Early last week, newly sworn-in Manhattan District Attorney Alvin Bragg sent a memo to staff in which he briefly recounted his personal experiences with the inadequacies and inequities of New York City’s criminal justice system, before announcing changes to prosecutorial policy aimed at fixing them.
“Data, and my personal experiences show that reserving incarceration for matters involving significant harm will make us safer,” Manhattan’s first Black district attorney emphasized. The top prosecutor went on to instruct staff to cease charging petty, low-level crimes—subway fare evasion, marijuana misdemeanors, prostitution and resisting arrest, among them—and to seek bail and jail time only in cases involving violence, sex abuse, and major financial offenses. Prosecutors should also ask for “no more than a maximum of 20 years,” Bragg advised, directing staff overseeing the most extreme cases to consider restorative justice as an alternative to simply tacking on years to sentences.
“These policy changes not only will, in and of themselves, make us safer; they also will free up prosecutorial resources to focus on violent crime,” Bragg concluded, adding that “while my commitment to making incarceration a matter of last resort is immutable,” the policies he had identified would continue to be shaped by discussion and practice.
That’s all common sense and common decency and yet, in local and national headlines, Bragg, a former prosecutor whose memo delivered on the promises he made as a candidate, is being portrayed as the face of chaos, lawlessness and the Democrat party.
It’s a full-on moral panic. Nationally, Fox News has run story after story, from New York City can expect to see more brazen crime this year, to Gowdy obliterates Manhattan District Attorney for 'hug-a-thug' crime approach: 'Dangerously stupid.'
Locally, the Post insisted Bragg had given “a green light for anarchy.” Detectives’ Endowment Association President Paul DiGiacomo suggested Bragg may as well have given “drug dealers business cards telling everyone they’re open for business,” and Police Benevolent Association head Pay Lynch—in an uncharacteristically measured message, at least for him—expressed “serious concerns.” GOP Assembly Minority Leader Will Barclay claimed “Bragg should not be allowed to hold his office,” as does Republican governor long shot and attention-thirsty Andrew Giuliani, who held a press conference to demand Bragg be removed.
But the most headline-grabbing critique came from newly appointed Police Commissioner Keechant Sewell, who sent a letter that opened by asserting concerns about Bragg’s policies in relation to some 36,000 NYPD members’ “safety as police officers, the safety of the public and justice for the victims.”
"I believe in reform (sic) that make sense when applied collaboratively,” wrote the first Black woman to serve as police commissioner. “In that same vein, I am concerned about sweeping edicts that seem to remove discretion, not just from police officers, but also from Assistant District Attorneys regarding what crimes to prosecute and how to charge them.” She cited worries over escalating subway violence due to fare evasions, fears of “more open-air drug markets and drug use in Manhattan” because of fewer marijuana prosecutions, and a prediction that the policy change for resisting arrest would leave cops open to harm and “have deleterious effects on our relationship with the communities we protect.”
The repeated suggestion that Bragg’s avoidance of carceral solutions will endanger New Yorkers—that he is doing away with the tools that “kept New York safe for the last 30 years,” as former police commissioner Bill Bratton put it—begs the question, which New York are you talking about? Surely Bratton isn’t referring to the New York of people who are poor, or Black and brown, or both, because those folks have long been policed at twice the rate of those who live in wealthier and whiter neighborhoods, a fact confirmed by studies. Bratton also can’t be talking about the Black and Latino New Yorkers who were 43 percent more likely to be hit with bail requests and 25 percent more likely to be prosecuted during the last decade, according to data released by Bragg’s predecessor, Cyrus Vance. And of course, Bratton must be totally ignoring the New York that includes Black and Latino communities, which are disproportionately subjected to broken-windows policing, a form of law enforcement that even the NYPD’s own Office of the Inspector General admitted back in 2015 was ineffective in creating a “related drop in felony crime.” The overly punitive policies of the NYPD and Manhattan district attorney have, in fact, made New York City less safe for them.
What Bragg was elected to do, and what his memo does, is try to correct the appalling and long-standing idea that the safety of some New Yorkers matters, while others, not so much. The collateral consequences of prosecutions are far-reaching and often life-altering in the most negative ways for anyone who faces charges, and it’s mostly poor people of color who in fact face them and pay the highest cost. As Bragg notes in his memo, “even three days in jail can lead to a loss of housing, employment, and strain family connections and increase the likelihood of failure to appear in court.”
In fact, less prosecution of low level crimes—again, as Bragg notes in his letter—seems to be one of the keys to public safety. Just last year, the National Bureau of Economic Research, after looking at nearly 68,000 cases in Massachusetts, found that declining to prosecute a nonviolent misdemeanor or other low-level offense reduced by 58 percent the chance of the “offender” being arrested again within two years. More specifically “non-prosecution reduces the rates at which nonviolent misdemeanor defendants are charged with subsequent violent offenses by 64 percent, with subsequent disorder/property offenses by 91 percent, and with subsequent motor vehicle offenses by 63 percent,” researchers concluded.
“Our findings imply that not prosecuting marginal nonviolent misdemeanor defendants substantially reduces their subsequent criminal justice contact,” the authors noted, with a particular emphasis on first-time law breakers, “or, in other words, that prosecuting marginal nonviolent misdemeanor defendants substantially increases their subsequent criminal justice contact.”
That means more prosecutions of low-level crimes make us less safe. Aggressive policing and prosecution policies are bad for public safety.
Perhaps many of Bragg’s critics are unaware of these numbers, but they’re certainly in the know about some other facts, despite what their recent statements might lead one to conclude. Under Cyrus Vance, the Manhattan D.A.’s office ceased prosecution of most marijuana possession cases back in 2018. In April 2021, Vance announced that his office would no longer prosecute prostitution and unlicensed massage. Four years ago, Vance stopped prosecuting turnstile jumpers in the hope that it would stop NYPD cops from disproportionately targeting Black and Latino New Yorkers, who made up 90 percent of those arrested on the charge—a tactic that worked. As for bail, in 2020 New York instituted bail reform, which got rid of cash bail for nearly all misdemeanors and nonviolent felonies, or about 90 percent of the cases that entered the Criminal Court. Sewell et al’s concerns about these changes seem highly misplaced, and maybe even performative, seeing as they’re actually continuations of policies in place already for years.
It’s also hard not to see the campaign to paint Bragg as a rogue lawbreaker—and the mastermind behind a lawless New York—as anything other than disingenuous considering Bragg noted in his memo that prosecutors are always subject to the rules; he writes that his office will avoid carceral sentences in most cases “unless required by law.” New York state congressman Tom Suozzi—a Democrat vying for governor and a graduate of Fordham Law School—recently told the Post, by way of accusation, that “Bragg can’t pick and choose what laws not to enforce. You can’t say, ‘I’m not going to enforce the law.” But Bragg has done no such thing, and it’s hard to believe Suozzi doesn’t know that. The penal code is the ultimate arbiter of what will and won’t be prosecuted by the city, and that means there are a number of mandatory minimums that cannot be avoided. New York state law also mandates that those who already have felonies, if convicted of another felony, have to be sent to jail.
It’s fairly laughable, this idea that Bragg will oversee New York City’s transformation into a crime-filled dystopia, but it does sort of smack of racist nonsense leveled at other Black politicians where crime is concerned. Bragg is Manhattan’s first black D.A. There is a long history of Black faces pushing anti-Black criminal policies lest they be seen as “soft on crime,” which is another way of saying “not sufficiently excessively punitive toward Black folks.” That’s a big part of new mayor Eric Adams’ appeal.
The idea that Bragg is letting Black folks walk free is the subtext of at least some of the criticisms against him at this early date, embedded in takes like Republican Assemblyman Mike Lawler’s description of the new D.A.’s policies as “insanity in the name wokeness,” or radio talker Mark Simone’s insistence that Bragg is “the most reviled person in NY.” (Really? You think most New Yorkers even know who Bragg is?) Instead of pandering to white fears that criminalize Blackness, declaring himself the “top cop” or taking some other highly problematic stance, Bragg is dialing things back.
This is all to say that the freakout over Bragg’s tenure is both misplaced and calculated—not unlike the responses to “progressive prosecutors” George Gascon in Los Angeles, Larry Krasner in Philadelphia and Chesa Boudin in San Francisco. Two weeks into his term, members of the business-industry group Partnership for New York City are talking about triggering a recall effort, despite the fact that no such process in fact exists in New York. Perhaps they just hate the idea of having a district attorney who, as he’s told numerous audiences, has been in the crosshairs of police guns, put up bail for relatives, and provided housing for a loved one attempting to adjust post-incarceration.
Bragg’s policies seem influenced by firsthand insight, empathy and experience—he’s a former federal prosecutor, co-director of the Racial Justice Project at New York Law School, and counsel for Eric Garner’s family in their successful bid to get a rare judicial review of his killing.
“Gun crime is on the rise. Domestic violence is on the rise. We’ve got sexual assault. That’s what was going on with the status quo. So we know we need a change to address that. And the way to do that, is partner with traditional public safety methods, is to invest in our communities. Racial disparity’s rife in our system. We criminalize poverty every day of the week,” Bragg said at an event last weekend. “We know that our first civil right is the right to walk safely to our corner store. But we also know that safety has got to be based in our community and fairness. It cannot be driven solely by incarceration.”
“This is going to make us safer. It’s intuitive. It’s commonsense,” he stated. “I don’t understand the pushback.”