By Barry Latzer
Thursday,
January 20, 2022
You may have the impression that
criminal-justice progressives took a big hit in the last election. That’s
because the media played up the defeat of the Minneapolis measure to replace
that city’s police with a new public-safety department. But while that was a
significant victory over the anti-police movement, it wasn’t the only
criminal-justice issue on ballots. Nationwide, voting results were mixed. In
Austin, Texas, for instance, a measure to undo a slashing of the
police-department budget by one-third failed. And more ominously, progressive
prosecutors, such as Philadelphia’s Larry Krasner, continue to win elections.
There are leftist district attorneys in Chicago, Boston, Houston, and St.
Louis. And don’t forget San Francisco, where Chesa Boudin presides over
shoplifter heaven (and faces a recall election in June over his policies). Now
we have to add to the list Manhattan, where Alvin Bragg just swept to victory.
To Bragg’s credit, he laid out in detail
his policy plans, a reflection of previous jobs in which he gained familiarity
with the legal issues surrounding criminal cases. But those plans are so driven
by ideology and so fixated on reducing incarceration that one can only hope he
does not (or cannot) carry them out.
To prove my case, I will explore in depth
two policy issues that Bragg discussed at length in his campaign literature.
They are issues that every district attorney must deal with: pretrial release
(the processing of a case after arrest and before final adjudication) and the
treatment of low-level offenses (in New York, misdemeanors and violations).
Releasing Criminals
Pretrial release is the handling of a case
shortly after arrest and before final adjudication (by trial or, more likely, a
plea). In most of the United States it is a settled matter that dangerous
arrestees can be held in jail before adjudication. Nearly every state empowers
judges to detain defendants in the interest of public safety even though their
cases haven’t yet been adjudicated. The Supreme Court greenlighted this years
ago (United States v. Salerno, 1987), differentiating punishment
(permitted only after adjudication) from administrative confinement.
New York State is the outlier, limiting
judges to consideration of flight risk and forbidding them to take the
arrestee’s dangerousness into account. Compounding the problem, New York’s
recent bail-reform law requires release in the absence of a demonstrated risk
of flight. It also prohibits either bail or jail in most cases even with proof
that the defendant is unlikely ever to enter a courtroom voluntarily.
Since the overwhelming majority of states
allow bail or jail on public-safety grounds, the hot national debate is over
the use of objective measures, sometimes fashioned into algorithms, to
determine the risk of release. New Jersey, for example, recently adopted such
an algorithm, but New York is out of the loop, willfully blinding itself to the
public dangers of release.
DA Bragg is content with New York’s
reforms and seems bent on making things even worse. He opposes giving New York
judges (and prosecutors) the discretion to determine a defendant’s
dangerousness when deciding whether to release him. Why? He thinks
dangerousness determinations are racist. “I have no confidence,” he says, that
“there is any race-neutral way to predict who is dangerous at such an early
stage in the case.”
This is preposterous. Suppose there is
compelling evidence that a defendant has committed a violent crime and that he
has, in addition, a prior conviction for a crime of violence. Assume as well
that he has a history of failing to appear in court. Under such circumstances,
most people would conclude that the judge certainly should have the authority
to send the defendant to jail, or at least to impose bail. It would create a
real danger to the public to release such a person willy-nilly.
An algorithm or even a simple list of the
considerations described above is obviously race-neutral. Whether a crime is
violent and whether the defendant has priors and a history of no-shows are
objective, nonracial considerations. Whether the evidence is compelling, even
though not yet tested at trial, is also unrelated to race. (An example would be
testimony from a victim who knows or is related to the defendant.) A prediction
that such a defendant would be a public threat if released — and such a case is
not uncommon — is entirely race-neutral.
But Bragg buys the woke thinking that
disparate racial impact is the same as race bias. In other words, if the
criteria for bail or jail, even if totally race-neutral, put a disproportionate
number of African Americans in jail, then the criteria must be faulty. This
reasoning is profoundly flawed. It ignores the realities that the proportion of
criminal activity involving blacks is significantly higher than the proportions
involving whites or Hispanics, while blacks compose a lower share of the
population. For instance, just before the pandemic, in 2019, African Americans
accounted for 55 percent of felony arrests in Manhattan, where they were only
12 percent of the population. Whites, who were 47 percent of the population,
accounted for only 10 percent of the felony arrests; Latinos, 26 percent of the
population, were 35 percent of felony arrestees. Consequently, race-neutral
criteria are bound to impact blacks more often — unless Bragg finds a way to
establish racial quotas for prosecution.
If Bragg’s office encourages the release
of dangerous defendants because they are black, then it will add to the crime
and disorder in communities of color, which is where such defendants are most
likely to reoffend. Instead of obsessing over the racial makeup of dangerous
defendants, DA Bragg should ask himself whether minority communities deserve
the full protection of the law-enforcement system.
Manhattan’s new DA goes beyond even New
York’s flawed new bail law, promising to establish a presumption of release:
“My office will recommend non-incarceration for every case except those with
charges of homicide or the death of a victim, [or] a class B violent felony in
which a deadly weapon causes serious physical injury, or [certain] felony sex
offenses.”
Note that Bragg will recommend against
incarceration in every single pretrial case, with a limited list of
exceptions. His list is totally inadequate. There are numerous violent crimes
that do not involve death, or a serious injury from a deadly weapon, or a
felony sex offense, but, for the sake of public safety, warrant incarceration.
There should be no presumption of release in such cases. Here are just a few
examples: robbery second degree, which involves several robbers working
together, or physical injury to the victim, or the display of a gun; assault on
a police officer, firefighter, or judge; gang assault second degree, which
involves an attack by two or more people and results in serious physical
injury, such as that caused by a shooting or stabbing; aggravated vehicular
assault, caused by reckless driving either when drunk or with a suspended
license; reckless endangerment first degree, which creates a grave risk of
death; stalking first degree, which causes physical injury to the victim; and
menacing second degree, which places a person in fear of physical injury by
displaying a deadly weapon or repeatedly following the victim or repeatedly
putting the victim in fear.
How does releasing people arrested for
crimes like these help black communities — or any community, for that matter —
especially given the high likelihood of repeated crimes?
Low-Level Offenses
DA Bragg promises to dismiss every misdemeanor
or divert the case out of the criminal-justice system. Many misdemeanors are
worthy of criminal punishment, so his overbroad approach is unwarranted. If
Bragg wants to divert these cases to some other quasi-judicial body, that’s
fine if there are institutions capable of handling them. But this is little
more than a pointless shell game, since, as I’ll show in a moment, the current
system is quite lenient.
Bragg claims that there are too many
low-level prosecutions, that the punishments for these offenses “are
disproportionately harsh,” and that the penalties “fall disproportionately on
the backs of people of color.”
Our courts
have been clogged with petty offenses for too long. From smoking marijuana to
jumping a turnstile, our criminal courts spend far too much time treating minor
offenses with the same blunt instruments used to address homicides and other
violent crimes. . . . This deluge of low-level prosecutions has
disproportionately harmed people of color: over 80% of those charged with
misdemeanors and 82% of those charged with non-criminal offenses are people of
color.
Too many low-level cases? First, this is for
the state legislature to determine, not a single district attorney. If the
legislature wants to decriminalize low-level offenses, including the violent
misdemeanors I listed above, that’s within their authority. Of course, that
won’t ever happen. But a prosecutor’s discretion in handling a particular case
or even a particular crime shouldn’t be inflated into the power to cancel
entire chunks of the penal law.
Bragg is right about one thing, though:
Minor crimes constitute the lion’s share of criminal cases. They were 79
percent of all prosecutions citywide in 2019. So what? Minor crimes always
predominate — always have and always will. It would be a very scary city if
major felonies were the dominant crimes. We can, of course, debate which
behaviors should be decriminalized, weighing the social impact of various acts,
the effectiveness of noncriminal sanctions, and the effect of the punishments
on the offender. As the public’s standards change — think adultery, abortion,
marijuana possession — we may want to decriminalize additional crimes. But
wholesale decriminalization of minor crimes by a prosecutor is an abuse of
authority.
Second, Bragg grossly exaggerates the
prosecutorial impact of low-level convictions on African Americans. In 2019,
there were 20,980 misdemeanors charged in Manhattan, of which 9,770, or 47
percent, of the defendants were black. The citywide percentage is identical:
Blacks made up 47 percent of the defendants in misdemeanor cases prosecuted.
People of color are not being prosecuted at anywhere near the 80 percent level
that Bragg claims.
Nor are the punishments
“disproportionately harsh.” When misdemeanor cases citywide were arraigned —
that is, brought before a judge for the first time a day or two after arrest —
90 percent of the defendants were released and 10 percent were admitted to
bail. And these figures were for 2019, before the 2020 bail reform made release
virtually mandatory.
In the next phase of the cases, between
arraignment and disposition (meaning the determination of guilt or innocence),
68 percent of the misdemeanor defendants were released. At sentencing, the
final step in the adjudication process, very few low-level offenders were
incarcerated. Of 21,644 Manhattan misdemeanants sentenced, only 12 percent got
jail time beyond their period of pre-sentencing incarceration. A third (34
percent) were sentenced to time already served, and another third (33 percent)
were conditionally discharged. Should those discharged defendants violate the
conditions of release, Bragg declares, he will simply ignore their contempt for
the law. Even if there is “clear evidence that the person willfully violated
conditions of release, or if the individual has failed to appear more than once
on the current charge,” Bragg will, he says, forbid his assistant DAs to seek
bail or jail without supervisory permission.
Surely a system that releases 90 percent
of misdemeanor defendants within a day or two of arrest and sentences only 12
percent of those convicted to additional jail time is not “disproportionately
harsh.” Nor is there much disparity between the incarceration of blacks and
other groups. The incarceration rate for African Americans in Manhattan is only
slightly above the rate for Hispanics, for instance.
Source: https://data.manhattanda.org/#!/sentences
While his racism claim is baseless, the central problem with DA Bragg’s approach is his premise that prosecuting low-level offenses is inherently wrong. Low-level crimes such as excessive noise at night, aggressive panhandling, jumping subway turnstiles, streetwalking prostitution, public use of drugs, loitering in apartment-building hallways, and public urination are offensive to the vast majority of citizens. They undermine neighborhoods by creating anxiety and fear and making streets unsuitable and unsafe for families and children. They attract drug dealers, other serious criminals, and boisterous rowdies. Who would want their kids to play on such streets or walk to school there unaccompanied? These offenses make residents reluctant to go out, walk about, use the parks, or even shop locally. They even make them afraid of their own apartment buildings. In short, they force the law-abiding to surrender public spaces to the lawless.
Low-level offenses are all about public disorder. We’ve seen what widespread disorder can do to our cities, and we don’t want to return to the horrors of the 1970s and ’80s. If disorder blights minority communities more than white neighborhoods, then they deserve and will demand, as they did in the crack-cocaine era, stepped-up enforcement — even if it means that disproportionate numbers of minorities will be prosecuted.
The notion that increased law enforcement is harmful is a deeply troubling position for a prosecutor. Prosecution remains one of the most effective tools we have for coping with misconduct. The public depends on prosecutors to protect the law-abiding by bringing criminals under control, be they petty or serious. Bragg doesn’t get this. He is more concerned with the welfare of the offenders than with that of their victims or of the communities they despoil. But the more lenient he is with offenders, the more they will repeat their crimes as word spreads on the streets that there is no enforcement. (Think about the effects of unenforced shoplifting laws in San Francisco, which has led to gangs boosting goods with impunity, closing down or crippling scores of businesses. Even the city’s leftist mayor, London Breed, declared that “it’s time” for “the reign of criminals who are destroying our city . . . to come to an end.”) Leniency victimizes law-abiding residents, including — and probably especially — those living in communities of color. This is the soft racism of underenforcement.
* * *
Progressives are under the illusion that prosecutors are all-powerful and that woke DAs can upend the criminal-justice system. (See, for example, Emily Bazelon’s book Charged.) They are mistaken. Even a district attorney such as Bragg can do only so much. Take low-level offenses. The penalties are so insignificant that it has rightly been said that the arrest and prosecution alone are, in most cases, the real punishments, the only punishments. Of course, if the new district attorney refuses to pursue certain offenses altogether, and the police therefore refuse to arrest, we will see significant change — and it won’t be for the better. Otherwise the police, with their decision to arrest, hold the key card.
The role of the district attorney’s office at sentencing for serious crimes is another example of the limits on prosecutors. Bragg has threatened to undercut the state legislature’s sentencing provisions by systematically recommending sentences at the low end of legislative guidelines — even for some of the most serious criminals. While the prosecutor can recommend a sentence within the guidelines, the judge does not, however, have to accept that recommendation.
In short, the system controls the DA, maybe more than the DA controls the system. Still, New York City has a big crime problem, and the new mayor, Eric Adams, has promised to get it under control. One week into Mayor Adams’s term, after Bragg reaffirmed his leniency policies in a lengthy memo, the new NYPD commissioner, Keechant Sewell, publicly attacked the DA in an email to the entire police force. In the message, which was released to the media, Sewell told her officers she was “very concerned about the implications to your safety as police officers, the safety of the public and justice for the victims.” Bragg and Sewell subsequently met to iron out differences, while Adams declined to criticize the district attorney.
We’ll see if Bragg will back down and adjust his no-incarceration policies. For New York City and Mayor Adams, the stakes could hardly be higher.
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