Flowers rest on top of pictures of Kalief Browder in New York June 11, 2015.
Photo by Lucas Jackson/Reuters

The bill that could have saved Kalief Browder

Updated

NEW YORK – Activists and mourners gathered in front of the Metropolitan Detention Center in Lower Manhattan Thursday night to honor the memory of Kalief Browder and to rally support for a bill that could have kept the young man from the prison island where they lost him.

Browder was 16 years old when he was sent to Rikers. He was 20 by the time he left. For more than three years, Browder waited to be tried for the theft of a backpack, a charge he denied, and which the state lacked any compelling evidence to support. But before New York sent Browder home in June of 2013, it subjected him to all things cruel and unusual in American criminal justice. Guards and older inmates bruised his body, then solitary confinement went to work on his mind.

Browder spent his last two years on Earth struggling to return to his own life. He went to college. He went on talk shows, because, as Jennifer Gonnermen wrote in her obituary of the 22-year-old, Browder “wanted the public to know what he had gone through, so that nobody else would have to endure the same ordeals.”

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Thursday night’s vigil came six days after Browder hanged himself in his Bronx home, and less than a week before the end of New York State’s legislative session. Among the bills still pending in Albany is a proposal to raise the state’s age of criminal responsibility to 18. If the proposal is enacted, the state will be prohibited from housing anyone younger than 18 in adult correctional facilities like Rikers. At present, New York and North Carolina are the only two states in the country that prosecute 16- and 17-year-olds as adults.

“Rikers wasn’t a place for Kalief,” said Carmen Perez, executive director of The Gathering for Justice, an organization dedicated to ending youth incarceration. “It’s not a place for the 10,000 teenagers currently residing in adult facilities across America.”

The crowd of mourners, holding flowers and signs reading “Raise the Age,” and “Indict the System,” shouted their agreement.

They are far from alone in seeing sense in Perez’s statement. The proposal to “raise the age” enjoys the support of many of the New York’s most prominent political figures, including Gov. Andrew Cuomo, New York City Mayor Bill de Blasio, the city’s Police Commissioner William Bratton, and the state’s Commissioner of Corrections Joseph Ponte.

In January, the Governor’s Commission on Youth, Public Safety, and Justice released a 164-page argument for raising the age of criminal responsibility and expanding pre-trial diversion programs for juvenile offenders.

The report put the plight of youths housed in adult jails at the center of its case, noting that adolescents placed in such facilities suffer increased risk of recidivism and suicide.

But the commission also justified its recommendations in purely pragmatic terms, arguing that by reducing recidivism, its proposals would actually improve public safety and reduce the justice system’s burden on taxpayers.

Connecticut is a model for such an outcome: After raising its age of criminal responsibility to 18 in 2012, the state saw a 16.5% drop in the rate of recidivism among 16- and 17-year-old arrestees, according to a 2014 report.

“Rikers wasn’t a place for Kalief. It’s not a place for the 10,000 teenagers currently residing in adult facilities across America.”
Carmen Perez, executive director of The Gathering for Justice

At the heart of the academic and political consensus for treating 16-year-olds as juveniles is the overwhelming evidence that the human brain doesn’t reach maturity until early adulthood. This fact has ethical implications for the treatment of youth offenders: it implies an essential unfairness in holding an adolescent with an underdeveloped frontal cortex to the same standard of responsibility as a fully developed adult. But it also has a practical implication for public safety: A mind still in development is a mind that can still be shaped.

The literature on applying rehabilitative models to adolescent offenders suggests the policy presents no trade-off between mercy and security, which goes a way towards explaining its near universal adoption.

But despite the virtually unanimous support for the policy among U.S. states and criminologists, Albany remains divided over the reform.

If 16- and 17-year-old defendants are re-classified as juveniles, their trials will be diverted away from criminal courts and into family ones. Several members of the State Senate’s Republican majority have expressed concerns over such a shift, arguing that it would stress an already overburdened family court system, while enabling truly dangerous individuals to re-offend.

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However, state Republicans have come out in support of transferring 16- and 17-year-old offenders away from adult facilities and into “hybrid” detention centers, venues that would feature some of the security elements of adult prisons, along with some of the rehabilitative services associated with juvenile homes.

“There’s a concern that, you’ve got individuals committing crimes, and victimizing law-abiding people in the community,” Republican State Senator Patrick Gallivan told msnbc. “But at the same time there’s a recognition that there’s a housing issue that we need to address with 16- and 17-year-olds. And a recognition that we can do a better job as a state to rehabilitate these kids.”

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Gallivan said that Senate Republicans would also support giving district attorneys the authority to redirect certain 16- and 17-year-old misdemeanor defendants into the family court system.

Cuomo has urged the Assembly’s Democratic majority to sign onto such incremental measures. But many Democrats are reluctant to accept a compromise that would leave New York with one of the least progressive juvenile justice systems in the country.

“Even the most conservative states in the nation have seen fit to treat young people as children instead of as adults,” said Assemblyman Joe Lentol, a Brooklyn Democrat. “We need to have a reasonable compromise, one that at least raises the age of responsibility for kids who’ve committed misdemeanors or nonviolent felons.”

The speakers at Browder’s vigil took an even dimmer view of the Republicans’ offerings.

Angelo Pinto, manager of the Raise the Age Campaign, called the proposed hybrid facility a “baby super max” prison. He summarized the average Republican legislator’s position as “Let’s create a prison for 16- and 17-year-olds, put it in my district, and then I’ll go for raise the age.”

The legislature will end its session next Wednesday. Between now and then, lawmakers will need to strike agreements on the contentious issues of rent control, subsidies for residential developers and mayoral control of schools. With such a thorny itinerary, and Cuomo already lining up behind the Senate Republicans’ modest reforms, it’s hard not to think a “baby super max” is the best juvenile advocates can hope for. Absent a sudden groundswell of support for juvenile reforms, legislators are likely to spend their limited time and political capital protecting their constituents’ preferences on housing and education.

After The New Yorker brought national attention to Browder’s plight last October, his story has generated political will for some significant reforms. This January, New York ended solitary confinement for inmates under 21. In April, Mayor de Blasio and New York’s chief judge Jonathan Lippman announced a plan to prevent people from being held for extended periods of time without trial.

“He was strong until the very end. … To keep professing his innocence until the last day when they just let him go. As though their job is done.”
Kalief Browder’s older brother
Perhaps the terrible final chapter of Browder’s story will change the state’s political reality once again. 

If it doesn’t, Democratic supporters of juvenile reform in the Assembly will have a difficult choice to make. Either way, it will be too late for Kalief Browder.

After Wednesday, it will be months before the next opportunity to get 16-year-olds out of Rikers. We may never know who else we will have lost by then.

At Thursday’s vigil, Browder’s older brother gave his first public statement about Kalief. He praised his younger sibling’s steadfast refusal to comprise on his truth, even when doing so would have freed him from the torture of solitary:

“He stuck strong. He was strong until the very end. Three years on incarceration. To keep on saying that he’s not guilty. To keep professing his innocence until the last day when they just let him go. As though their job is done. They did what they needed to. They killed another black man.”

On Wednesday at Rikers, an inmate named Kenan Davis hanged himself in the general population housing unit for young adults. He was 18 years old.

Andrew Cuomo, Bill de Blasio and New York

The bill that could have saved Kalief Browder

Updated