New Manhattan prosecutor sparks a right-wing backlash — but the critics don't understand the reality

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05 January 2022

man in black and brown camouflage uniform wearing blue and white mask

On the campaign trail for Manhattan district attorney in 2021, Alvin Bragg was seen by many observers as unlikely to deliver on the reforms he promised. Now that he has been sworn in, he is already planning big moves that could revolutionize the system—unless it destroys him first.

In a memorandum published January 3, DA Bragg states to line prosecutors working under him that they will no longer prosecute “marijuana misdemeanors,” most trespassing charges, turnstile jumping, most resisting arrest charges, and more. “Prostitution” is not specifically named, but a prosecutor must ask a supervisor before charging a client with patronizing. For felonies that are not homicides, high-grade felonies involving serious physical injury with a weapon, most sex offenses, felony domestic violence or major economic crimes, the new default policy is for prosecutors to “not seek a carceral sentence.” The memo also tells line prosecutors that they “shall not seek a sentence of life without parole,” at least under most ordinary circumstances.

Bragg additionally ordered that Manhattan prosecutors should seek to downgrade certain serious charges if mitigating factors are present. For example, a robbery suspect who threatens a clerk with a fake weapon will face larceny charges, not armed robbery charges, so long as no one was hurt and there was no “genuine risk of physical harm.”

This all makes sense in a system that has long abandoned rehabilitation as a genuine goal while failing to demonstrate effective deterrence. Recognizing this, when the elite American Law Institute sought to revise the sentencing provisions of its Model Penal Code, it stated its goal as “limiting retributivism,” nothing less or more. If no one was actually hurt, any legal consequences should be about deterring or incapacitating the person who did the crime, it held—revenge is simply inapplicable.

New York City criminal justice practices get more attention than those of any other city, and have often spread as a model for the rest of the nation. So it did not take long for some of the usual rightwing critics of decarceration to find their soapbox.

Political commentator David French wrote that “This is an extraordinary assertion of prosecutorial authority that’s inconsistent with the rule of law. There’s a difference between prosecutorial discretion (which is already routinely abused) and the wholesale usurpation of the criminal code.” A critical tweet from Peter Moskos, a John Jay College of Criminal Justice professor who once advocated the introduction of flogging as an alternative to incarceration, was retweeted by Donald Trump, Jr. The former president’s son responded, “As if New York wasn’t already doing everything in its power to push people to Florida.”

However, several other commentators recognized that Bragg’s announcement is not as radical as it seems on first blush. For example, while Bragg announced that his prosecutors are expected to request “non-carceral” sentences for most crimes, more serious felonies in New York will still require at least a year of prison time. Considering this, and the memo’s numerous exceptions to ensure the office abides by state law—for example, the non-carceral sentence recommendation piece applies “unless required by law”—Fordham Law Professor John Pfaff said, “This isn’t the ‘jailbreak’ critics are relatively claiming it to be.”

There is also the inconvenient issue of local judges. Judges in New York are elected. With rare exceptions, cities have not seen a “progressive judge” movement to match the “progressive prosecutor” movement. Judges ultimately decide how to sentence cases, and there is evidence they disagree with reform prosecutors much more than they do with traditional “tough-on-crime” prosecutors. Judges also have to sign off on plea bargains to lesser charges, and they may not do so if they think the arrangement is too lenient.

So how much Bragg’s memo translates to actual decreases in the number of Manhattan residents sent to the Rikers Island jail or an upstate prison remains to be seen. Implementation is also likely to present a number of challenges. For example, Bragg’s plans to downgrade certain charges and recommend lower sentences for others may place a greater burden on probation and parole officials, when some people who would usually go to prison will now be put on probation. And figuring out how to reduce incarceration and (unnecessary) court supervision without risking further harms to victims—which would be both inherently bad and politically dangerous for the decarceration project—will take careful analytical work that has not really been done before. This may help to explain why other progressive DAs have largely resisted reforming criminal-legal responses to more serious crimes—beyond obvious or perceived political barriers.

Interestingly, Bragg simultaneously seems to be listening to the local victims’ rights community, which charged that his predecessor, DA Cy Vance, did not take sexual assault and related crimes seriously enough. Bragg told his prosecutors were told that sex crimes involving physical contact are not eligible for the blanket non-carceral sentence recommendation.

Yet that also may create some arguably bizarre results. For example, a 21-year-old who has sex with a 16-year-old girlfriend can be charged with a felony carrying a maximum of four years in prison. So long as there is no “serious” injury, Bragg’s prosecutors will seemingly both argue that the person convicted of armed robbery, a felony that carries up to 25 years in prison under state law, deserves no prison time, while that 21-year-old deserves up to four years behind bars, in addition to the civic death of the sex offender registry, for an act that is not a crime in several surrounding states.

Yet for all the caveats, Alvin Bragg’s announcement carries great significance. We are officially in new territory with a man who has already shown himself willing to go further toward a downsized criminal justice system, at least in theory, than any district attorney before him. Whether he is all talk, all-action or something in between, we’ll soon find out.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

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