On Tuesday, a year after the protests over policing that rocked New York City, voters in Manhattan will set the future of the borough’s criminal legal system. In the shadow of the mayoral election, eight candidates are running for Manhattan district attorney in the Democratic primary, and some are proposing major breaks with the departing incumbent.

Cy Vance, who has faced criticism from local activists for policies that they say are too punitive and insufficiently committed to police oversight, is not seeking re-election. And those who are running instead are laying out very different proposals for how they would replace him.

The Appeal: Political Report parnered with New York Focus to produce a five-part series reported by Sam Mellins on the Democratic primary focusing on key issues that the next DA will confront and on the contrasts among the eight contenders. Issues range from police oversight to drug policy. The series is summarized here, in advance of the primary. 

In this staunchly blue jurisdiction, the winner of the Democratic primary will be all but assured to win the election in November.

Police oversight: How will the next DA respond to police misconduct?

In the wake of last summer’s protests against police brutality, DA candidates have been pushed to rein in police misconduct and sideline officers who have lied. “The police can only go as far as the DA lets them,” Legal Aid attorney Rigodis Appling said. “Prosecutors can reform police.”

Six candidates pledged to publicize a list of officers whose testimony they would not rely on and to share officer misconduct records in full. Only Lucy Lang and Eliza Orlins said they would not prosecute single-witness NYPD cases. On commitments to purge convictions involving officers found to have engaged in misconduct, Alvin Bragg and Orlins went the furthest, while only Tali Farhadian Weinstein and Liz Crotty made no blanket commitments.

Read more (June 2021): On NYPD oversight, Manhattan’s DA candidates are split

Life sentences: Will the next DA shorten prison terms?

Around 8,000 New Yorkers are in prison for life, 80 percent of them Black or Latinx. Amid a national reckoning with excessive sentencing practices, advocates and scholars point to the many mechanisms available to prosecutors to bring down incarceration by avoiding the harshest sentences and boosting parole opportunities. 

Tahanie Aboushi, Bragg, Orlins, and Dan Quart all said they would never seek sentences of life without parole and would either never seek sentences above 20 years, or would have a presumption against it. Aboushi, Orlins, and Quart said they would never oppose parole applications, as the current DA frequently does. And other candidates, including Lang and Bragg, said they would actively support such applications more often.

Read more (April 2021): Some Manhattan DA Candidates Draw a Line Against Life in Prison Sentences

Sex work: Will the next DA advance decriminalization?

New York has been on a trajectory of expanding sex workers’ rights, and the next Manhattan DA will decide whether to continue toward decriminalizing sex work.

All candidates except Farhadian Weinstein and Crotty said they would stop prosecuting sex workers or buyers; Farhadian Weinstein said she would prosecute buyers but not sellers. Candidates split on their support for state-level legislation to decriminalize sex work, as well as on whether they support eliminating a controversial NYPD division heavily involved in policing sex work. (The month after the article cited below was published, Vance announced he would stop prosecuting sex workers.)

Read more (March 2021): In Manhattan DA Race, Momentum Builds to Decriminalize Sex Work

Statewide advocacy: Will the next DA remain in New York’s DA Association?

New York’s DA association has long been a powerful tool with which the state’s prosecutors have fought criminal justice reform proposals. Similar dynamics in other states have recently led reform-minded DAs to quit their associations. Will Manhattan’s next DA follow suit?

Three progressive candidates said they would leave the statewide DA association, which could undercut its ability to speak on behalf of all prosecutors. All but one candidate said they would be interested in joining or forming a progressive prosecutors association, even if they also stayed in the current association.

Read more (Feb. 2021): Will Manhattan’s Next DA Break Ranks With Tough-on-Crime Colleagues?

War on drugs: How will the next DA address the Special Narcotics Prosecutor?

New York City is home to a little-known office of over a hundred attorneys who solely prosecute drug crime. A remnant of Governor Nelson Rockerfeller’s war on drugs in the 1970s and the only prosecutor’s office of its kind, the office of the Special Narcotics Prosecutor has garnered more attention after multiple DA candidates pledged to severely curtail its powers.

Aboushi, Bragg, Orlins and Quart said they support the state legislature eliminating the office and they would vote to replace Bridget Brennan, the tough-on-crime head of the office, which would require the votes of three of the five borough DAs. Aboushi and Orlins said they would unilaterally withdraw the staff that the Manhattan DA lends to the office; after the article cited below was published, they were joined by Quart, who had initially said he was undecided.

Read more (Dec. 2020): The Election That Could Thwart New York City’s War on Drugs

The post How the Manhattan DA Election May Rock the City’s Criminal Justice Status-Quo appeared first on Bolts.

This article is published as part of a partnership between New York Focus and The Appeal: Political Report to cover the policy contrasts in Manhattan’s 2021 DA election. Our first articles address the war on drugs, statewide advocacy, life sentences, and sex work.

In the wake of worldwide protests against police brutality sparked by the murder of George Floyd, New York State and the city took steps last spring toward promoting police accountability, passing legislation to make many misconduct records publicly available and to ban the use of chokeholds.

“You don’t need to protest, you won,” Governor Andrew Cuomo said, addressing protesters after a package of reforms passed the legislature. “You accomplished your goal. Society says you’re right: The police need systemic reform.”

But New York activists say the effect of legislative reforms has been severely blunted by accounting tricks and continued police resistance to transparency. Many advocates view next Tuesday’s primary election for district attorney in Manhattan as their next best opportunity to promote police accountability. 

“The police can only go as far as the DA lets them,” Rigodis Appling, a criminal defense attorney and member of the Black Attorneys of Legal Aid caucus, told New York Focus and The Appeal: Political Report. “Prosecutors can reform police.” 

Prosecutors across the state have not done enough to rein in police abuses, advocates say. These arguments played out in DA elections elsewhere in New York last year and contributed to the ouster of the Westchester County DA amid a whistleblower scandal about a police cover-up. In New York City this year, they take on particular resonance given the revelations about former police officer Joseph Franco, who is alleged to have framed over 100 defendants with false testimony. 

Departing Manhattan District Attorney Cyrus Vance has faced criticism for a perceived lack of dedication to police accountability, including his choice to prosecute protesters arrested by the NYPD last spring.

Reform advocates have faulted Vance in particular for continuing to rely on police officers with a history of misconduct, for prosecuting cases where the sole witness is an officer, and for not doing enough to review past cases that involved tainted officers. Vance has purged some convictions due to officer misconduct, but advocates have called for his office to be more proactive in seeking out instances of wrongdoing and to move more quickly in purging.

On all those fronts, many of the eight candidates in the Democratic primary for DA—all of whom spoke to New York Focus and The Appeal for this article—are vowing change. They say they would take steps to increase consequences for police who engage in misconduct and to treat police testimony with more skepticism. 

For instance, two candidates said they would not prosecute cases in which the only witness is a police officer. Six said they would publicly release a list of police officers judged to be untrustworthy whose testimony they would not use in court.

But two candidates—Diana Florence, a former prosecutor at the Manhattan DA’s office, and Liz Crotty, also a former prosecutor who has been endorsed by several major law enforcement unions—committed to few or none of the policy changes that New York Focus and the Political Report asked about.

And other differences also emerged between the more progressive candidates, some of whom qualified their positions or made exceptions to their commitments. 

Untrustworthy officers

Getting prosecutors to stop relying on the word of untrustworthy police officers is one effective way to sideline them, advocates say. They want the next Manhattan DA will emulate Brooklyn and Staten Island in creating a “do-not-call” list of officers whose testimony they will not use. They also hope that the list will be shared with the public, unlike Brooklyn and Staten Island’s. 

According to news reports, the Manhattan DA maintains a list of untrustworthy police officers, but being on the list does not disqualify an officer’s testimony from testifying in court, and the list is not public. 

Six of the eight candidates—all except Florence and Crotty—said that they would change this policy: They would set up a list of officers whom they view as disqualified from testifying, and they would publicize the list. 

Candidates cited behaviors such as lying in court or falsifying records as actions that would lead officers to be placed on the list. Some candidates’ platforms describe criteria in more detail.

Alvin Bragg said his office would be proactive in identifying officers to be placed on the list. “The range of misconduct to which prosecutors have unique access is virtually unlimited,” he said, noting prosecutors’ review of evidence as a context in which police misconduct can come to light. “Police misconduct takes many forms that do not appear in disciplinary records.”

Such a policy would be a significant departure from the current status quo, where, Appling said, “everyone knows [police officers] can do whatever they want, they can say whatever they want, whatever they say about you is going to be believed in court.”  

The two candidates who did not endorse a public “do not call” list remained noncommittal. Florence referred to her proposal to have the City Council create a public database of officer misconduct.

Last June, the New York legislature repealed 50-a, a law that had shielded police misconduct records from public scrutiny for decades. Dan Quart, a member of the New York State Assembly, voted for the repeal in the legislature, while Bragg worked in support of the repeal from his position as deputy attorney general of New York. Other candidates also supported the repeal of 50-a. In March, after lengthy legal proceedings, thousands of disciplinary records of NYPD officers became public. 

But police reform advocates criticized the partial nature of the repeal, noting that misconduct cases that did not result in a finding or admission of guilt on the part of the officer were not made public.

In interviews with New York Focus and the Political Report, criminal justice advocates also called for the next DA to adopt greater transparency during trials when dealing with officers who have previously been accused of misconduct such as brutality or sexual harassment.

One reform they say would carry particular weight would be sharing police officer misconduct histories with defense counsel in full, something that advocates and public defenders said the Manhattan DA’s office has tended not to do.

“The DA’s office has access to records [on police misconduct]. But what they’re doing is only giving [defense] attorneys these very basic and narrow summaries,” said Jennvine Wong, an attorney with the Legal Aid Society’s Cop Accountability Project. 

“They could interpret their duty to disclose in a much broader manner, and give us the entire misconduct history that they have access to. But they’re not. You have to ask, ‘Why are you not doing that? Are you protecting these cops?’” Wong added.

Six candidates—Bragg, Florence, Quart, Tahanie Aboushi, Tali Farhadian Weinstein, and Eliza Orlins—said they would share the records of an officer’s misconduct with defense counsel in full, including all registered complaints regardless of whether they had been substantiated. Aboushi noted that disclosing “all evidence” would be her “default.”

Crotty and Lucy Lang said they would not share unsubstantiated complaints.

Purging tainted convictions

In April this year, Vance and Brooklyn DA Eric Gonzalez announced that they were moving to dismiss nearly 200 cases involving former NYPD detective Joseph Franco because of his 2019 indictment on charges of perjury and other official misconduct. 

Several criminal defense and criminal justice organizations, including the Legal Aid Society and the Innocence Project, called on the city’s DAs to go further; the groups identified 22 NYPD officers as having been convicted of crimes or of serious misconduct, and called on DAs to vacate all convictions in which these officers played an “essential role.” Six of the Manhattan DA candidates—all except Farhadian Weinstein and Crotty—signed a letter making this demand in May. 

When New York Focus and the Political Report asked the candidates about their positions, two of them—Bragg and Orlins—went beyond the demands of the letter. 

“If an officer who was known to have been a liar was part of the way in which that person was convicted, that case will be purged. Not a new trial,” Orlins said. Bragg also said he would purge convictions without making his answer contingent on the scope of the role played by the compromised officers or prosecutors.

Four candidates staked out somewhat more limited positions on purges of tainted convictions.

Aboushi, Lang, and Quart all used the language of the May letter, promising to vacate convictions in all cases in which tainted prosecutors or police officers had played an “essential role.” They also promised an investigation in cases where tainted officers played a lesser role. Aboushi went one step further when it comes to prosecutorial misconduct, as opposed to police misconduct, promising to drop charges or motions for a retrial in any such case.

Florence laid out a weaker position than the one she endorsed in the letter. She said she would support purging convictions in cases which relied “solely” on the credibility of a tainted police officer, and in cases where a prosecutor’s misconduct was found to be “intentional.”

Farhadian Weinstein and Crotty, the two candidates who didn’t endorse the letter, did not commit to purging any convictions. Farhadian Weinstein offered that she would set up a “presumption of vacatur for convictions” where “egregious acts” played an “essential role.”

During her tenure at the Brooklyn DA’s office from 2018 to 2020, Farhadian Weinstein was involved in the leadership of a unit that worked on exonerating wrongfully convicted individuals. The unit’s exoneration rate was fewer than two per year, a significant drop from the rate in the years before Farhadian Weinstein’s tenure, New York Focus and The Appeal reported last month. 

Ending single-witness NYPD prosecutions

Ending prosecution of single-witness NYPD cases is a priority of some criminal defense attorneys, who say that such prosecutions accentuate racial biases in policing and enable abusive practices such as “buy and bust” stings, in which police officers pose as drug-dependent individuals or drug dealers in order to persuade someone to make an illegal drug sale.

“District attorneys should not prosecute those cases,” Appling said of single-witness officer prosecutions. “[Police] arrest based on bias. The DA can stop those biased arrests by not prosecuting police-only complaints. It would be a step towards racial justice.”

Two candidates—Orlins and Lang—said they would not prosecute cases in which the only witness was an NYPD officer. 

Aboushi said that such cases would be “exceedingly rare,” though she did not rule them out, and that the officer’s testimony would be “subjected to rigorous scrutiny.” 

Farhadian Weinstein and Crotty also said they would continue to prosecute such cases. Florence said the issue of credibility would be ameliorated by the widespread adoption of officer-worn body cameras, but she did not address the question directly.

Whatever policy changes the next DA chooses to implement to promote greater police accountability, the true test of commitment to reform will be whether they enforce and stick to them in the face of likely opposition, said Zamir Ben-Dan, a staff attorney at the Legal Aid Society.

“One of the things I’ve seen is that you have so-called progressive prosecutors talk nicely, but their line assistant district attorneys don’t get the message, so you have line ADAs who nonetheless believe whatever a cop tells them,” Ben-Dan said.  “As long as there are people who do that, there isn’t going to be change in the DAs office, no matter how much the head professes to be about change.”  

“There needs to be a change within the entire culture of the office where it’s made crystal clear that we do not take the word of police officers as gospel.”

The post On NYPD Oversight, Manhattan’s D.A. Candidates Are Split appeared first on Bolts.

Alvin Bragg, who recalls being held at gunpoint multiple times in his life by both civilians and police officers, is now challenging the idea that concerns for safety make people turn to tough-on-crime policies. Instead, the Manhattan DA candidate says, aggressive practices by the NYPD and the city’s criminal legal system worsened the issues he faced growing up in New York.

“I grew up being stopped and harassed under a broken windows theory [of policing],” Bragg, who is running in next week’s crowded Democratic primary, told the Appeal: Political Report in a wide-ranging Q&A. “And I can tell you, it alienated me and others like me who you might need later as a witness to something. You’re undermining community trust and the pursuit of public safety because you’re alienating the very people you will be relying on.” 

The Political Report interviewed Bragg shortly after a New York Times column featuring one of the foremost champions of broken windows policing, former NYPD commissioner Bill Bratton. Bratton tied the recent rise of homicides in New York City to the successes of the “defund the police” movement, even though murders have risen in many localities that increased police funding. 

Asked about Bratton’s comments, Bragg denounced how critics of reform foment quick backlash toward any policy proposal. “I think the word ‘defund’  is being used as a shield to ward off having a substantive conversation and talking in detail about specific reforms that merit discussion, and not just reflexively rejecting them,” he said. He added that he wants to “use the different levers of government to address issues in a non-carceral way, and I would submit a more impactful way.”

Over the course of the interview, Bragg detailed his support for reforms such as taking the NYPD out of responding to mental health calls, improving the access to parole of people who are incarcerated for long periods, and declining to prosecute some categories of low-level arrests such as stand-alone charges of resisting arrest. 

Bragg expects his policies to mark a “significant” decline in the volume of cases that his office would prosecute. Unlike some of his progressive opponents, though, he says he does not support a concurrent reduction to its budget. 

He also stopped short of other candidates’ vows to decline to prosecute a longer list of charges, such as simple drug possession. He says he wants to steer such cases toward diversion programs that could avoid conviction and jail time, but that it would be valuable for the DA’s office to remain involved and condition a dismissal of charges on people’s “good faith participation” in treatment programs. 

Bragg is a former federal prosecutor and a former deputy attorney general in New York, and now works as co-director of the New York Law School’s Racial Justice Project. 

Manhattanites will not be using ranked-choice voting to select their DA, as they will be in the mayoral race on the same day. That means that they can choose only one candidate, and many contenders have laid claim to the progressive mantle, leading to a complex waltz of endorsements and strategic planning. In February, an organization of public defenders hosted a forum featuring four of the candidates (Bragg, civil rights attorney Tahanie Aboushi, public defender Eliza Orlins, and Assemblymember Dan Quart) to dig into what separates the most progressive contenders when it comes to reducing incarceration and criminalization.

The Political Report’s interview with Bragg is its fourth with a DA candidate, fleshing out views about reform and mass incarceration in depth. It follows earlier interviews with Aboushi, Orlins, and Quart. Appeal Live, The Appeal’s video vertical, also hosted a forum featuring the eight candidates running for DA. 

This interview is condensed and lightly edited for clarity.

— — —

In a much-circulated New York Times article, former NYPD Commissioner Bill Bratton linked “rising crime” to what he said is the “‘defund the police’ movement” getting what they want. [Context: Many cities that increased their police budgets have also seen a homicide increase.] Unsuccessful candidates who’ve recently run against criminal justice reforms have made similar arguments. What is your view on the connection that people like Bratton are drawing between crime rates and reforms or calls to shift resources away from policing?

For me, I’ve lived through all of this. I can tell you that in the 80s when I was growing up, when we were incarcerating more, I was not safer. Obviously, I’m concerned about gun violence. I’ve had two shootings very close in time to each other within three blocks of me. I’m still living in a neighborhood that is being affected by this. But talking in a data-driven and evidence-based way is important. I’d like to see data as opposed to just some atmospheric musings. When we talk about shifting money, I cannot see how changing homeless sweeps, which is a significant amount of the city budget for the NYPD, to people who work with homeless shelters connects with the uptick in gun violence. Sometimes a reform passes and within a matter of days, they’re saying, “Oh, it’s caused something.” It’s not cogent. 

I think we need to talk in specifics. When I talk about the police budget, I talk about homeless services, I talk about mental health responses, I talk about police in schools. I think the word “defund” is being used as a shield to ward off having a substantive conversation and talking in detail about specific reforms that merit discussion, and not just reflexively rejecting them.

When you say the specifics on mental health responses: There have been calls for the police to not respond to mental health crisis calls. Is that a change you would support?

Exactly. We have models in other places in the country where that’s been successful. We know that we have people who work for the city who are trained in mental health or mental health professionals. Using the core competencies of people who have the training in something, rather than reflexively using the police for something. And look, this is sometimes a matter of life and death: Many people killed by police officers start with a wellness or mental health call.

In his career, Bratton has also been a proponent of broken windows policing. On your website, you take a different approach. You write: “We will not deter serious and violent crime through arrests for petty offenses.” Where do you think his vision falls short? 

I grew up being stopped and harassed under a broken windows theory. And I can tell you, it alienated me and others like me who you might need later as a witness to something. You’re undermining community trust and the pursuit of public safety because you’re alienating the very people you will be relying on. That’s the first big issue. 

Second, we need to separate out the responses. I grew up in a neighborhood that was underinvested in. So yes, fix the window, that’s great. But that is different from “incarcerate.” 

I’ll give you an example. The NYPD decided to enforce untaxed cigarette sales, and they went street corner to street corner at great detriment to community trust, with the example of Eric Garner, he was breaking up a fight and ended up losing his life. We tax cigarettes for a reason, we want to deter smoking. But how can we do this effectively, and in a way that does not come at a great cost the way the NYPD is doing it? When I was at the attorney general’s offices we sued Federal Express and UPS—they were shipping thousands of untaxed cigarettes—and got back $100 million in tax revenue. We addressed an issue without incarceration, and without the costs to human dignity and community trust. So just thinking about how we can use the different levers of government to address issues in a non-carceral way, and I would submit a more impactful way.

To your point about responses, there are many differences in the paths available to prosecutors that stop short of incarceration. On your website, you say: “Any person charged with a misdemeanor that will not be dismissed outright will be offered diversion if it is legally possible.” Can you walk me through the choices involved here? When would you keep people out of the criminal legal system altogether, and when would you use your office’s prosecutorial power to push them toward diversion programs?

The policy on the website breaks up those components, what we will decline versus what we will divert. Our declination policies are things that just don’t don’t affect public safety, that we would outright not prosecute. Trespass, arising out of my experiences having loved ones arrested repeatedly for visiting friends in public housing. Driving with a suspended license, arising from fines and fees. Resisting arrest as a stand-alone offense—you see that used as a pretextual charge: What was the arrest you were resisting? 

But there are other matters we will divert. Most are going to be drug possession and petty larceny. There are some charges, which are not eligible for a desk appearance ticket (domestic violence, sex offenses, DWI), and those would not be by law eligible for the kind of diversion we’re talking about.

Let’s pause on drug possession. Your policy, as you noted, is that you would steer those cases toward these diversion programs, which may condition avoidance of a criminal record on fulfilling certain steps. Some of your opponents say they would outright decline to prosecute drug possession. Can you speak about that contrast? Why do you prefer pursuing such cases rather than declining them, even if through diversion? One critique of diversion options has been that it can be counterproductive to force people into treatment programs in a manner that’s effective. 

My father struggled with sobriety, and I’ve been to rehabilitation facilities to visit him, so I approach this as a public health issue. But I do think that offering diversion for treatment is what we should be doing, mindful of the limits and doing it in a much more flexible way.

In our plan of how to do it, we talk about doing adjournments so that it’s not the court schedule driving a program but the reverse. We talk about the limits of the drug courts. I certainly understand we can’t have what happens now, by and large, where someone doesn’t complete a program and then has the book thrown at him. 

To the extent you would condition not pursuing a conviction on certain steps, would it be something like entry into a program, or else a higher threshold like completing it?

I think it’s good faith participation. I think this is very case specific, and to be guided by medical professionals. So having a path that doesn’t have the court schedule or the prosecutor dictating, but listening to professionals.

Criminalization is also at issue with homelessness. Charges like trespassing are often used to arrest and prosecute homeless people. Do you think the criminal legal system has any role to play when it comes to how the city responds to homelessness? If so, what is it, and if not, what should replace this?

This is first and foremost a human dignity issue, it’s first and foremost an issue about shelter. That is the primary solution, and that should come from City Hall and from a different part of government that is not the criminal system. Now we are using Rikers as a conduit for housing, supportive services, and health services. With that said, as DA I’d be helping to drive that conversation by saying this is not a policing, public safety issue, this is a housing, shelter, mental health issue.

More broadly, so much of what the NYPD and the Manhattan DA’s office are engaged in involves lower-level offenses. The New York Times pointed out that “nearly 80 percent of the cases prosecuted there in 2019 were misdemeanors.” To what extent would the declination policies you describe shrink the overall footprint or volume of cases the office is prosecuting? 

I expect the overall volume to decrease. If we look at the docket, much of that has little to do with public safety. We shift away from things that don’t have anything to do with public safety, and we address racial disparities in the system. Certainly I have talked about focusing prosecutorial resources on things like gun trafficking, violent sex offenses. But I think on balance we’re still talking about a very significant trend.

Would you support a reduction of the budget that the DA office gets in light of what you’re saying is a decrease in volume of cases?

There’s too much to do for public safety for me to make that commitment. We obviously have what may be the most consequential prosecution in local history. We’ve also done harassment cases, labor wage cases, and I know what it takes to build them. I know how time intensive and resource intensive it could be. There really is work to do making the criminal law work for those who have been marginalized. 

I’d like to return to my initial question, which was asking you about homicides. When it comes to homicides and other higher-level crimes, what do you think should change to prevent violence before cases make it to your office? What do you think of DA [Cyrus] Vance’s tenure on this front?

I’m very concerned about the gun violence I’m seeing. I know about this personally. I’ve had a semi automatic weapon pointed to my head, and I’ve also looked into the eyes of a loved one shortly after his best friend was gunned down and killed in front of him. We need to be doing more. When I was at the attorney general’s office, we built a portal showing the path of guns coming in: Every single gun in a crime scene, we traced it back to its last lawful sale. We also need to scale up our reliance on community intervention groups, community interrupters, folks who are going to hospitals, folks who are stopping retaliation. We also need to bring cases where someone is shooting and doing harm. It’s an all-of-the-above approach.

You have said you oppose sentences of life without parole, but many people are serving other very lengthy sentences that are virtual life sentences, with large obstacles to their eligibility for parole and their ability to obtain it. There are debates right now in New York on expanding parole for elderly people. How would you address these issues regarding parole and life?

I support those measures in the legislature. I think our parole system is certainly not operating the way it should be. But it’s being an active leader, not just supporting legislation, but using the role as a DA to say we’re going to join with these applications, certainly not going to oppose them. I think that would be a real sea change: Right now, the DA writes a template letter opposing parole. We’re gonna do the reverse.

The association of New York prosecutors, DAASNY, has been central to the pushback against reform that we’ve discussed, but you have said you would stay in DAASNY. Why is that?

For far too long, people who look like me have been kicked out of rooms, and so I’m not going to self-segregate myself. I’m going to be in the room, and I’m going to be heard, and I’m going to voice opposition. I believe strongly in robust dialogue and exchange of ideas, and if my voice is not to carry the day—and I’m not naive, I’m not suggesting I’ll carry the day all the time—then I’ll speak out as I have.

There are few DAs in New York whose politics are aligned with reform goals. Do you think there is such a bloc, and if not, how would you wield internal influence within DAASNY? 

I don’t know that we have that bloc in New York State. But I have had conversations about a regional association with other local prosecutors up and down the East Coast with whom I feel some kind of common interest in views. 

Some of your opponents have not worked as prosecutors, and they say it is important for the next DA to be an outsider to the prevailing practices of prosecution. How do you respond to that? 

Much of what other candidates are talking about wanting to do, I’ve done. Harassment, wage and hourly work, police accountability, I’ve worked in that space. What I think is the most important in terms of reform is, where is it coming from? This is my life’s work. No other candidate has lived every day dealing with the system from many perspectives: I have been stopped at gunpoint by the NYPD, my 11-year-old son is concerned about wearing a face mask lest he be confused by the NYPD as a robber, my brother-in-law lived with me for a year plus after he was incarcerated. People can study and know about re-entry, but when you got someone on your couch, looking for work, that’s different.

The post How Alvin Bragg Rejects Bill Bratton and Broken Windows Policing appeared first on Bolts.

This article is part of a partnership between New York Focus and The Appeal: Political Report to cover Manhattan’s 2021 DA race. Read our first articles, on the war on drugs, statewide advocacy, and sex work.

Jose Saldana spent 38 years in New York’s prison system after a Manhattan court found him guilty in 1980 of attempted murder of a police officer. He was denied parole four times. Each time he was denied, and again at the parole board hearing that led to his release in 2018, Manhattan District Attorney Cy Vance submitted a letter asking that he not be granted parole.

Parole commissioners mentioned the letters at all five hearings, Saldana recounted. None of the letters spoke to the person he was after decades in prison, he said; none mentioned the remorse he felt about his crime, the associate’s degree he’d earned, or the many younger incarcerated people he had mentored.

“He would oppose my release just on general principle, not knowing a damn thing about me, 30 years later,” Saldana said of Vance, adding that his experience is common among people convicted by the Manhattan DA.

Saldana is now the director of the Release Aging People in Prison (RAPP) campaign, which advocates for New York to expand early release for people who face the risk of dying in prison. This is a strikingly common fate in the state: Approximately 8,000 people are serving life sentences in New York today—nearly a fifth of the state’s prison population. Eighty percent of them are Black or Latinx.

The DA election in Manhattan looms large in advocates’ efforts to change the state’s culture around incarceration. Vance is not seeking re-election, and eight candidates are running in the Democratic primary on June 22 to replace him. 

Many of these candidates told New York Focus and The Appeal: Political Report that they would roll out new policies to reduce life sentences or very lengthy sentences.

They are making the case that people change and deserve second chances. Data shows that older people are far less likely to commit crimes. Lengthy prison sentences cost immense amounts of money, and there is little evidence that they significantly deter crime. 

Several candidates said they would never oppose someone’s parole application, echoing a new policy rolled out this year by New Orleans’s progressive DA, and most said they would support many more applications than at present. Some candidates said they would restrict if not prohibit their staff from seeking new sentences that exceed 20 years, let alone life sentences.

Such reforms would represent a major break from prevailing practices in the Manhattan DA’s office, public defenders and legal advocates said.

“For years, the Manhattan DA has been up-charging, pushing for long and life sentences, and opposing mitigation and alternatives on the front end and parole on the back end,” said Katie Schaffer, director of organizing and advocacy at the Center for Community Alternatives. 

“A new DA committed to shrinking the size, scope, and harm of the office could limit the number of New Yorkers whose lives and families are torn apart by carceral responses.”

Death by incarceration

Seven of the eight candidates running for DA—all but former prosecutor Liz Crotty—spoke to New York Focus and the Political Report for this story. (Crotty did not respond to requests for comment.) All seven vow to take some measures to impose fewer life sentences, but there are sharp differences in the scope of their approaches. 

For advocates who want to bring down the nation’s sky-high incarceration rate, there is no way around targeting the ease with which the criminal legal system imposes life sentences or decades-long sentences that may also condemn a person to die in prison. New York imprisons more people for life, as a proportion of its population, than countries like Germany or Japan imprison people at all.

“We won’t eliminate or even make a serious dent in mass incarceration without dealing with these deep-end sentences,” said Ashley Nellis, a senior research analyst at the Sentencing Project and co-author of a book on life imprisonment.

Because sentence lengths tend to be determined in relation to each other—with shorter sentences set on robbery than on homicide, for example—reducing the lengthiest sentences is the most effective way to reduce incarceration rates as a whole, Nellis explained.

Lawmakers in Congress and in various state legislatures have proposed reforms to reduce life imprisonment, including for violent crimes. But until such changes come to New York’s court system, its DAs will continue playing an outsize role in whether the status quo changes.

Sentences in New York are officially set by judges. But they generally correspond to the charges that defendants face, and prosecutors have extremely wide discretion in deciding what charges to bring, if any, against arrestees, as well as what sentences to recommend to judges.

Attorneys who practice in New York told New York Focus and the Political Report that Vance’s office has not used its power to turn the tide against life sentences.

“There is no policy or practice in place [under Vance] to avoid maximum sentences, to avoid sentences that go over 20 years, to avoid life sentences,” said ElizabethFischer, a public defender with Neighborhood Defender Service, an organization based in Harlem. 

“The current DAs office uses their discretionary power to charge the highest possible charge on which they think they can get an indictment,” Fischer continued. “In cases where a life sentence is authorized, more often that not, the life sentence is the offer or recommendation from the DA’s office.”

Vance’s office did not respond to multiple requests for comment.

But these sentencing practices could shift significantly next year, when a new DA will take office.

Asked about their approach to lengthy sentences, many candidates challenged the imposition of prison sentences of more than 20 years. Last year, voters in places like Los Angeles and Austin, Texas, elected prosecutors who ran on curbing sentences that exceed that length. Now some Manhattan candidates are drawing even starker lines in the sand.

Two candidates—civil rights attorney Tahanie Aboushi and public defender Eliza Orlins—went the furthest, committing to never seek sentences of more than 20 years. 

Assemblymember Dan Quart said he would set up a “rebuttable presumption” of not seeking a sentence longer than 20 years, adding he would be “unlikely” to overturn it; he has told the Political Report he would consider doing so in “extreme cases, such as mass shootings and domestic terrorism.” A spokesperson for Alvin Bragg, a former chief deputy attorney general for New York, said he would make 20 years a “default maximum sentence,” though the campaign did not specify under what circumstances he would veer from that default.

Aboushi, Bragg, Orlins, and Quart also say they would never seek sentences of life without the possibility of parole. 

“Life without parole is a death sentence, and it’s capital punishment by different means,” Quart said. Aboushi mirrored this position: “Like the death penalty, life without parole labels a person as nothing more than the worst thing that person ever did and ignores the reality that everyone is capable of growth, change, and rehabilitation.”

The remaining candidates, former prosecutors Lucy Lang, Diana Florence, and Tali Farhadian Weinstein, made no mention of a 20-year threshold. Still, each said they would rarely seek the maximum sentence allowed by law. Farhadian Weinstein and Lang also said their default policy would be to seek the minimum sentence that falls within sentencing guidelines, though they did not specify in what cases they might seek longer or maximum sentences. In addition, these three candidates did not rule out seeking life without parole sentences.

Commitments to generally seek minimum sentences are less bold than they sound, Fisher warned, because mandatory minimum statutes can trigger lengthy sentences under some circumstances, depending on the charges a prosecutor has filed.

For instance, “felony enhancement” statutes mandate long periods of incarceration for second and subsequent felony offenses. Prosecutors could sidestep these by filing misdemeanor rather than felony charges when prosecuting individuals with prior felony convictions—by charging possession of half a gram of cocaine, for example, as a misdemeanor rather than as a felony potentially carrying a sentence up to life imprisonment sentence for third or subsequent felony offenses. 

Six candidates—Aboushi, Bragg, Florence, Lang, Orlins, and Quart—said they would make efforts to avoid felony enhancements by charging misdemeanors instead.

Farhadian Weinstein, though, expressed skepticism toward prosecutors lowering charges to make a sentence less harsh. “I believe in truth in charging—we must bring the charges that fit the facts,” she said.

Rigodis Appling, an attorney with the Legal Aid Society, said prosecutors’ charging decisions testify to their values when it comes to incarceration. Typically, she said, Manhattan prosecutors respond to the facts of a case by “taking a perspective that is the harshest you could take when looking at those facts.”

Another choice that Manhattan prosecutors sometimes make is opposing the “youthful offender” status for children whom they are prosecuting as adults.” The designation is a legal framework available for minors that limits the possible felony sentence length to four years and automatically seals the child’s record. Without it, the child would face a lengthy sentence.

“Supporting youthful offender status in every case would have a tremendous effect on young people’s ability to overcome criminal legal system involvement and lead successful, productive lives,” Fishcer said.

Bragg, Quart, Aboushi, Orlins, and Lang said they would always support granting “youthful offender” status to minors. Farhadian Weinstein and Florence said they would generally or presumptively support this status, though they left the door open to opposing it.

Beyond the courtroom

To make a dent in the large prison population serving life sentences in New York, advocates say, any new strategy would need to include releases of people who are already in prison. Here, too, a DA can stand in the way or facilitate the process. 

The letters to parole boards that DAs often write to support or oppose parole applications can be very influential. 

Legal practitioners say Vance has been reluctant to write letters of support. Saldana added that Vance’s office “routinely” contacted parole boards to oppose applications like his own.

Saldana thinks it would make a difference if the next DA was more supportive of applications, or at least was willing to get out of the way. “The parole commissioners are of like minds, and anything they can hang their hat on to deny someone [release], they will,” he said, explaining why a single letter by a DA’s office that prosecuted the case decades earlier can have such weight.

Aboushi, Orlins, and Quart told New York Focus and the Political Report that they would never step in to outright oppose a parole application, even when they do not support it. 

“I have seen firsthand how the current Manhattan DA’s office’s policy of writing letters that strongly oppose the early release of a person who is incarcerated has been devastating to families and communities across our city,” Orlins said.

Florence said she would oppose applications from people convicted in some extreme cases. Farhadian Weinstein mentioned a policy she worked on while general counsel in the Brooklyn DA’s office that required prosecutors to obtain supervisory approval to oppose an application, but she did not answer a follow-up question on whether she would ever oppose applications as DA. Bragg and Lang did not address whether they would ever oppose parole applications.

Asked how they would change current practices on when to actively support an application, four candidates—Aboushi, Bragg, Lang, and Orlins—said they would make it a “default position” or a “presumption” to support applications. They mostly did not specify the circumstances that would limit that presumption, though Aboushi mentioned “evidence of recent, violent conduct in prison,” and Lang mentioned the highest-level offenses such as serial murders. 

Farhadian Weinstein said she would establish a default of supporting parole applications in cases where incarcerated people had pleaded guilty, noting that she helped institute such a policy in the Brooklyn DA’s office. In 2019, Brooklyn DA Eric Gonzalez announced a default policy of supporting applications for people who pleaded guilty and then maintained a clean disciplinary record in prison, saying his office used to “ordinarily oppose” applications and that his new policy would “reflect the bargain we made with” people who pleaded guilty.

But Appling, of the Legal Aid Society, worries that making it more likely that someone can achieve parole if they plead guilty amounts to a “trial tax,” referring to the common practice of seeking harsher terms against individuals who take their case to trial instead. “The only reason I can think of is to coerce [guilty] pleas,” she said, explaining that it may add to the pressure to forgo a trial.

Florence and Quart laid out no rule or presumption on when they would step in to support parole applications.

—

If the next DA were to make a serious effort to reduce sentences, avoid enhancements, and support parole applications, the effect would be transformative.

And it could reverberate far beyond Manhattan. Reform advocates are pushing New York lawmakers to increase opportunities for parole for incarcerated people over 55, a reform known as “elder parole,” and pass other bills that would increase parole eligibility for all incarcerated people. 

Theresa Grady, an activist with the RAPP campaign, hopes that the next Manhattan DA will join those efforts. 

“I’ve seen people go into jail at 25 years old, and when you see them in another year or three years, they’re looking like 55 already,” she said. “Hopefully, with a new progressive DA, it will be that they look at them in another light, and see that it doesn’t have to be long sentences.”

Note: The text and the accompanying graphic have been updated with additional information about candidates’ positions on the maximum sentences they would pursue.

The post Some Manhattan D.A. Candidates Draw A Line Against Life in Prison Sentences appeared first on Bolts.

Manhattan District Attorney Cy Vance said on Thursday that he would seek to vacate 100 convictions that were obtained via the work of NYPD officer Joseph Franco, who is indicted for perjury and falsifying testimony. The Brooklyn DA had made a similar move a week earlier.

But these rare announcements—targeting one police officer who left behind such an explosive trail—cannot conceal the serial pattern of New York DAs depending on officers they already know to be unreliable in order to keep locking people away, as The Appeal and other outlets have long documented. Franco’s own history shows what prosecutors have to gain from this. Most of his cases that are being vacated ended in guilty pleas. The weight of an officer’s testimony can pressure defendants into taking a prosecutor’s deal rather than challenging the officer at trial. And when the actions of line prosecutors come under scrutiny, their bosses tend to fight oversight or isolate the allegations.

“This is the system working as designed,” Eliza Orlins, a career public defender who is running for DA in Manhattan, told The Appeal: Political Report about Franco in a Q&A.  

Orlins is making the case that voters need to elect someone who has never been part of what she called the “prosecutorial-industrial complex” to overhaul this system.

The crowded field includes other candidates who have never worked as prosecutors, namely civil rights attorney Tahanie Aboushi and Assemblymember Dan Quart. But Orlins notes that she is the only candidate with a background as a public defender, so she has spent her “entire career going up against the Manhattan DA’s office.” 

“As a public defender, I have seen the way that my clients who are predominantly Black and brown people are treated by the criminal legal system,” she said. “They’re more likely to have money bail set on them pretrial, more likely to receive higher plea offers that result in incarceration, more likely to be charged with drug possession or some of these low-level offenses.” 

Orlins said she would not seek tougher sentences against people who refuse to plead guilty, with an eye to ending the practice of incentivizing defendants to take a plea offer. She laid out why she would stop seeking cash bail and only seek pretrial detention in “extreme circumstances.”

Orlins, like some of her opponents, is also making the case for significantly downsizing the scope of prosecution—the vast majority of current cases, she says, involve things that the criminal legal system should not be concerned with. She vows to outright decline to prosecute many misdemeanor and low-level felonies including sex work, as well as drug possession and low-level drug sales. “Public health problems like substance use disorder, should be addressed in public health sectors and not within the criminal legal system,” she said.

On the other hand, she says she wants to ramp up prosecuting some offenses, including labor and environmental crimes and violations of labor rights, in the name of broadening what is seen as a threat to public safety. “Safety should be defined as the ability to live, to live without fear and be provided for,” she said. 

The race to replace Manhattan’s retiring DA, Cy Vance, has been shaped by debates on how the next prosecutor can best bring about criminal justice reform and decarceration. In February, for instance, an organization of public defenders hosted a forum featuring four of the candidates (Orlins, Aboushi, Quart, and former deputy attorney general Alvin Bragg) to dig into what separates the most progressive contenders.

This is the Political Report’s third Q&A with a Manhattan DA candidate, following interviews with Aboushi and Quart. The Political Report is also probing the direct contrasts between them with a series that has so far covered the war on drugs, sex work, and statewide advocacy.

The interview has been condensed and lightly edited for clarity.

—

The Brooklyn DA announced last week that he would seek to vacate 90 convictions in cases involving police officer Joseph Franco, who is accused of perjury. By contrast, when news broke last week that prosecutors had withheld evidence in a case in Queens, the DA declined to review their past cases. What do you make of these decisions, and how would you handle past cases that may involve misconduct? [Note: This interview took place before the news on Thursday that the Manhattan DA would seek to vacate 100 cases that involved Franco.]

I’m absolutely appalled by the revelation that Franco lied in 90 cases, and I’m glad that [Brooklyn] DA Gonzalez is dismissing those cases, but Franco is not unique. 

As someone who spent my career as a public defender, I know that these cases are not an anomaly or an aberration, and that there is so little accountability for police officers who lie. I have seen that time and time again. Even when I’m able to show proof that they were lying, the best case scenario is that the case gets fully dismissed but typically it results in no accountability for the police officer. That officer is allowed to continue to operate, testify, and make arrests. 

This is the system working as designed, and it’s going to continue unless we change the way the system is actually working. 

And how frequently do you think similar issues exist within the ranks of prosecutors? 

Prosecutors for far too long have been able to also operate with impunity, to uphold this system and be complicit in this continuing misconduct. And overhauling the system means holding prosecutors accountable as well. There has to be someone there who is an outsider, someone who has not played an active role or held a position of leadership in a prosecutor’s office. 

I am really excited to be able to take on this role as the only public defender running. We can’t entrust these reforms that are so desperately needed to career prosecutors. As the only person who spent my entire career going up against the Manhattan DA’s office, I know exactly the ways in which we need to bring about this systemic change and what I would do to change things.

So, if the issue goes beyond accountability for specific officers or prosecutors, how will you go about questioning past cases more broadly?

The DA must be proactive. That is why I have proposed a conviction review unit that is fully independent, one that doesn’t just look back on cases years or decades after the damage has been done but is ensuring in the moment that these cases are justly executed. One that protects against wrongful convictions, broadly defined: In many cases, someone is facing long-term incarceration for something where the law has changed, it’s been decriminalized, it’s something I’m declining to prosecute, it’s associated with a prosecutor or a police officer who is known to have committed misconduct. This has to be a broad, overreaching review.

We know that prosecutorial decisions compound racism in the legal system. Studies have shown that in New York, Black people are more likely to receive pleas or sentences that carry jail or prison time. How would you change the handling of prosecutions to confront this?

As a public defender, I have seen the way that my clients, who are predominantly Black and brown people, are treated by the criminal legal system. They’re more likely to have money bail set on them pretrial, more likely to receive higher plea offers that result in incarceration, more likely to be charged with drug possession or some of these low-level offenses. 

That’s why I’ve put out a robust decline-to-prosecute policy: Not prosecuting the overwhelming majority of misdemeanors and low-level felonies will make a huge difference, as well as abolishing money bail and using pretrial detention only in the most exceptional circumstances, and not replacing money bail with some dangerousness standard or risk algorithms that we know are also systematically racist. 

And what we can do is have an ongoing analysis that is really public and transparent, so that if there are any disparities we are addressing that in the moment.

You mentioned limiting pretrial detention. You say in your platform that you would set  a “presumption of release in all cases.” What are the factors that will determine whether and when your office honors that presumption, or lifts it and recommends pretrial detention in a given case?   

In New York, bail can only be based on a person’s risk of flight. Under my leadership, the Manhattan DA’s office would only seek pretrial detention in extreme circumstances — as in, for example, those rare cases where someone’s wealth, means, resources, connections, and/or ability to flee the jurisdiction are so significant that no set of release conditions (including extensive pre-trial supervision, which would also only be requested in extreme circumstances) would be extremely unlikely to mitigate them. Any request for pre-trial detention would have to be made directly to me or one of my high-level supervisors.

This policy, coupled with your vow to never seek cash bail, goes further than the 2019 bail reform, which was fought by police unions and many of New York’s DAs; they said increased pretrial releases posed risks to public safety. How would you respond now to those arguments made by other prosecutors, and how would you prepare to answer similar pushback if you were elected?

We know how damaging the Willie Horton effect is, and that one exceptional circumstance is often used to then create this long-term, very damaging narrative. But we have to make sure that this doesn’t impact the way that we talk about these things. Money bail is deeply discriminatory, it doesn’t prevent crime, it’s not necessarily to ensure someone’s return since there are many less restrictive alternatives available, and it fundamentally destabilizes people’s lives. 

We’ve been sold a false choice between public safety and incarceration. As Americans, we’ve been told the only way to keep our community safe is by locking people up, even if it’s pretrial, even if they’re supposed to have the presumption of innocence.  The presumption of innocence is only really applied to people who have the money to buy those freedoms.

This presumption of release has to apply to everyone. You should be at liberty when you fight your case. People who are at liberty have better outcomes in their cases. They’re more likely to continue to fight their case and find out more evidence along the way; they’re able to continue to go to work, to put food on the table for their family. 

In your platform, you focus on the importance of ending the “trial penalty,” which means not seeking a heavier sentence at trial against people who refused a plea deal. In your experience, how does this practice harm defendants, and how would this change make for a fairer system?

The overwhelming majority of cases result in pleas of some sort, and most of it is because of the system’s unbelievably coercive nature. Many times, I’ve had clients who were unconstitutionally stopped or searched. We’ve gotten up to the brink of a hearing on that, and then the DA would say, “We’re offering probation now, but if we do this hearing we will be recommending the minimum on the top charge of the indictment,” and my client has to decide between risking years of incarceration or challenging what we know was an unconstitutional stop and search. It is critical that someone should have the right to challenge the constitutionality of a search or seizure, that they should be able to exercise their right to go to trial and cross examine witnesses against them, without the overwhelming fear of this massive penalty if they choose to do that. 

In terms of resources and time, the criminal legal system processes this large a volume of arrests and cases by relying on people pleading guilty. How would you ensure you’re not stuck managing a system that is administratively dependent on keeping up that premise and on pressuring people to plead out? How would you break that logjam?

The system, as it is working right now, does require pleas in order to keep going because it churns so many cases. When I’m elected, it will likely and hopefully produce an increase in the number of cases that go to trial: People should have that right. And the way in which we’re going to make sure that doesn’t create some backlog is by declining to prosecute what we estimate to be around 70 percent of the cases that are coming through, cases that never should have been in our criminal legal system to begin with. We will be able to accommodate trials when people want to exercise their right to go to trial or challenge the constitutionality of a search.

Let’s talk more about your platform of declining to prosecute many offenses, which includes categories like sex work and drug possession. Why do you think this is the best approach for a DA to take regarding lower-level arrests?

To the extent that someone needs services, they should be able to opt in and have those services provided to them independent of and outside of the punitive structures of criminal court. 

Public health problems, like substance use disorder should be addressed in public health sectors and not within the criminal legal system. Diversion courts or problem solving courts, are another net-widening intrusion into people’s lives. 

Some prosecutors talk of those same courts and programs as modes of reforms. So can you say more about why you see them as punitive and how you saw that play out in your own cases, for instance when it comes to substance use?

With regards to drug treatment courts, first of all, you have to beg to get into them: I have had clients who signed HIPAA releases so that every medical record they have ever had in their entire lives can be turned over to the DA’s office to review; then the DA’s office has still found that they don’t think this person is worthy of participating in a treatment program. Even once they’re in, there’s such a lack of understanding of what it means to go through recovery: You get penalized for any regression and you relapse. In some of these courts, my clients have to pay out of pocket for the privilege of participating, and they have to waive constitutional rights; and then they face terms of substantial incarceration if they relapse or fail out of the program in some way. 

So how should New York State change its laws on drugs to be in line with your perspective? Oregon recently decriminalized drug possession, for instance. Should New York follow suit?

It’s so exciting to see progress across the country, and it’s thrilling to see that this is an issue that is coming to the forefront because the war on drugs has not kept us safe. It is my sincere hope that New York will follow in his footsteps of Portugal, of Oregon, to decriminalize all drugs. We need to make sure that people who need services are receiving them, and treatment is available. 

Drug possession is on the list of offenses you say you would decline to prosecute. In light of this perspective, how would your office handle drug sales?

Low-level drug sales are also something I would decline to prosecute. As a public defender, I’ve had clients who have been targeted by undercover police officers: They go up to and approach people who are clearly suffering from substance use disorder, pretend to be dope sick, beg for someone to hand over some of their own stash, and then an entire narcotics team swoops in. All of a sudden my client is facing years in state prison. 

But I haven’t categorically said that I would end prosecution of A1 drug sales. There are certain things that we have to consider in protecting New Yorkers, if kilos of fentanyl or heroin are being trafficked into Manhattan and someone is engaging in that.

We’ve talked about why you argue that in some areas the criminal legal system is used too broadly. You’ve also talked about ramping up the prosecution of some behaviors like housing fraud or labor rights. How do you negotiate the balance between those aspirations?

We far too often narrowly define public safety. Safety should be defined as the ability to live, to live without fear and be provided for. We also tend to exclude the safety to live in one’s home, to have enough food on the table, and to be able to drink clean water and breathe fresh air. 

We should be talking about holding corporations accountable when they break the law and when they exploit workers, when they put people’s lives at danger, or the slow violence of environmental crimes that take place over years or decades. 

I think the systemic over-prosecution of low-level offenses, and the systemic under-prosecution of some of these repeated larger crimes, result in a larger cumulative effect on public safety that I want to take on when I take office. Really, it’s standing up for the same people, the people who are the most hurt by so many of these systemic failures.

The post This Public Defender Has Fought the Manhattan D.A.’s Office. Now She Wants To Lead It. appeared first on Bolts.

Governor Andrew Cuomo’s handling of nursing home deaths in New York now threatens to derail his job, but his COVID-19 record had already been under fire in another area. He has defied calls to release incarcerated people and stalled on vaccinating them, compounding the deadly risks they face. And in New York City, where Mayor Bill de Blasio downplayed risks at the Rikers Island jail complex last year as infections were spreading rapidly inside, the jail population has been rising, subjecting thousands to dangerous conditions 

Assemblymember Dan Quart, who is running to be Manhattan’s next district attorney, visited a state prison with two other lawmakers in February to assess the crisis that incarcerated people are facing. In a new interview with The Appeal: Political Report, he faults the “systemic breakdown” in state and city officials’ response to COVID-19. 

It speaks to a “level of indifference” by public authorities toward people detained in prisons and jails, he says. 

Last week, I talked to Quart about how he would challenge this culture of indifference. Quart is one of eight candidates in the June Democratic primary to replace the incumbent Cy Vance, who has yet to indicate whether he is running for re-election

Quart vowed to change the DA’s office’s approach to punishment and rehabilitation by not seeking sentences of life in prison. “That’s capital punishment by a different form,” he explained. He says he would presumptively not seek sentences of more than 20 years, though he would consider longer sentences in “extreme cases, such asmass shootings and domestic terrorism.”

And he expressed support for proposals that would strengthen the rights of people while they are incarcerated, including by halting the use of solitary confinement and enabling them to vote. 

To reduce incarceration, he also said he would use the vast discretion of the DA’s office to stop seeking cash bail and to stop prosecuting a lengthy list of lower-level offenses that include drug possession, sex work, and turnstile jumping. His promise to “reduce the footprint of the office” is in line with other Manhattan candidates’ turn to declination as a core tool of reform. Quart indicated he wishes to cut the DA’s budget, but did not specify how much he would cut outright versus reallocating resources within the office.

New York reformers have repeatedly run up against the organized opposition of law enforcement groups and elected prosecutors. But Quart says he would use the office’s bully pulpit to fight against that opposition and advocate for statewide reforms that would advance decarceration. He pointed to his efforts as a legislator to end cash bail and facilitate conviction reviews, as well as his successful push to legalize gravity knives.

Ever since the campaign for Manhattan DA began, it has been defined by candidates eager to showcase their commitment to decarceration and criminal justice reform. Still, plenty of policy differences have popped up. In February, an organization of public defenders hosted a forum (called “The Race to Decarcerate”) with four of the eight candidates—Quart, civil rights attorney Tahani Aboushi, public defender Eliza Orlins, and former deputy attorney general Alvin Bragg—to dig into what separates progressives.

This is the Political Report’s second Q&A with a Manhattan candidate, following an interview with Aboushi last month. The Political Report is also probing the direct contrasts between them with a series that has so far covered the war on drugs, sex work, and statewide advocacy.

The Q&A has been condensed and lightly edited for clarity.

—

Daniel Nichanian: You announced earlier this year that you would visit state prisons to review the threat of COVID-19. How have New York officials, including the governor, done when it comes to protecting people in prisons and jails from the pandemic?

Dan Quart: Three weeks ago, I visited the Fishkill Correctional Facility in the Mid-Hudson Valley. It is very difficult to achieve any level of social distancing, even under the best of circumstances at our state correctional facilities. The biggest challenge is vaccinations, and the corrections department at Fishkill told us they were ready to vaccinate individuals there but they didn’t have a supply. Secondly, there’s a significant problem with an elderly population. Many people who’ve been cleared by the Department of Corrections for early release or release because of COVID protocols are still not being released, because they can’t find Medicaid-eligible beds in nursing homes or other places throughout the state. And that is a great failure on behalf of the state at all levels of government. 

Both at the state and the city level, there’s been a level of indifference to those who are incarcerated. They’re treated as third-class citizens, even though the COVID positive rates in our jails, in our state correctional facilities, is higher than the general population. There’s been a systemic breakdown in addressing this issue. 

Before the pandemic, there were already legislative proposals to enable early releases and to reduce the size of prisons. What do you think the state should be doing on this front?

There are two things at the state level. One is elder parole, which is just allowing people over a certain age to be parole eligible. It doesn’t actually release them, but it forces a hearing. The other part is sentencing reform and getting rid of mandatory minimums at all levels. 

But as district attorney, I can do more things in the courtroom to reduce incarceration. I would have a rebuttable presumption that there would never be a sentence more than 20 years; also decline to prosecute cases, which would get people out of the courtroom in the first place; and where possible, always ask for the minimum so that we are shortening those jail sentences on those occasions when we are seeking jail time. 

How will you also use the DA’s powers to also bring some relief to people who are already convicted and incarcerated?

That is the difficult part: I can do things prospectively much more easily than retroactively. To be honest, that requires action by the state, and I have legislation to that effect. Amongst the people running for DA, I’m in a unique position as the only legislator, so I think I would be the most effective DA in working with the legislature to ensure reforms I need to decarcerate.

One thing I can do as DA is create a conviction integrity unit that actually functions—it’s not functioning now under Vance. 

You mentioned restricting sentences of more than 20 years. The share of people in New York’s prisons who are serving a life sentence is among the highest in the nation. What would be your policy on life sentences, and where does your 20-year figure come from? 

We’re not going to ask for life sentences because life sentences are death sentences, and I don’t believe in capital punishment. That’s capital punishment by a different form, which I think is morally wrong, and I won’t do that. 

This process of a rebuttable presumption of 20 years is consistent with norms across the world on what is just punishment, which is why I set forth specific goals that the overwhelming majority of cases is going to be under 20 years. That’s also consistent with medical science and the concept of aging out of your violent phase, which essentially says that the 20- or 25-year-old who commits the crime, by the time he or she is in their mid 30s, they are physically a different person. To still punish them as if they’re that 20-year-old who is not fully formed is unfair. Also their recidivism rates by their mid 30s, if they’re released, are extremely low, because they are a more mature person. We would have sentencing policies consistent with those principles.

A “rebuttable presumption” leaves room for cases where you may seek sentences longer than 20 years, though short of life. What are cases where you may lift that presumption? 

Only in extreme cases, such as mass shootings and domestic terrorism, would I consider lifting this presumption.

And since many people are serving sentences longer than 20 years now: There’ve been proposals to end life without the possibility of parole and provide incarcerated people a hearing after some period of incarceration. Would you support legislation that would provide people a parole hearing after 20 years? 

Yes, I would support legislation to this effect.

A recent report by The Sentencing Project found that a majority of New Yorkers who are serving a life sentence are Black. How much do you think  prosecutors share responsibility for disparities like that, and how can you own up to that responsibility as DA?

Yes, much of the blame for the overpopulation of our state correctional facilities by people of color has to do not simply with the NYPD, but punitive prosecutorial practices. 

For seven years in the legislature, I fought to decriminalize something called gravity knives: This was used as a bump-up by Cy Vance to incarcerate individuals. Legal Aid said that 85 percent of those who were arrested on gravity knife charges were people of color. There is just one example of the discriminatory practices of arrest and prosecution implemented over the last 10 years by both law enforcement and this DA’s office. And I’ve achieved actual decarceral results by decriminalizing that specific charge. 

We’ve been mostly talking about the size of prisons, but New York’s jail population has been rising again during the pandemic. You have said you want to go further than the bail reform the state adopted in 2019, which was partially rolled back. Why did you find the 2019 bail reform insufficient?

I don’t believe in cash bail: I believe the connection between one’s wealth or lack of wealth in their liberty is immoral and not unconstitutional, and I wrote legislation four or five years ago to that effect. So I don’t think the original bail reform was appropriate. My view is to take the money equation or the bond equation out of the consideration, and that it’s not appropriate to consider money when determining whether somebody should be incarcerated pretrial or not.

How would you make sure that the end of cash bail doesn’t mean jailing more people without any option of getting out? That’s been a concern raised by reform advocates in some places that are pushing bail changes.

You’re right: Replacing cash bail with an expanded remand is not a solution. I would implement the system in Manhattan consistent with the legislation I wrote, which sets forth specific criteria in which we would seek pretrial incarceration. If someone’s a flight risk to leave the jurisdiction, if someone poses a physical threat to an identifiable person, or depending on the severity of specific felony charges, my assistant DAs would produce admissible evidence to that effect for the charge in and of itself and would seek remand. But in most cases, we would release people to go back to their homes, back to their communities. The pretrial systems in place are working; most people who find themselves in criminal court are going back to court. 

Law enforcement groups fought the 2019 bail reform that lawmakers then partially rolled it back. Your reforms, including not seeking cash bail, may well generate a similar reaction from them. What lessons did you draw from past conflicts for how you would respond?

This is the greatest distinction between myself and the seven other lawyers running for this office: I’ve been an elected official taking these positions, I’ve defended these positions in primary and general elections, where I was attacked for taking on these critical criminal justice reform issues. I think that should give comfort to Manhattanites that regardless of the criticism I will follow through on the reforms.

We were talking about the indifference toward the rights of incarcerated people earlier. One bill introduced in the last legislative session would restore the voting rights of people who are incarcerated, and another (HALT) would restrict the use of solitary confinement. What is your view on these bills?

I support both bills. 

On the solitary confinement bill: I have been a vocal and frequent critic of the way in which the Department of Corrections at the state level has not implemented reforms. This is an area where I think legislation is necessary because we simply can’t trust the Department of Corrections to implement these reforms on its own. 

One of your opponents who dropped out of the DA race in December, Janos Marton, had proposed dropping charges against defendants if he learned they were placed in solitary confinement. What is your view of that policy, and would you use that same threat as leverage to end solitary confinement?

It depends on what the charge is; it’s a case by case example. There are mechanisms within the DA’s office to try and ensure that someone is not in solitary confinement; I would liaison with corrections officials in the city or state to try and make sure that nobody was ever placed in a unit indicative of solitary confinement. 

—

You’ve released a list of offenses you would not prosecute if you become DA. Some DAs promote “alternatives to incarceration” and diversion programs, as part of pursuing charges. Why are you following this approach of declining to prosecute in the first place?

Alternatives to incarceration are still prosecution: The DA keeps the top count, ADAs are still assigned to the case, and you can’t reduce the footprint of the office because you still have resources in the case. 

I am setting a demarcation here with my list of charges that I will decline to prosecute. I’ll prioritize keeping Manhattanites safe, but expanding broken windows policing into the courtroom is not the way to do it. Arresting people on lower-level crimes or summonses doesn’t make us safer, and puts the police in conflict with communities of color, because for all sorts of reasons that’s where the arrests and summonses often are being written. 

I will help these individuals if they still want services. My office and social workers will liaison with not-for-profits who provide necessary services through the city budget. But that would be a voluntary service my office would provide if the individuals choose to avail themselves of it.

When you talk of reducing the footprint, to what extent are you thinking of the scope or the volume of prosecutions, and to what extent are you thinking of the actual resources that are going to go into the DA’s office? Would you work to shrink the funding of the DA’s office?

I’ve agreed to reducing the footprint of the office, and that requires a reduction of the budget. But I’ve also said that, until I take over in 2022 and evaluate the budget in each department, it would be irresponsible of me to talk in specifics about how much the budget should be reduced. 

One offense on your declination list is drug possession. At least one of your opponents includes drug sales on the list of offenses that the DA’s office should not prosecute. You have not included this on your declination list. What is your reasoning on this issue, and what if anything would you change from current practices?

That’s a good question. I’ve said publicly that I wouldn’t prosecute Operation Lucky Bag and other NYPD tactics that I think are coercive. There are other things, not on my decline to prosecute list, which shows how I would deal with drug sale cases differently: The problem is they have three-year or eight-year minimums, and in other cases, it’s a [Class] B felony with significant jail time. In a lot of those cases, I would reduce the charge to an A misdemeanor, or something less. I’m not condoning drug dealing—it’s still criminal conduct—but I don’t want to send people away for three, five, or eight years. That’s millions of dollars that Manhattanites will have to pay that can’t go to homeless services, helping our small businesses, or anything else.

The Manhattan DA’s office lends staff to the Special Narcotics Prosecutor to prosecute drug crimes. In December, you told us you would “consider” pulling that staff; you later said you would recall those prosecutors. To confirm: If elected, would you remove this staff?

I support legislation that would repeal the SNP office. Until that legislation is passed, I have pledged to transition the 57 Manhattan ADAs on loan to the SNP back to the Manhattan DA’s office.

Even if the DA’s office does not prosecute certain cases, the NYPD may still continue to arrest people in Manhattan for those behaviors since they operate independently. What would you do to bring policing practices in line with the approaches you would implement as a DA?

I’d like to believe that if I declined to prosecute a whole host of crimes, that will affect the way in which the NYPD addresses the problem. But I can’t ensure that: I can’t force my views on the NYPD the same way they can’t force their views on me if I’m elected. That will be up to the next mayor and police commissioner to make changes within the NYPD. 

What I can control is what I will and won’t prosecute. We’ve talked about the things I will decline to prosecute. What I will prosecute are economic crimes, things that protect workers and tenants, and reforming the sex crimes unit and addressing violent crime where appropriate and necessary. 

On that point, there has been some tension between those who say we should downplay the lower-level offenses to prioritize other crimes, and those who broadly resist ramping up criminal prosecution and a DA’s involvement. How do you think about that tension?

It’s about an allocation of resources. I am determined that I will reduce the budget for the DA office in some way and at some level. But it’s about moving your resources in smart and different ways to address the criminal conduct I’m talking to you about, also including cybercrime, confidence scams, credit card scams, phone scams against mostly our senior and immigrant communities in Manhattan that steal $5,000 or $10,000 from people who can ill afford to have that money stolen from them. That’s where I want to put my ADAs, my investigators, the money within the budget in the office. We can allocate resources to that because we’ll be reducing the footprint of the office in the many things we talked about.

The post ‘Life Sentences Are Death Sentences.’ How This D.A. Candidate Wants to Decarcerate Manhattan appeared first on Bolts.

This article is published as part of a partnership between New York Focus and The Appeal: Political Report to cover Manhattan’s 2021 elections. Read our first two articles, on the war on drugs and statewide advocacy.

New York State appears to be on a trajectory of expanding the rights of sex workers. On Feb. 2, the state repealed its “walking while trans” ban, an anti-loitering law that critics said the police were using to harass trans New Yorkers. Many advocates are pressing for the passage of legislation that would decriminalize sex work.

But most of the candidates seeking to be elected as Manhattan’s next district attorney this year don’t want to wait for the legislature. If they win, they say, they would take the DA’s office entirely out of the business of going after consensual sex work. 

Six of the eight declared candidates told New York Focus and The Appeal: Political Report that they would stop prosecuting charges involving sex work, whether against people who are selling sex or against buyers.

The relative consensus is a measure of how quickly attitudes on sex work have shifted since even 2019, when only one out of seven candidates for Queens DA, Tiffany Cabán, supported the full decriminalization of sex work. A coalition of activists, known as Decrim NY, launched in 2019 and has strenuously championed change since then.

Even among those six Manhattan DA candidates, though, differences emerged in their interests in advocating for statewide legislation that would decriminalize sex work and in whether they include any carve-outs in their policies.

A seventh candidate says she would decline to prosecute cases against sex workers but keep pursuing charges against buyers and suppliers of sex work. This approach, known as the “Nordic model” or partial decriminalization, was far more prevalent among the Queens candidates two years ago. Critics of the approach worry it still gives too much room to the criminal legal system and continues to expose sex workers to law enforcement.

The winner of the Democratic primary in June will determine the extent to which the status quo changes for sex workers in Manhattan.

More than 2,000 sex workers have been arrested in Manhattan since 2010, when DA Cy Vance took office. Investigations have found that the vast majority of those arrested for buying or selling sex in New York City are nonwhite. The borough’s prosecutors generally dismiss charges against sex workers in exchange for completing a five-session course with social work professionals on “exit strategies” out of the sex trade, but that system leaves them subject to police harassment and to the disruptions of arrests and interactions with the court system.

“Every time you have to deal with police, it’s always harmful,” TS Candii, a sex worker and the founder of Black Trans Nation, a trans and sex workers’ rights organization, told New York Focus and the Political Report. “I’ve been coerced into sexual favors” by police while on the job, Candii said, adding that “99.99 percent” of the sex workers she knows have had similar experiences of abuse or harassment at the hands of law enforcement.

Vance, who has not announced whether he is running for re-election, did not respond to a request for comment regarding his positions on prosecuting sex work.

Advocates point to the death of sex worker Yang Song in 2017 as a particularly stark example of the costs of criminalization. Song died after falling four stories from a Queens apartment building while police were attempting to arrest her for allegedly engaging in sex work. 

People arrested on prostitution charges in Manhattan are typically released pretrial, at least initially, but they face detention if they miss their court dates. In 2019, Layleen Polanco, a transgender woman, died while incarcerated pretrial at Rikers Island on sex work charges, unable to pay her $500 bail.

“Layleen Polanco is a perfect example of someone who died alone in a cell when one of her underlying offenses was sex work, survival sex for a Black trans Latina who was excluded from many parts of the formal economy,” Jared Trujillo, policy counsel at the New York Civil Liberties Union and a former sex worker, told New York Focus and the Political Report.

Even the incarceration alternatives that people are steered toward when arrested can be inconvenient and burdensome, sex workers and their advocates said. Abigail Swenstein, a Legal Aid attorney who has represented many sex workers, warned against assuming that sex workers benefit from prosecutors’ help. “Not everybody wants the counseling sessions,” she said.

Declining to prosecute

Five candidates—public defender Eliza Orlins, Assemblymember Dan Quart, and former prosecutors Alvin Bragg, Diana Florence, and Lucy Lang—told New York Focus and the Political Report that they would never prosecute buyers or sellers of consensual sex between adults. 

Declining prosecution would involve not pursuing any charges over these behaviors, and would go further than the current approaches of conditioning diversion on requirements such as courtroom visits and counseling sessions. 

“The criminalization of sex work is something that has really disproportionately hurt women of color, trans women of color, LGBTQIA folks,” Orlins said. Orlins has made decriminalizing sex work a major pillar of her campaign, and released a policy paper on the issue in January.

Quart said he would decline to prosecute sex work with “no ifs, ands, or buts” because criminalization exposes sex workers to violence and discourages them from reporting abuse. Florence said “sex work is work” and Lang said “private consensual sex between adults should not be criminal,” explaining why they both supported full decriminalization.

Bragg cited “deeply disturbing” racial disparities in enforcement as part of the reason he supports decriminalization. “For the past four years in New York City, 89 percent of persons charged for selling sex were nonwhite,” he noted.

Another candidate, civil rights attorney Tahanie Aboushi, also says she would decline to prosecute cases involving both sellers and buyers of consensual sex work. But she added that she would consider prosecuting individuals arrested for behavior tied to prostitution in a school zone. “We obviously want to protect our children, and make sure that when people are ticketed for this particular reason, it’s because they’re actually within the school zone,” Aboushi said, adding that she would not seek to incarcerate individuals arrested for this offense. 

The five candidates who said they would never prosecute charges related to consensual sex work confirmed that they would not prosecute this offense. Quart explained that the offense is “overbroad and vague in its wording,” and added that he would consider prosecution if the statute were revised to be “more specific” in its definition of a school zone. A “school zone” includes swaths of area surrounding schools, which covers a lot of people in dense Manhattan. 

From 2016 through 2019, 16 individuals were arrested in Manhattan for prostitution in a school zone without also being charged with a more serious crime, according to police records. The NYPD may not be currently coding some arrests as occurring within a “school zone” even when they do, and some advocates warn that the police could potentially ramp up such reports if that were the only charge the DA office prosecuted.

The two remaining candidates in the DA field took markedly different approaches.

Former prosecutor Tali Farhadian Weinstein said in a statement that she would “decline to prosecute those who sell sex but continue to pursue purchasers and facilitators of the selling of sex when public safety requires I do so.” She declined to specify particular circumstances in which public safety would require prosecution of purchasers of sex.

Farhadian Weinstein’s approach aligns with the so-called Nordic model or “equality model” of decriminalization, in which selling sex is decriminalized but buying sex remains a crime. 

Brooklyn DA Eric Gonzalez embraced this approach in January, when he announced his office would no longer prosecute sex workers but would continue to pursue charges against others.

Some lawmakers and former sex workers support this model. They argue that it will shield sex workers from criminal exposure while also shrinking the industry overall by reducing demand, a goal they say is essential to protect people from exploitation by sex buyers and traffickers. 

But other advocates say criminalizing the buying of sex keeps the entire industry underground, where sex workers have fewer protections, and keeps sex workers subject to police harassment. They also say that partial decriminalization is paternalist and that many people involved in sex work are not looking to be rescued by the criminal legal system.

The equality model “keeps the police in people’s business,” Candii said. “Not only would the police continue to police our bodies, but in order for the police to get to the buyers, the police would still have to use surveillance, watch the sellers …. It would put the eyes on us from the police, so that they can get to the johns. And then the johns that they are getting is our family members, is our brothers, is our sisters.” 

Bragg, one of the candidates who would implement a declination policy that is aligned with a full decriminalization approach, also faults the Nordic model for leaving communities of color subject to disproportionate arrests for purchasing sex. He notes that “93 percent of those accused of trying to buy sex were nonwhite” in New York in the years 2017 through 2020.

The final DA candidate, former prosecutor Liz Crotty, told the Political Report and New York Focus that she would not institute any blanket policy of declining to prosecute either buyers or sellers.

Crotty said she “definitely” supports the decriminalization of sex work but believes that it should be done through the legislature. Until the legislature takes that step, she said, she would still consider prosecution. 

“The job of the district attorney is to enforce the laws of the state of New York. To the extent that it’s still on the books, you have to look at each and every case,” she said.

An opening to change state laws

The rift between those who are pushing for full decriminalization and others who are promoting the Nordic model is also playing out in Albany. 

Two competing bills, written by Democrats, each champion one of these approaches. 

The Stop Violence in the Sex Trades Act, introduced by Senator Julia Salazar and Assemblymember Richard Gottfried and championed by the Decrim NY coalition, would decriminalize the buying and selling of sex between consenting adults. Another proposal, the Sex Trade Survivors Justice and Equality Act, which Senator Liz Krueger and Assemblymember Pamela Hunter plan to introduce, would decriminalize the selling of sex but continue to criminalize buying sex, according to news reports. It would also remove incarceration as a possible punishment for buying sex. 

The next Manhattan DA is likely to wield considerable influence as a legislative advocate in Albany, and would be well-positioned to weigh in on this ongoing debate.

Quart, Aboushi, and Orlins said they would push for the legislature to adopt the full decriminalization bill. Quart noted that he was an early legislative sponsor of the full decriminalization bill when it was introduced. 

Florence said she supports full decriminalization, but the Salazar-Gottfried bill currently “has loopholes that would hinder sex trafficking prosecutions.” If elected, she said, she would seek to work with the legislature to address these loopholes.

Farhadian Weinstein, by contrast, said she supports the partial decriminalization bill, a position that matches her preferences for partial declination policy in the DA’s office. “Senator Liz Krueger’s bill … proposes the right balance of safety and fairness on this subject,” Farhadian Weinstein told New York Focus and the Political Report.

Lang said she supports “legislation that decriminalizes private consensual sex between adults.” When asked whether she would support either of the two bills currently pending, she replied, “I’m not running for the legislature.”

Bragg’s spokesperson said the candidate does not have a position on either bill, and Crotty did not respond to a question about her position on the two bills.

The footprint of law enforcement

Even if the next DA of Manhattan declined to prosecute sex work, the police could still make arrests, though arrest rates would likely decrease. And so advocates are making the case for changing NYPD practices as well.

In recent months, politicians and advocates have raised the idea of eliminating the NYPD vice squad, a special division of the police force heavily involved in law enforcement response to sex work. A December investigation by ProPublica revealed that the vice squad frequently engages in abusive practices toward individuals accused of sex work-related offenses and often makes arrests for sex crimes on the basis of little or no evidence. 

Aboushi, Bragg, Orlins, and Quart said that as DA, they would advocate for the disbanding of the vice squad. Orlins said that in addition to pushing the disbanding of the division, she would also advocate for “reallocation of their budget to sex worker peer-led services.”

Crotty, Farhadian Weinstein, Florence, and Lang stopped short of calling for the vice squad to be disbanded, though all expressed opposition to some of its practices.

The recent growth of support for decriminalization shows the success of the movement of sex workers who are fighting to overcome stigma and secure their rights, local activists say. “Sex work is work,” Trujillo said. “Through determination and resilience, sex workers and advocates have built political power and forced folks to take their safety seriously.”

The graphic has been updated to reflect that the legislative proposal to partially decriminalize sex has not been introduced as legislation.

The post In Manhattan D.A. Race, Momentum Builds to Decriminalize Sex Work appeared first on Bolts.

As more district attorneys win elections on promises to reform the criminal legal system, demands are mounting for them to not just tinker with its edges but directly downsize it. The goal, for many activists, isn’t only for this system to treat people differently, but to ensure people never encounter it in the first place.

Today Tahanie Aboushi, a candidate for DA in Manhattan’s 2021 election, rolled out a list of more than 40 offenses she says her office would not prosecute because they criminalize poverty, mental health issues, and substance use. Her new policy proposal builds on an earlier promise to end the prosecution of a shorter, and more qualified, list of charges.

If she is elected, she would not file criminal charges over drug offenses, sex work, driving without a license, disorderly conduct, some theft charges, fortune telling, and many more, in cases where these would be the top charge. Such cases would be outright dropped when brought to her by the police.

Aboushi, a civil rights attorney, is one of eight candidates in the Democratic primary to replace DA Cy Vance, who has not yet said whether he will seek re-election. A number of her opponents have said they would decline to prosecute some offenses that are on her list as well.

New York should “stop over-relying on the DA’s office and the police to respond to everything that goes on in society,” Aboushi told the The Appeal: Political Report in a Q&A. “Interaction with the justice system is destabilizing.” 

This would substantially reduce the “footprint” and also the budget of the DA’s office, Aboushi vows. Her memo states she would reduce the budget by half.

“When we clean those cases out,” she said, “we’re going to see we don’t need an office of this size, with so many different moving parts, all contributing to the very issues we’re fighting against.”

Among Aboushi’s opponents, Assemblymember Dan Quart has released a set of 18 offenses he would not prosecute, including resisting arrest and drug possession for personal use. (Aboushi includes these and also drug sales on her list.) Public defender Eliza Orlins says she would decline to charge offenses like drug possession and petty theft that perpetuate cycles of poverty and inequality, and last week launched a new plan to decriminalize sex work. Lucy Lang, a former prosecutor, also says she would not prosecute sex work. Alvin Bragg, another former prosecutor, lists on his website offenses that he would “[make] it the default” to not prosecute. Also running are former prosecutors Liz Crotty, Diana Florence, and Tali Farhadian Weinstein.

Although the scope of these declination policies varies, the very notion that DA candidates would be competing to see who will most reduce their office’s jurisdiction would have sounded strange as recently as 2018, back when Rachael Rollins released a list of 15 offenses she would not prosecute on her way to winning the DA race in Boston. Her decision to propose a blanket declination policy, as opposed to saying she would treat these charges differently, less harshly, or less frequently, was heralded by reform advocates for pushing the boundary of what was being debated in DA elections.

John Pfaff, a professor of Fordham Law School, wrote in The Appeal at the time that declination policies like Rollins’s challenge “the still-dominant attitude that the only real way to prevent problematic behavior—at least in poorer, more heavily policed communities—is to threaten people with ever-more-severe criminal punishment and incapacitate them in prisons when those threats fail.” He added that “we overstate the effectiveness of law enforcement responses,” which leaves other public agencies off the hook for providing adequate housing or healthcare. It is now somewhat more common for candidates to run on declination, including in races in Queens in 2019 and Austin last year. 

Aboushi spoke to the Political Report about what it means to reduce criminalization. She explained why she extends her declination promise to drug sales, why she is proposing to fully decriminalize sex work, and makes the case that her declination policies would also address police misconduct.

In the course of the Q&A, Aboushi also addressed sections of her policy that call for reducing convictions and incarceration over offenses that aren’t on her declination list, including higher-level offenses that involve violence. She said she aims to “shrink the footprint” of the system in all cases “without exception.”

“This is a person who is part of our society, that even if incarcerated will one day be released and be part of our society, and we will be accountable for the state of this person, their family and their community,” she said.

This interview has been condensed and lightly edited for clarity. (See also: Appeal Live hosted a forum for candidates last week.)

—

It’s become commonplace to hear prosecutors talk about “alternatives to incarceration” for low-level offenses, for instance behaviors linked to substance use, but what many mean by this is that they will use diversion programs or specialized courts, which typically still involve charging and prosecuting the cases. Why did you prefer rolling out this different policy of committing to decline these charges?

The intention of the policy is to show how we’re going to shrink the footprint of this office and focus on a public health approach. A lot of the charges that are prosecuted by this office are those that criminalize poverty and cover for bad policing. We’re talking about declining these types of cases that don’t impact public safety but serve to really destabilize communities of color. 

We have to ensure that we’re coming from a public health perspective, and stop over-relying on the DA’s office and the police to respond to everything that goes on in society. 

People need resources, programming, and help, and this can’t come from the DA’s office. 

Using the DA’s office, prosecution, and incarceration only makes bad situations worse. In terms of diversion programs, right now, people who need help have a carrot hanging over their head, where they have to complete all these conditions; some require them to plead guilty, others put them in a position to disclose information that can be used against them. This environment is not conducive to rehabilitation. It’s not conducive to the treatment that they actually need. And people should have the autonomy to decide if they want to engage in these programs and treatments. 

Your memo promises your office will “review every arrest,” and “decline to prosecute every case on which the top charge is one listed in Appendix A,” which is a list of roughly 40 charges. Is your proposal here meant to set a presumption of how to deal with those charges, which your staff may still circumvent depending on the circumstances, or a categorical policy of not using them?

We plan to decline to process every case in which the top charge is listed in Appendix A. We’ve worked on this policy in co-governance with a lot of our community based organizations, public defenders, civil rights attorneys, those in the public health realm. So there are no exceptions here. 

In the past, some critics of declination policies have said that such commitments to not prosecute certain offenses go beyond the role of the prosecutor. What is your response to that view?

The laws are disproportionately applied for people of color. If the same law was supposed to apply to everybody, we wouldn’t see these disproportionate impacts that are largely ignored. 

And it’s my job to understand what are the root causes, how do we rehabilitate, how do we prevent these things from happening in the future? How do we prevent recidivism, how are we infusing resources into the community to ensure that we are coming from a holistic approach for people, victims, to achieve the support they need?

Earlier you said the DA’s office can’t respond to “everything that goes on in society.” We’re now in an economic crisis that threatens to worsen poverty and spark a rush of evictions. I bring up evictions since some of the charges you are vowing to not prosecute (such as trespassing) are often used to criminalize homelessness. But we’re hearing about austerity and belt-tightening. What does that mean for the policies you are defending? What does your platform imply for the services and actions needed from the rest of the city, and what happens if those don’t come?

The priority of budgeting should be to ensure stability, education, housing, employment, mental health services, substance abuse treatment programs. We need to move away from relying on the police and the prosecution as the first-line response. City agencies need to step up and do more for the communities, and the DA’s office needs to be seen as a partner in ensuring and maintaining stability, not in destabilizing people then handing them over to the city agencies and community organizations and saying, “Now figure out funding to fix people that we’ve helped break.”

You mentioned earlier that current policies aren’t taking public safety into account properly. Why do you think your policies would improve safety, and what then do you think should be the public response to those offenses that you are saying should still be prohibited? 

Today, the way DA offices work is that accountability means incarceration, or some kind of supervision. We can’t conflate accountability with incarceration. I always talk about ensuring co-governance, that the community has a seat at the table, that we are working with organizations like Common Justice, Street Corner Resources, Cure Violence programs, that can help us address root causes, take preventative measures, and focus on rehabilitation.

My father was released from prison in his 60s, he had triple bypass surgery, and it was a breakdown in our relationship. How do we talk about accountability on behalf of the DA’s office for the part we played in that destabilization? I think it’s important to look at the holistic approach, the long term approach: It’s extremely difficult to survive, let alone thrive after having come into contact with the justice system. 

You said, “we can’t conflate accountability with incarceration.” When it comes to a declination policy, it’s also criminalization that you’re targeting—whether or not it involves incarceration.

Correct, it removes the criminal penalties and finds alternative ways of accountability. Mass incarceration is a problem, but the mass criminalization of people is also a problem. Even though it might not lead to actual incarceration, the interaction with the justice system is destabilizing. 

I’ve asked you about your declination policies, which cover lower-level offenses. Your memo also states you wish to approach all cases differently, including seeking more alternatives to incarceration and deferred prosecution for higher-level offenses that involve violence. Many people who defend criminal justice reforms treat those offenses separately, and for instance say they are specifically looking to reduce incarceration for nonviolent offenses. Why are you choosing to reject that model?

When we talk about decriminalization, shrinking the footprint, and ensuring that resources are available, it’s across the board, without exception: no one being an exception to receive any health, treatment support or resources. This is where the rubber meets the road for the progressive movement. We can decline to prosecute cases that may not impact public safety, but when it comes time to these other charges listed in Appendix B, we have to make sure that our commitment is not only progress but also decarceration.

This is where the holistic approach comes into play. This is a person who is part of our society, that even if incarcerated will one day be released and be part of our society, and we will be accountable for the state of this person, their family and their community. The way things operate now, people are shut out of opportunities. 

How would you marry your perspective that incarceration is not the same as accountability, with the criticism aimed at many prosecutors, including Cy Vance, that they are not doing enough when faced with sexual assault cases?

The DA’s office is the introduction to accountability for a lot of victims. I’ve represented plenty of victims of sexual assault, and it is incredibly difficult to have the ear of the DA and the ADAs in the office. Their [approach] is not to focus on the healing of the victim, it’’s to accomplish conviction or to accomplish incarceration, because those are the only accountability tools available to them, or the ones that they choose to use. And we do have victim services organizations and community organizations that want the restorative justice process where healing, rehabilitation, and accountability is allowed to play out.We will center the victim, we will do it through a holistic public health approach, and if it comes to sentencing, we will be careful and mindful of the damage of incarceration and ensure that people still have access to resources and can prove their rehabilitation by offering parole when possible.

Some advocates call to reduce the length of sentences, including life sentences, for higher-level crimes as well. Would your office further those goals?

We sentence people to exorbitantly long amounts of time. We’ve committed to having a sentencing review unit for those who have excessive sentences. We are committed to asking for no more than 20 years with opportunities at parole as early as possible, even 10 years. 

—

Many of the prohibitions on your “declination list” are enforced through over-policing, and many documented cases of police brutality have happened in the course of routine interactions with law enforcement over these offenses. But even if your office does not charge cases, that won’t have authority over what the NYPD decides to do. So can these policies help diminish over-policing, and how?

We have a really robust transparency policy about police accountability. We’re going to work with our partners to start tracking all kinds of data, especially on police officers: Who is bringing the case, what are the allegations made, what are the histories of these officers—similarly to what was done with the analysis on the VICE units.We’ll use this office as a bully pulpit to call for real accountability and go for sanctioning measures that not only reduce the NYPD budget, but make sure we change its practices. 

And you say in this memo that you will not prosecute certain charges such as resisting arrest because they “have been used to cover up police misconduct.” How would that advance the accountability demands that have defined the 2020 protests against police violence?

I’ve represented plenty of protesters, including those in the recent protests here in New York, and almost every protester is charged with resisting arrest, unlawful assembly, disorderly conduct. That is the gateway that allows the officers to put their hands on a person, whether it’s arresting them, beating them up, throwing them to the ground. These charges give a cover to the officer for everything else.

It’s more than just saying, after the fact, we are going to put out a “bad cop list.” Charges that are used to cover up bad policing or make for easy arrests, we’re going to take that tool away from them as well.

You are proposing to decriminalize behaviors that are tied sex work. This is a major debate in New York right now, and some are proposing what’s referred to as “the Nordic model,” which, broadly speaking, decriminalizes sex workers but criminalizes sex buyers. Why do you prefer using the DA’s office to advance full decriminalization?

Sex work is a consenting engagement between two adults. It is work, people are engaging in this for income, and that is done with consent. The Nordic model still leaves the door open to have those who engage in sex work to be criminalized. This is not to be conflated with human trafficking, rape, sexual assault. We have plenty of laws on the books that address those things. But particularly for sex work, what we’re seeing, and it was especially problematic in the NYPD’s VICE unit, is that this is a charge used in an abusive manner by police. 

When it comes to the war on drugs, your “declination” policy lists possession of controlled substances, which other prosecutors have run on as well, but also their sale. [Editor’s note: In an earlier version of the policy, Aboushi said she would not prosecute a “first offense” when it comes to drug sales, language was removed in the new policy document.] Why are you proposing this broader policy?

I think that’s an important distinguishing factor between myself and others in the race. When you talk about decriminalization, we have to go all the way. Possession cases are sometimes charged as sales cases, and while some think we’re going to have trucks of cocaine delivered right to your door, my goal is to further the conversation about decriminalizing drugs, get people thinking of it as a public health issue, and respond instead with rehabilitation. For those that struggle with substance use disorder, the prosecution system and police and incarceration are not going to get us through those issues.

A significant share of the cases that New York prosecutors are now pursuing fall within the list of charges you say your office will not prosecute. So if you’re elected, where does that leave the DA’s office, in terms of its size and the resources it’d need? 

Shrinking the footprint of this office will allow it to meaningfully investigate serious crimes, whether it’s murders, homicides, rapes, sexual assaults, white collar crime. White collar crime has brought our neighbors to their knees time and time again, whether it’s mortgage foreclosure issues, addiction issues, wiping out their savings, Ponzi schemes, wage theft. These are quality of life crimes that go largely uninvestigated, and they’re not held accountable. I’m talking about using this office for these serious crimes and using our resources for that, instead of preying on the vulnerable.

When you say “reducing the footprint,” does that also mean reducing funding, or are you talking of reducing resources from these areas and putting them towards these other goals like white collar crime?

Yes, it means reducing funding. When we make the changes in this office, I will always keep my eye on how we can reduce the funding. For instance, the Manhattan DA’s office got a lot of money to implement criminal justice reform, and when you look at some of the breakdowns, it went to hiring more prosecutors and things of that sort. 

What is your expectation for how much your policies would cut the budget of the DA?

You know, the aim would be 50 percent. But if we could do more, we’ll do more. We just spend hundreds of thousands of dollars prosecuting cases that relegate people to debt collectors for the court system. When we clean those cases out, we’re going to see we don’t need an office of this size, with so many different moving parts, all contributing to the very issues we’re fighting against.

The post Manhattan D.A. Candidate Explains Why She’ll Stop Prosecuting Drug Offenses And Sex Work appeared first on Bolts.

This article is published as part of a partnership between New York Focus and The Appeal: Political Report to cover Manhattan‘s 2021 elections. Read our first article, on the war on drugs, here.

The District Attorneys Association of New York (DAASNY), an association of New York prosecutors that generally takes tough-on-crime stances and in recent years fought reforms championed by state Democrats on prosecutorial misconduct and bail, is one of the state’s most powerful lobbying forces on criminal justice issues. All 62 of the state’s DAs are members of the association.

But Manhattan’s DA election could weaken DAASNY’s influence this year, by costing it the membership of one the state’s most prominent prosecutors’ offices.

Three of the eight declared candidates in the June Democratic primary—civil rights attorney Tahanie Aboushi, public defender Eliza Orlins, and Assemblymember Dan Quart—told New York Focus and The Appeal: Political Report that, if elected, they would not join DAASNY and would instead seek to be a “counterweight” or “alternative” to the association in criminal justice policy debates. The Democratic primary is expected to decide who will replace Cy Vance, the incumbent who has not yet indicated whether he will seek re-election.

These three candidates would be part of a budding trend of DAs distancing themselves from their state’s prosecutors’ associations, which tend to be among the staunchest foes of criminal justice reform around the country. Philadelphia DA Larry Krasner left Pennsylvania’s DA association in 2018, and San Joaquin County DA Tori Salazar left California’s a year ago. Other reform-minded prosecutors in California and Virginia have stayed in their states’ associations but formed competing organizations to advocate for progressive reforms.

Sandra Doorley, the Republican DA of Monroe County who became president of DAASNY last year, castigated the candidates who pledged to leave DAASNY. “Candidates for District Attorney who declare that they will not join DAASNY before they are even elected do not understand the immense value that comes from the connections made with fellow prosecutors that can lead to new ways to approach problem solving in all of our communities,” she said in a statement to New York Focus and the Political Report.

All but one of the candidates said that they would be interested in joining or forming an association of progressive DAs intent on promoting criminal justice reforms, regardless of whether they also stay in DAASNY, reflecting a desire by most of the field to position themselves as progressives. 

But some reform advocates warn that if the next Manhattan DA remains in the association, it would preserve DAASNY’s ability to present itself as the authoritative voice of prosecutors. For a DA to leave DAASNY would be a “signal that people are willing to break ranks” from the tough-on-crime conventions of the state’s law enforcement, said Nick Encalada-Malinowski, civil rights campaigns director at VOCAL-NY.

Should the next DA leave DAASNY, he said, “we’d finally have a DA in New York State that is actually attempting to be accountable to their specific constituents, as opposed to the most regressive DAs in the state.”

A century at the table

Founded in 1909, DAASNY has historically been a bastion of opposition to criminal justice reform in New York State. In the last decade, it has opposed the creation of a state commission to investigate prosecutorial misconduct, limitations on the practice of trying minors as adults, and 2019’s discovery reforms.

In addition to opposing the landmark 2019 bail reform law and lobbying for its partial rollback in 2020, DAASNY gave prosecutors 90-minute trainings on how to use loopholes in the law to hold more defendants in jail pretrial.

“They have intransigently opposed for decades reforms that would decrease the number of people incarcerated in jails and prisons, that would allow people access to due process, that would address the criminalizing of gravity knives, for example,” said Katie Schaffer, director of organizing and advocacy at the Center for Community Alternatives. “That is what DAASNY has done and stood for.”

DAASNY’s influence has somewhat diminished since Democrats won full control of the state legislature in 2018, according to former DAASNY president and current Albany County DA David Soares, who said the association worked especially well with the formerly Republican Senate and Governor Andrew Cuomo, a Democrat. But the organization still exerts considerable sway.

“Any legislation related to the prosecution of crimes or the criminal legal system, DAASNY has been consulted and had a seat at the table,” state Senator Julia Salazar, chairperson of the chamber’s crime and corrections committee, told New York Focus and the Political Report. “They really had a big influence on the conversations on bail, and discovery and speedy trial in 2019, and again in 2020 when there were essentially rollbacks to bail reform, unfortunately.” 

In her statement, Doorley defended the group’s practices as fueled “by a common goal of sharing ideas and improving the criminal justice system.” 

“Together we use our broad experiences to assess whether proposals ensure sufficient protections to victims of crimes and whether a proposal will harm public safety while also safeguarding the rights of those accused of crimes,” she said.

In 2019, when prosecutors were fighting proposed reforms, advocacy organizations urged DAs who say they are progressive, including Manhattan’s Vance, to withdraw from DAASNY, but none did. In the DA race for Queens that year, Tiffany Cabán ran on a pledge to leave the organization, but she fell just short of victory.

Vance did not respond to multiple requests for comment on DAASNY.

Leaving DAASNY

The three candidates who said they would not join DAASNY detailed their stances.

Quart said that in addition to not joining the association, his nearly 10 years in the legislature would help him serve as a “counterweight” to its lobbying efforts in Albany. 

Quart noted that he has fought the association in the legislature and won, pointing to his seven-year effort to repeal a law banning gravity knives, which was passed and signed in 2019 over DAASNY’s objections, as an example.

Orlins said that as a public defender, she has “fought every day against prosecutors, and against the terrible outcomes for which DAASNY has lobbied,” adding that she hopes that the Manhattan DA choosing not to join DAASNY could have a “ripple effect.” 

“Manhattan is a place that a lot of people look to and think about as a model,” Orlins said. “So when the Manhattan district attorney says ‘I am no longer going to join DAASNY; I will not be part of this regressive group that has been an opponent of real change, and blocked criminal justice reform measures,’ that hopefully brings about real change across the state. Maybe it opens the door for other DAs to withdraw from DAASNY.”

Aboushi said DAASNY’s hard-line positions are out of step with the population of New York. “The positions of DAASNY have always been consistent, have always been clear,” she told New York Focus and the Political Report. “But when you look at what the people are demanding and what the city needs, you can’t go and do the same thing over and over. They need something different.”

The other five candidates who are all former prosecutors, took a different route. Their responses to New York Focus and the Political Report ranged from uncertain to supportive of membership in DAASNY.

Diana Florence and Alvin Bragg said they would remain in DAASNY, and Liz Crotty said she would “likely” do so.

Lucy Lang said she was undecided; this represents a shift for Lang, who had said at a forum last year that she would join DAASNY. Tali Farhadian Weinstein’s spokesperson did not indicate which course the candidate would take.

“Whether as a member of DAASNY or not, as district attorney I will advocate for reforms consistent with what the public is calling for,” Lang said. “DAASNY’s positions on everything ranging from bail reform to discovery reform are out of line with the values that I will bring the Manhattan district attorney’s office—and as district attorney, I will actively advocate against the positions the organization has taken on these critical issues.” 

A progressive alternative?

Other candidates echoed Lang’s commitment to advocate for more progressive policies even if they stay in DAASNY. One tool to promote progressive change, most said, would be to join an alliance of reform-oriented DAs. No such group exists yet in New York.

Aboushi, Orlins, and Quart said they hope to create an alternative prosecutors’ organization. Such an organization could foreground the views of “prosecutors who are for real reform,” Aboushi said.

Bragg, Farhadian Weinstein, Florence, and Lang all indicated that they would be interested in joining a reform-oriented DA association, even if they stay in DAASNY. Lang said she would do so “enthusiastically,” and Farhadian Weinstein’s spokesperson said the candidate would “look to create one.” 

Crotty declined to say whether she would join such an association.

Some of the candidates who said they would stay in DAASNY said they would push for changes in policy stances from within the organization.

“I believe in ‘having a seat at the table’ especially in elected associations that historically didn’t include people who looked like me,” Bragg, the only Black candidate in the race, said. Bragg, a former chief deputy attorney general in New York, is now co-director of the Racial Justice Project at New York Law School.

He added that he would “continue to speak out publicly and forcefully against DAASNY positions that I disagree with,” noting his record of support for ending cash bail and discovery reform.

Florence said that she, too, hopes to change the organization from the inside. “There is no question that the DA association has not been a voice for progressive change within the criminal justice system,” she said, noting her previous criticism of DAASNY and DA Vance’s opposition to a proposed change to New York’s rape laws to expand the legal definition of rape to include oral and anal sex. “I believe that as DA, I can use the bully pulpit and its incredible power to influence prosecutors statewide to embrace a more progressive, 21st-century view of criminal justice.”

Crotty said that “things don’t change unless you get in there and help them change.” But she declined to share a specific policy on which she disagreed with DAASNY’s views and would like to see change.

Asked about the possibility of reforming DAASNY from within, criminal justice reform advocates argued that regardless of the next DA’s individual stated positions, remaining within the group would bolster its legitimacy as the organization as a whole continues to fight reforms.

When they left California and Pennsylvania’s DA associations, Salazar and Krasner highlighted that a key source of these groups’ influence is their ability to project a sense of universal consensus among the state’s prosecutors. “The [Pennsylvania District Attorneys Association] will not claim legitimacy of its most important criminal justice jurisdiction and try to take us back 40 years,” Krasner said at the time.

DAASNY has functioned similarly, reform advocates said. It has presented its stances to Cuomo as “the collective perspective of our state’s prosecutors,” and media outlets frequently refer to its views as the views of the state’s prosecutors at large. Just one DA choosing to withdraw could disrupt this perception, advocates said.

Advocates were also skeptical of candidates’ claims that it would be possible for the next DA to change DAASNY from the inside. “I think it’s either naive or intentionally avoidant,” Schaffer said. “We have seen multiple self-identified progressive district attorneys … join DAASNY, claim to want to have a seat at the table, but not be able to shift what DAASNY looks like, and frankly not necessarily be very dedicated to that.”

“The idea that if one of these candidates was elected and joined DAASNY that they would either stay committed individually to really shifting DAASNY, or that they would be able to do so, seems to me highly unlikely,” she added.

The post Will Manhattan’s Next D.A. Break Ranks With Tough-on-Crime Colleagues? appeared first on Bolts.

In 2020, progressives won prosecutor and sheriff elections across the Sun Belt, from Los Angeles to suburban Atlanta, and to a lesser degree the Midwest. These new officials have begun the year by overhauling policies on bail reform, marijuana, the death penalty, and ICE contracts. 

The East Coast may take its turn in 2021. A string of local elections that hold the potential of upending the criminal legal system are on the horizon in the spring and fall.

Voters in Brooklyn, Manhattan, Philadelphia, numerous Virginia cities, as well as a medley of counties in Pennsylvania, New Jersey, and New York will elect their prosecutors and/or sheriffs, against the backdrop of sustained organizing and renewed protests. Three of these states also hold statewide elections that may alter the political landscape for criminal justice reform, and a string of municipal races nationwide will affect control over law enforcement.

As ever, local and state officials hold a huge share of the power to fight mass incarceration and wind down our punitive era. Even as Democrats are set to take control of the federal government this week, and some of their agenda involves changes to the criminal legal system, the politics of county prosecutors and sheriffs will have an outsized impact on issues such as sentencing and pretrial detention to drug policy, and plenty of activism will continue pressuring lawmakers, governors, and mayors to aggressively overhaul state rules and statutes.

In 2021, Philadelphia will undergo the biggest test yet for how reform-minded prosecutors fare upon their return to voters. Larry Krasner, the longtime civil rights attorney who won the DA race four years ago and has since pursued reforms, is up for re-election. Elsewhere in the country—in liberal Manhattan, but also in suburban Pennsylvania and in smaller Virginia cities—progressives are hoping to elect candidates who will push the prosecutor’s office toward considerably more decarceral policies. And sheriff elections will take place in counties whose jails have notoriously poor conditions, such as in Erie County (Buffalo) and New Orleans.

Elections will be high-stakes even in smaller jurisdictions such as Portsmouth, Virginia, which last year was the site of a racist backlash to protests that also targeted the local Black prosecutor.

2021 could also put a spotlight on other local officials—most notably mayors—like never before. Mayors have struggled to keep up their usual feigned distance from their police departments in light of the Black Lives Matter protests that defined the summer of 2020, and this is already shaping key elections in 2021. In addition, gubernatorial, legislative, and judicial elections in New Jersey, Pennsylvania, and Virginia could alter the broader political dynamics.

Beyond the results of any individual race, though, 2021 may continue transforming the broader culture of criminal justice elections. In recent years, local candidates have laid out increasingly bold platforms, perhaps fueled by rising protests and by the previous wins of decarceral candidates whose successes called into question the electoral potency of tough-on-crime attacks.

This has meant more proposals that would shrink the criminal legal system and law enforcement altogether—by not prosecuting certain behaviors at all or by closing jails, for example—rather than just making them work differently. This shift is still nascent, however. Will the 2021 elections further it?

Below, The Appeal: Political Report walks you through some of the defining questions regarding local and state elections that will occupy our attention this year. See also: Our master list of 2021 DA and sheriff races.

Progressives fell short in Queens in 2019. Can they take over the DA office in Manhattan?

Few campaigns have advanced national awareness of DA elections among progressives as much as Tiffany Cabán’s unsuccessful candidacy in Queens in the summer of 2019. New York City is back under the DA spotlight this year because two more boroughs—Brooklyn and Manhattan—are electing prosecutors. Brooklyn DA Eric Gonzalez, who is expected to run for re-election, has implemented criminal justice reforms during his tenure and has pledged to take no law enforcement donations, but he has also drawn criticism for remaining too cautious about making change. This race has yet to make waves.

The DA race in Manhattan, though, is shaping up to be the battle royale of 2021. 

Cy Vance, the incumbent, has not announced whether he will seek re-election. But in the meantime there are eight candidates who are running to replace him, all in the Democratic primary. Some of the contenders are positioning themselves to be the most progressive in the race and seize Cabán’s mantle, which is raising concerns on the left that the voters interested in the boldest changes against mass incarceration may end up splitting their vote. (New York City will use ranked-choice voting for local elections this year, but that will not apply to the DA election.) Major differences are already emerging in the crowded field on issues such as drug policy, and policing and pretrial detention are sure to be decisive questions given the city’s heated debates over defunding the NYPD and closing the Rikers Island jail complex.

“Obviously the stakes are high for the people most vulnerable to prosecution in New York City, specifically low-income Black and Latinx people, but it’s also a nationally, and even internationally, significant election because of the reach of the office,” Nick Encalada-Malinowski, the civil rights campaign director of VOCAL-NY, told me when I asked why his organization is focused on this election. “We hope to keep pushing the bar of what’s possible from district attorneys and figuring out ways to hold them accountable once in office.”

Eighteen of New York State’s other 60 counties will elect their DAs as well in regularly-scheduled races. The most populous are closely-divided Orange and Suffolk.

Orange County DA David Hoovler, a Republican, has been very vocal over the past two years in opposing the bail and discovery reforms the state adopted in 2019. He headed the District Attorneys Association of the State of New York (DAASNY), the association that lobbies on behalf of state prosecutors and resisted these reforms, when they were implemented.

In a changing Philadelphia, Larry Krasner faces re-election bid

Krasner was a defense lawyer and longtime civil rights attorney when he won the DA race in Philadelphia in 2017, toppling expectations of what kinds of candidates and policy agendas could win these elections. He instantaneously became a national face of progressive prosecutors, and he has since rolled out reforms to reduce drug convictions and adult prosecutions of youth, exonerate more people, and protect immigrants from deportation. He has also sought to strengthen the hand of statewide reformers and death penalty opponents. Court watchers and reform advocates have pushed him to go much further, faulting him on the continued use of cash bail, among other issues.

But Krasner has also clashed continually with the Philadelphia police union and with statewide officials who favor more tough-on-crime policies, including the state’s Trump-appointed U.S. attorney, its Democratic attorney general, Republican state lawmakers. President Trump himself has attacked Krasner as part of his attacks on local criminal justice reforms, calling him “the worst district attorney.”

At the moment, Krasner’s chief opponent is Carlos Vega, a former prosecutor whom Krasner fired. Vega is centering his campaign on a promise to roll back Krasner’s changes, calling them “an experiment that is costing the lives of our children” and pledging to be a “voice for victims.”  (Vega is running in the Democratic primary, which is likely to decide the election in this staunchly blue city.) Other challengers with different platforms may still emerge, but so far Philadelphia’s race is shaping up to be the biggest showdown yet over whether voters will decide to keep prosecutors with reform-oriented agendas in office.

The DA race this year will take place on very different terrain than four years ago, given a series of other victories by left candidates in Philadelphia, including in legislative primaries last year. One of these upset winners was Rick Krajewski, a Krasner organizer in 2017 who ousted an incumbent Democratic lawmaker. A Krasner ally also won the sheriff race in 2019.

Elsewhere in Pennsylvania, pay attention to drug policies and a legacy of tough-on-crime politics

The 2010s saw a shocking explosion in the number of people prosecuted for homicide because they provided or distributed a drug that resulted in a fatal overdose. (These are known as drug-induced homicide charges.) This punitive practice increases incarceration and often punishes people who are drug users themselves. And Pennsylvania has been the epicenter of this practice.

This year, three of the four counties where prosecutors have filed the most drug-induced homicide charges in the nation are holding DA elections. All are in Pennsylvania: Bucks County, a populous swing county in the suburbs of Philadelphia, and heavily conservative Westmoreland and York counties. 

At stake here are not just drug-induced homicide charges, but also the broader shape of drug policy in a state that continues to prosecute people for marijuana, and where lawmakers are more interested in toughening laws than in treating addiction as a public health matter, advocates warn.

The election in Bucks County, where Republican DA Matthew Weintraub is up for re-election, is already heating up. But Danny Ceisler, a Democrat who had centered his campaign on criminal justice reform and on questioning the legacy of “the war on drugs and mass incarceration,” dropped out last week to work at the Pentagon in the wake of the storming of the U.S. Capitol. 

Other Pennsylvania counties of at least 100,000 residents with DA elections this year are Blair, Centre, Lackawanna, Lebanon, and Schuylkill. If a progressive candidate were to break through, it could change not just local policies, but also give a rare in-state ally to Krasner, whose strand of reform politics has left him largely isolated among Pennsylvania prosecutors. The state’s DA association has aggressively championed punitive policies, driving an incarceration rate above the already sky-high national average.

Elections in Virginia could alter the balance of power

In Virginia more than in any other state, the usual tough-on-crime consensus among prosecutors has fissured after a wave of progressive wins in prosecutorial elections in 2017 and 2019. Last year, 11 commonwealth’s attorneys formed a progressive alliance (the Virginia Progressive Prosecutors for Justice, or VPPJ). THe VPPJ is promoting a different strand of policies than the tough-on-crime approach long championed by the state’s traditional prosecutorial association, the Virginia Association of Commonwealth’s Attorneys (VACA). 

Twenty-five Virginia cities are electing commonwealth attorneys in 2021, and that could further change the balance of power in the state.

The president of VACA—Virginia Beach Commonwealth’s Attorney Colin Stolle, a Republican who is not part of the VPPJ—is up for re-election.

Other Virginia cities of at least 200,000 people that will elect prosecutors are Norfolk, Chesapeake, and Richmond. The incumbents in the latter two are not part of the VPPJ; Richmond in particular leans strongly Democratic. In Norfolk, incumbent Greg Underwood, who is part of the alliance, is retiring, a few years after a showdown with local judges over his refusal to prosecute marijuana possession. At least one candidate who is running to replace him, a deputy prosecutor, has expressed his strong support for the VPPJ’s goals.

Portsmouth, a smaller jurisdiction, will hold one of 2021’s most symbolic elections. Incumbent prosecutor Stephanie Morales, who is Black and played a leading role setting up the VPPJ in July, was targeted by the local police last summer alongside other local Black leaders. The disturbing episode is part of a long history of attempts to overthrow Black political leadership in Portsmouth, adding weight to a ballot that could feature Morales and other local politicians who have faced backlash.

Jail conditions loom large over sheriff races, from Buffalo to New Orleans

The New Orleans jail, which was turned over to a federal appointee in 2016 due to the sheriff’s failure to improve its disastrous conditions, is once again under the management of longtime Sheriff Marlin Gusman, a Democrat who has derided monitoring as an attempt to create a “jail utopia.” In northern New Jersey, immigrants detained in Bergen County have been on hunger strikes to protest their detention in the county jail because of the county’s partnership with ICE, and Sheriff Andrew Cureton, a Democrat, has minimized the issue with inaccurate statements. In Erie County (Buffalo), New York, the jail has seen a long string of deaths under the leadership of Republican Sheriff Tim Howard.

All three of these counties are electing their sheriffs this year—and jail conditions ought to be a major focus in each of them because they affect the health, and even survival, of thousands of people. 

Historically, conditions of county jails have escaped scrutiny, due to a mix of indifference and secrecy, but in recent years local organizing has made it a focal point of sheriffs’ re-election races; this was the case last year in Cincinnati and Fort Worth.

Other populous jurisdictions that will be electing sheriffs this year include Suffolk and Monroe (Rochester) counties in New York, Allegheny (Pittsburgh), Bucks, and Delaware counties in Pennsylvania, Camden and Essex counties in New Jersey, and all of Virginia’s independent cities. Winners will set policies on matters such as medical care within jails, policing, and immigration, and they can exercise clout in statewide debates—as they did in New York last year to push back against bail reform.

Policing protests will ramp up the pressure on candidates for mayor and governor.

Last year, former New York City Mayor Mike Bloomberg’s stop-and-frisk record became a central stumbling block for his presidential ambitions. Still, as protests against police brutality grew in 2020, in many cities such as Seattle, Atlanta, and Boston it was mayors who stood in the way of some of the bolder reforms activists demanded. And in New York, the mayor exhibited remarkable carelessness toward COVID-19 contagion in city jails. 

All of those cities, and many more, have elections for mayor and city council in 2021, and candidates will be asked for their plans over their city’s police departments and budgetary choices. The cities of at least half a million residents with mayoral races sometime this year are Atlanta; Boston; Charlotte, North Carolina; Detroit; El Paso and Fort Worth, Texas; New York; San Antonio; and Seattle. Minneapolis, where George Floyd was killed by police, is also holding elections for mayor and City Council.

As some cities set up more alternatives to policing and strengthen other public services, these races are opportunities for activists to at least extend those debates into more cities. Also New York’s mayoral election may shape the city’s already delayed plans to close Rikers Island, and its council races feature the candidacy of Cabán as well a Democratic Socialists of America goal of creating a socialist caucus.

Two states, New Jersey and Virginia, will also be electing governors and legislatures. Both are among the states that have advanced the most criminal justice reforms in recent years, in part due to Democrats seizing full control of their state governments in recent years. The Democratic primary for governor in Virginia is already shaping up to be a showdown between the party’s various ideological flavors.

In Pennsylvania, a state Supreme Court election for a Republican-held seat could shift the balance of power on a court that has moved leftward in recent years but has not fulfilled criminal justice reform advocates’ hopes on matters such as ending capital punishment. But a GOP ploy to gerrymander the state’s courts could wreak havoc on the judiciary, starting with the prospect of a referendum to change the election system in the spring.

This story has been corrected to reflect that a candidate has dropped out of the election for Bucks County DA.

The post In 2021, Don’t Sleep on Criminal Justice Elections appeared first on Bolts.