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America’s mass outrage today draws provocation from the highly circulated scene of local police brutally and slowly killing a Black man in broad daylight. This wasn’t an abrupt excision of life, but rather, a prolonged, dehumanizing asphyxiation. George Floyd wasn’t suspected of anything violent; he supposedly used a counterfeit $20 bill. Yet, officer Derek Chauvin continued to kneel on his neck for 8 minutes and 46 seconds in the shadow of a police cruiser. Neither Floyd’s frantic pleas nor the limp submission of his unconscious body were ever enough to convince the officer that he posed no threat.
Shifting scenes, we find analogous forms of alarmism and asphyxiating state violence being replicated across the American criminal justice system, from jail cells to courtrooms. Pointedly, Colinford Mattis and Urooj Rahman, two protestors from Brooklyn who hurt no one have been detained at an especially dangerous federal prison. Meanwhile, Chauvin was granted bail.
To grant bail, a federal judge must find that the accused will not pose a danger to public safety. The government exaggerates the threat that Urooj and Colin pose. They allegedly charred the console of an abandoned police car and are now in jail facing unjust punishment and potentially irreparable psychological harm in solitary confinement following COVID-19 quarantine precautions. In contrast, Chauvin, who “perpetrated an eminently dangerous act,” as the whole world saw him so casually strangulate a man, does not have to be in jail right now. He had a release order, but did not want to meet the conditions. According to a source, he chose to stay in prison for his safety.
Urooj and Colin, who are known for their dedication and service to their communities and productive legal careers, were initially granted bail by both a magistrate and district court judge who recognized their reliability due their track record of civility and their ability to meet the substantial $250,000 bond each. While released home on GPS-monitoring, the government demanded they be thrown back in jail pending appeal in a process legal scholars have described as an outrageous outcome of a highly unusual prosecutorial move. In doing so, the prosecution amplifies misrepresenting the identities of Colin and Urooj as fantastically dangerous, and undermines the determination of two experienced federal judges by perpetuating the same kinds of alarmist fantasies that have rooted racial violence and discrimination in this country for centuries.
Discrimination creeps into decisions of determining bail just as it seeps into information presented to grand juries to ensure indictments are issued. The prosecutors have now rushed to charge Colin and Urooj with seven felony counts which carry a 45-year mandatory minimum for the same charges that did not intend or cause any harm to human life. Their case has become central to a politicized strategy executed by the President and his Attorney General to penalize popular dissent, demonize protesting against police violence. Practices of vindictive prosecution demonstrate how egregious forms of discriminatory judgment are being deployed by the federal government to unjustly intimidate people of color to plea and to inflate the dangerousness of the accused in the eyes of a judge.
The denial of bail unleashes the ravaging violence of incarceration in America upon presumably innocent people. If denied bail, Colin — a Black man — will no longer be able to care for his three foster children, and Urooj — a Pakistani woman — will have to find her mother a new primary caregiver.
The right to bail is an essential civil liberty, so it is unnerving that today the overwhelming majority of the accused, including youth, are denied bail. Although critics have long shown how the current system unfairly criminalizes poverty, Urooj and Colin’s case demonstrates how it unfairly discriminates against race and ethnicity as well. If these two attorneys were denied their right to bail despite their professional achievements, pristine criminal records and access to skilled legal counsel, any responsible observer must ask, what chance do others with less means and less connections have? Yet, a white police officer can trigger the entire nation by murdering a Black man and somehow get bail?
On June 23, the U.S. Second Circuit Court of Appeals heard the government’s case to deny Urooj and Colin bail. The Court will soon render a decision which will have a far-reaching impact. As 56 former federal prosecutors have warned, if this goes the government’s way, factors such as family and community ties and prior criminal history will not matter when assessing the dangerousness of a defendant for purposes of bail.
We cannot let Urooj and Colin become additional victims of state violence by forcing them to languish in federal prison before they are proven guilty. We pray the Judges uphold equality under the law and signal to people of color across the country a commitment to a fair and equitable legal process, no matter one’s race.
Correction: an earlier version of this article incorrectly stated officer Derek Chauvin was out on bail.
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Cornel West is a philosopher, political activist, social critic, author and public intellectual.
Saquib Ali Usman is a sociocultural anthropologist.
