York lawyer heard about his case and filed a lawsuit on Browder’s behalf against New York City, the N.Y.P.D., the District Attorney, and the Department of Corrections. In spite of all the support in his corner, Browder ultimately ended his life a few days before this article was posted in June 2015. It cannot be said that his post-prison behaviour was “corrected” in any way. He came out deeply troubled and worse off than he had been before.

Kalief Bowder’s story may be anecdotal, but it should serve as a warning of what can happen when we turn a blind eye to the uncomfortable realities of our own justice system. We need to examine what it is that makes us think that jail can change anyone’s behaviour for the better.

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