What Do District Attorney Alvin Bragg’s New Policies Mean for Manhattan?
By Tess Cohen
Manhattan has a new district attorney who is introducing change on a scale not seen in decades, but reactions to the changes have been overblown, if not alarmist. DA Bragg’s Day One Memo explains that his policies are based on data proving reflexive incarceration does not make us safer. As the New York Times reported, the focus is “not letting them go, but letting them go into a program that will address the reasons why they committed this violent crime” in the first place. Some of his ideas —especially the new bail and misdemeanor policies—make serious changes, but others like the “presumption of non-incarceration,” may have less of an impact than it seems at first blush.
There is no doubt that the new bail policies will represent a turning point in the number of people locked up before trial in New York County, assuming that judges, who ultimately decide bail, go along. The jails on Rikers Island are in on-going crisis, even though the vast majority of people held in inhumane and often deadly conditions there are presumed innocent. Manhattan is responsible for a disproportionate number of people held pretrial, with more than 30% of individuals held at Rikers coming from Manhattan, despite the borough representing only 20% of the city’s population. DA Bragg has created a presumption of release before trial for all but a select subset of crimes, which should decrease the number of pretrial detainees at Rikers in the coming months. With COVID-19 once again ravaging Rikers, these changes cannot come soon enough.
DA Bragg’s misdemeanor policy also appears poised to change the system in substantial ways. In particular, the new administration’s decision to provide pre-arraignment diversion for most non-violent misdemeanors could drastically reduce the number of people processed through the criminal court system and reduce the numbers of convictions in the borough. That would be a good things for both public safety and families of people charged with crimes. Similar policies were adopted in Boston, and researchers found that, “non-prosecution [of non-violent misdemeanors] reduced the rates at which people were subsequently issued any new criminal complaints (58 percent), charged with violent offenses (64 percent), charged with disorderly conduct or property offenses (91 percent), charged with motor vehicle offenses (63 percent), or otherwise marked with criminal records (69 percent).” In addition, the collateral impact of a misdemeanor conviction, even without incarceration, is dramatic, radically narrowing economic opportunities, which harms whole families and communities. For example , a study by the Brennan Center determined that a misdemeanor conviction reduced a person’s annual earnings over their lifetime by sixteen percent.
But for felonies, DA Bragg’s policies may not be quite as radical as they may appear from the outside. The Day One memo states: “The Office will not seek a carceral sentence other than for homicide or other cases involving the death of a victim, a class B violent felony in which a deadly weapon causes serious physical injury, domestic violence felonies, sex offenses in Article 130 of the Penal Law, public corruption, rackets, or major economic crimes, including any attempt to commit any such offense under Article 110 of the Penal Law, unless required by law.”
The “required by law” carve out significantly narrows who can be spared prison time. The memo suggests that DA Bragg is not willing to routinely dismiss indictments to keep people out of jail. Any individual convicted of their second felony in a ten-year period (a period that is extended by any period of incarceration) is required under New York law to serve an incarceratory sentence. Prison or jail can only be avoided if the DA moves to dismiss all the charged felonies and allow the individual to plead to a misdemeanor. Without that, a person who has been convicted of even relatively minor felonies (such as, for example, selling small quantities of heroin or cocaine) twice in a ten-year period, must still be incarcerated.
However, for individuals facing their first felony, in particular those facing their first violent felony, DA Bragg’s policy will put them in a very different position. Right now, many individuals charged with a “violent felony” are sentenced to incarceration even if it is their first offense. DA Bragg’s policy would let such people avoid being locked up. Contrary to the unsupported claims made by some politicians and members of law enforcement predicting a wave of unaddressed violence, this plan is likely to increase public safety. DA Bragg’s policies would provide social services in place of incarceration—programming that would address the trauma, poverty, mental illness and other factors that lead to crime. In sharp contrast, incarceration as it currently exists in New York tends only to exacerbate mental illness, poverty and trauma, while taking people away from the stabilizing influence of their families. Thoughtful alternatives to incarceration programming can and will make Manhattanites safer under DA Bragg’s policies.
Many of DA Bragg’s other policies, while not headline grabbing, will make positive changes in the lives of people accused of crimes, and also for victims and communities. To name just a few, DA Bragg plans to expand restorative justice, to take a public health lens to treatment protocols, and to end the Manhattan DA’s historical practice of requiring individuals who want to enter alternatives to incarceration programming to meet with prosecutors in a proffer, a process that deters many from taking advantage of these important programs.
DA Bragg is already getting pushback from law enforcement and the press. But many criminal justice reformers are also frustrated that people accused of low-level felonies may still be incarcerated needlessly. Until these policies unfold over the coming months, we cannot know the ultimate impact DA Bragg will have, but what is clear is that he plans to change the office he has inherited in significant and impactful ways. As always, ZMO Law PLLC is available to help clients navigate the new realities facing criminal defendants in Manhattan, especially those accused of serious crimes.