Mik Pappas’s path to becoming a judge has not been typical. He has never prosecuted a case and instead spent several years as a community organizer campaigning against private prison corporations, helping people in county jails vote, and advocating for criminal justice reform.

In 2017, Pappas was elected as magisterial district judge in Allegheny County, Pennsylvania—which includes Pittsburgh—in an effort to reform the system from the inside. Pappas won with the support of the Pittsburgh chapter of Democratic Socialists of America.

“I knew the power of the law and making social change and in influencing society in a positive way,” he told The Appeal: Political Report. 

Pappas has nearly eliminated the use of cash bail in his judicial district, reduced evictions, and found alternatives to issuing warrants and arresting people who owe money to the court. Now he’s seeking higher office as a common pleas judge, a position where he could influence judicial policies throughout the county. 

Pappas is running as part of a slate backed by local activists who hope this election will reshape the court of common pleas, which has nine out of 34 seats open. Their first hurdle is a primary on May 18. The outcome could have an effect on issues from mass incarceration to evictions.

In Pennsylvania, common pleas judges are trial court judges. They hear and decide motions, oversee bench and jury trials, and render verdicts. They also handle civil cases, hear eviction appeals, and decide on final protection from abuse orders.

Common pleas judges have sway over magisterial district courts, whose judges are typically the first to hear a criminal case. Magisterial district judges sign off on warrants, set bail, and determine if there is enough evidence for cases to move on to the common pleas trial court. They also handle traffic citations, small claims civil suits, and landlord tenant cases.

This is where Pappas has already made inroads. He described his work at the magisterial district level as a proof of concept that showed judges can use their power to reduce the use of jails and harsh penalties.

A 2019 report from the ACLU of Pennsylvania found Pappas did not set cash bail in any  cases between February and June 2018—his first few months in office. He set cash bail in only six cases during the same time in 2019. In total, Pappas set cash bail in less than 3 percent of cases that came before him during those 10 months.

For comparison, some judges in the county imposed cash bail in more than 70 percent of cases during the same time. The report also found glaring racial disparities in the use of cash bail; Black people accused of crimes were initially assigned bail more than 1.5 times more often than their white counterparts.

Outside of some criminal homicide cases which require bail to be denied, Pennsylvania law provides magisterial district judges with wide discretion over what kind of bail to impose, what conditions to set, and, if cash bail is used, how much the person charged is expected to pay before they can be released.

Pappas said he was able to essentially eliminate cash bail by working with people who are facing charges to craft conditions of release. He might issue an order to stay away from an accuser, or make a recommendation of releasing the person to mental health or social services. He says these measures allow people to remain out of jail while awaiting trial, help guarantee their appearance in court, and ensure they don’t cause harm.

“What this all has been is figuring out how the systems work, where the gaps are in the bail system and how to fill them,” he said.

Pappas has also taken an unusual approach to landlord-tenant disputes, which has resulted in a nearly 40 percentage-point reduction in the number of cases won by landlords in his judicial district.

He said he accomplished this in part by more strictly holding landlords to their burden of proof and requiring evidence that they have taken all the proper steps before asking that a tenant be forcefully removed from the property.

This helped cut down on the number of cases that resulted in eviction but also led to fewer cases being appealed by the tenants, Pappas said.

Pappas also began referring some cases to mediation in an effort to resolve a conflict between a landlord and a tenant in a way that didn’t require throwing someone out of their home.

With the COVID-19 pandemic bringing a halt to many eviction proceedings, Pappas said the county has turned to more mediation services to help resolve landlord-tenant conflicts.

Organizations like Just Mediation PGH have helped the court handle cases arising during the pandemic, and Pappas says he hopes mediation or other types of alternative conflict resolution will remain and expand after the pandemic is over.

“People are coming here because they have a conflict, not necessarily because they want the most harsh remedy available,” he said. “These are conflicts where an eviction would be like using a hammer to swat a fly.”

Pappas also instituted a fine and fee justice workshop that connected people who owed money to the court with financial planners and helped them set up payment plans and get in good standing with the court without risk of being arrested.

If Pappas wins a seat on the court of common pleas, he won’t oversee these cases anymore, but he says he wanted to seek the higher office because it will allow him to help shape policy for the entire county rather than just in his individual judicial district.

Pappas did not seek the county Democratic Committee nomination and instead joined two other candidates to create what they’ve called a Justice Reform Coalition. The coalition is made up of Pappas, public defender Lisa Middleman and former assistant district attorney Nicola Henry-Taylor.

He said their goal is to start building power at the common pleas level by electing judges who are interested in instituting reforms to make the system fairer.

The three have also become part of the Slate of Eight, a group of candidates endorsed by several progressive organizations.

If Pappas is successful, Governor Tom Wolf will nominate someone to fill his seat for the remainder of his term, which ends in January 2024. Wolf’s nominee is subject to confirmation by the Republican-led state Senate.

“As [a magisterial district judge], I wanted to push back against mass incarceration,” Pappas said. “But as a common pleas judge, what I’d be calling for is to end mass incarceration in Allegheny County.”

The article has been updated to reflect that Pappas does not describe himself as a socialist.

The post A Pittsburgh Judge Wants to Use the Bench To Fight Evictions and Mass Incarceration 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.

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.

This article is published as part of a partnership between New York Focus and The Appeal: Political Report to cover Manhattan‘s 2021 elections.

The war on drugs in New York City is fueled by a little-known but powerful office: the special narcotics prosecutor (SNP), whose powers derive in part from the good will of the Manhattan district attorney’s office.

Manhattan’s election for DA next year could severely curtail the SNP. Some of the candidates in the crowded field vying to replace DA Cy Vance, who has not yet indicated if he will seek re-election, say they would push for abolishing or weakening the office.

The Office of the Special Narcotics Prosecutor was created in 1971 as part of Governor Nelson Rockefeller’s effort to fight the new war on drugs, which also included the infamous 1973 Rockefeller drug laws. Since 2005, the earliest year for which complete records are publicly available, the office has prosecuted over 20,000 individuals and secured thousands of prison or jail sentences.

Unlike the five borough DAs, who deal with a wide variety of cases from white-collar fraud to construction safety, the SNP prosecutes only drug felonies. The SNP is unique to New York City; no other municipality in the country has a prosecutor’s office devoted solely to drug crime.

“All they do are these drug cases day in and day about, and they overcharge. They demand really overly harsh sentences and make horrible offers in cases,” said Tiffany Cabán, a former public defender and Queens DA candidate who is currently running for City Council.

Advocates and defense attorneys are making the case that taking on the SNP is an essential part of fighting mass incarceration in New York.

“Special Narcotics is just stuck in time,'” Libby Fischer, an attorney with Neighborhood Defender Services, said of the SNP’s office, even as some prosecutors’ offices nationwide are “starting to change slowly, to come under overdue scrutiny.”

Of the eight declared Manhattan DA candidates, all of whom are running in the Democratic primary in June, four told New York Focus and The Appeal: Political Report that they would support legislative reform to abolish the SNP office. Four also said they would vote to remove Bridget Brennan, the tough-on-crime prosecutor who has led the SNP since 1998, fought proposals to reform drug laws, and cultivated a reputation among defense attorneys for pursuing low-level offenses. Brennan could be removed with the approval of three of the five borough DAs.

Perhaps most consequentially, two of the eight candidates—civil rights attorney Tahanie Aboushi and public defender Eliza Orlins—said they would withdraw the 57 assistant district attorneys that the Manhattan DA’s office loans to the SNP. This could be done unilaterally and would cut the SNP’s staff by more than half. 

“If the DA pulled their support, the SNP—one of the most horrific vestiges of the Rockefeller drug era—would soon cease to exist,” said Jared Trujillo, president of New York City’s public defenders union.

Vance, the current DA, did not respond to multiple requests for comment on his policies regarding the SNP. 

“That’s how you get mass incarceration”

The SNP says it focuses far more on top-level narcotics felonies than lower-grade offenses.

“Of the nearly 2,400 indictments brought by our office between 2017 and 2019, 25% of defendants were charged with top A level felonies. In 2017, the most recent year for which New York State data is readily available, we handled 39% of the state’s most serious narcotics cases,” SNP spokesperson Kati Cornell said in a written statement.

A former prosecutor at the SNP, who spoke on the condition of anonymity because of continued professional involvement with the office, told New York Focus and the Political Report that such statistics can be misleading.

“It’s really about people’s definition of petty crimes. If you think that someone should go to state prison for a couple years for selling two bags of crack because they want to buy new sneakers, then you would agree with [the SNP] that they’re only doing the most serious crimes,” the former prosecutor said. “Those people will end up in prison, and that’s how you get mass incarceration.”

Cornell said that the SNP rarely prosecutes defendants solely for lesser drug possession. “From 2017 to 2019, just 2% of indicted defendants faced lesser narcotics possession charges that do not involve intent to sell, exclud[ing] defendants simultaneously facing non-narcotics charges such as weapon possession, assault and money laundering,” she said.

Fischer said that low figure reflected the SNP’s propensity to charge defendants harshly.

“Somebody could have 10 bags of crack because they’re a heavy user, and SNP will charge them with intent to sell,” Fischer said. “That’s a very common case for us to have to go to trial with. SNP believes if you have more than 20 bucks worth, that means you’re a seller, not a user.” 

Orlins, one of the DA candidates and an 11-year public defender, said that many of her clients charged by the SNP were arrested for low-level drug sales in sting operations.

“Time and time again, I would see clients get targeted by undercover officers who would pretend to be addicts themselves,” Orlins said. “They would show up with fake crusted vomit on their sweatshirts, looking disheveled and haggard, and go up to someone who’s a drug user and say, ‘Hey man, hey man, please help me out, I’m so dope sick.’”  

“Then the team swoops in, grabs my client off the street, and arrests my client for sales of narcotics to an undercover police officer,” Orlins continued. “All of a sudden this person is facing years in state prison because of this. It is cruel, it is inhumane, it is unjust, it doesn’t make our city safer.”

The former SNP prosecutor said the SNP is out of touch with attitudes in New York. “If you take what the current view of narcotics prosecutions is in this city, people don’t think that someone selling drugs on a corner should go away for four and a half to nine years. But those are the cases that [the SNP] is still doing.”

The SNP cites a commitment to treatment programs as an alternative to incarceration as proof that it is not overly punitive. The unit has had an alternative sentencing bureau since 1992.

“When individuals with substance use disorder are arrested on lower level narcotics sales charges, we are strong proponents for treatment alternatives,” Cornell said.

But records show that few defendants end up getting access to treatment programs. In 2019, just 6 percent of defendants’ cases were diverted to treatment, according to an SNP report. In 2018, the figure was 3 percent.

Asked about these figures, Cornell said that “many defendants currently charged with lower level felonies opt for a probationary sentence rather than entering treatment programs in New York City.”

That’s likely because as burdensome and strict as probation in New York is, treatment programs can be even riskier for defendants.

The SNP typically requires a guilty plea to divert people into treatment programs, Fischer said. And defendants can end up with a less severe plea if they opt for probation instead. “It could be that you’d get a misdemeanor and probation rather than a felony and treatment,” she said.

People who are diverted into treatment programs still face the looming threat of aggressive punishment if they fall short of expectations, which may involve tasks such as finding stable housing and employment.

“If your client relapses, if they mess up in any way, the SNP prosecutors immediately ask for sentencing and incarceration,” Fischer said.

Abolish the SNP?

Janos Marton, an attorney who worked as a criminal justice organizer with the ACLU, was the first DA candidate to publicly advocate abolishing the SNP. He made the issue a pillar of his campaign, releasing a policy paper on it in January, but suspended his campaign earlier this week.

“If you ask most New Yorkers how they feel about the war on drugs, it’s at this point something that we are all ready to move on from,” Marton told New York Focus and The Political Report. “But here we have this office that’s unique to New York that is continuing to perpetuate it in the most regressive ways. Their perspective on the war on drugs is very Republican circa 2010.”

Four candidates still in the field—Aboushi, Orlins, Assemblymember Dan Quart, and former New York Deputy Attorney General Alvin Bragg—told New York Focus and the Political Report that they also support eliminating the SNP.

Bragg added that as DA, he would not actively push to abolish the SNP but instead would focus on ways to “manage the office and improve it” to promote a “public health perspective” on drug issues.

Three candidates—Lucy Lang, Diana Florence, and Liz Crotty, all of whom are former prosecutors—indicated they did not support abolishing the office outright when asked by New York Focus and the Political Report. A fourth, Tali Farhadian Weinstein, said that she is “open to revisiting the question of whether having a separate and interborough office remains the best way to address narcotics cases.”

Lang signaled interest in reforms, saying that “the options aren’t just to shut it down or for things to remain the same” and that she supports “rightsizing it to focus only on high-level trafficking,” while expanding therapy and counseling services and enabling “immediate diversion” of more drug cases to public health programs. 

Crotty, who has staked the positions most skeptical of reforms on a range of issues, defended current practices, saying the SNP “provides a vital function in working on complex narcotics cases, investigating large-scale drug enterprises, and combating drug trafficking.” 

Asked a number of questions about the SNP, Florence replied in an email statement: “The Special Narcotics Prosecutor should prosecute drug cartels, gun running, drug trafficking rings, and doctors who serve as pill mills, and divert defendants struggling with addiction to treatment.”

Replace Bridget Brennan?

Four of the candidates—Bragg, Orlins, Aboushi, and Quart—told New York Focus and the Political Report that they would vote to replace Brennan as head of the SNP, pointing to her history of supporting a tough-on-crime approach and opposing progressive reforms.

During a 2008 hearing on the reforms to the Rockefeller drug laws that passed the following year, Brennan argued against greater leniency in sentencing. “The threat of incarceration is critical to the success of our programs—and it is a critical element in the success of our efforts to keep dealers from taking over buildings, blocks and neighborhoods,” she testified, according to Newsday’s reporting.

Crime rates in New York City, already falling when the reforms were signed, have continued to fall nearly unabated since.

Brennan has also spoken out against other progressive criminal justice reform efforts in New York including safe injection sites, marijuana legalization, and 2019’s bail reform.  

“Her thinking just hasn’t evolved since she took office in 1998,” said Trujillo, the New York City public defenders union president. 

Bragg argued that Brennan views substance use as an issue of crime rather than public health. “If [the SNP] still exists, prioritizing getting someone in who shares my vision is something I can fully commit to,” Bragg said.

Crotty, by contrast, said that she “knows of no reason to replace Bridget Brennan.”

Lang indicated she had no set position on Brennan. Florence and Weinstein did not address this question when asked over email.

Replacing Brennan would require the support of two of the four other borough DAs, whose offices declined to comment or did not respond to inquiries for this story.

Withdraw attorneys?

The most direct way the Manhattan DA race could affect the SNP office would be its resources: The winner could unilaterally cut its staff by more than half.

As of 2019, 57 of the 72 assistant DAs working in the SNP office—the women and men who prosecute the SNP’s cases—are on the payroll of the Manhattan DA, who could recall them at any time. 

Orlins and Aboushi say they would do so if elected.

“The special narcotics prosecutor is a redundant office that targets communities of color, imposes harsher sentences, and has virtually no accountability. I will not cooperate with it or lend ADAs to that office,” Aboushi told New York Focus and the Political Report.

Orlins said she is in favor of recalling assistant DAs “as quickly as possible,” while noting that “it would be difficult to snap my fingers and make it happen. There has to be some transition period.”

Two other candidates expressed interest in the possibility without committing to it. “I would want to know about ongoing cases before saying I’d zero it out on day one, but to be clear, my priorities lie elsewhere,” Bragg said.

Quart said that he would “consider it” but noted that if the Manhattan DA unilaterally withdrew personnel, other DAs could make up the shortfall. 

Marton doubts that the other borough DAs would make that choice. “I’ve never heard of an agency saying, ‘It looks like you’re short handed over there, why don’t you take a bunch of our guys,’” he said.

Once again, Lang indicated she did not have a set position on the possibility of withdrawing personnel and Florence and Weinstein did not address the question when asked over email.

Crotty said that she “would oppose at this point recalling ADAs from the SNP office.”

If the next Manhattan DA chose to deplete the SNP’s staff, it would curtail drug prosecutions in New York, advocates say.

“It would be a crucial step toward Manhattan and NYC treating substance use as a public health issue,” Trujillo said, “instead of a vehicle to put Black and brown people in cages.”

Correction: An earlier version of a graphic image in this story inverted the positions of Lucy Lang and Tali Farhadian Weinstein regarding the elimination of the SNP.

The post The Election That Could Thwart New York City’s War On Drugs appeared first on Bolts.

Visit our portal of ongoing coverage on the 2021 elections for previews, analyses, and reporting on these elections.

This spreadsheet below identifies the counties that will elect a prosecutor and/or sheriff in 2021. It also contains information about filing deadlines and election dates. (Information about 2022 elections and future cycles is available on this page.)

Note: This list features regularly-scheduled elections. The list could grow if vacancies trigger special elections.

The post Prosecutor and Sheriff Elections in 2021: A Masterlist and Calendar appeared first on Bolts.