People of the State of N.Y. vs. Mass Incarceration Platform
District Attorneys are the most important actors in the criminal legal system. As such, they have the power to end mass incarceration or continue to drive it forward at the expense of communities of color. New Yorkers are demanding an end to the over-policing and over-prosecution of our communities. With the upcoming Brooklyn DA election, we have an opportunity to shift the landscape of criminal justice in New York City.
In advance of the Sept. 12 primary election for Brooklyn District Attorney, the Know Your DA Working Group of 5 Boro Defenders created the People of the State of N.Y. vs. Mass Incarceration Platform. This platform outlines our demands for how prosecutorial discretion must be exercised if prosecutors are to do their part in addressing the profound harms of mass incarceration.
The People v. Mass Incarceration Platform was sent to all Brooklyn DA candidates today. It was also sent to the sitting DAs in the other 4 boroughs. The reforms emerging in Brooklyn should not stop at the Brooklyn Bridge. New Yorkers deserve equal justice; crossing the bridge into Manhattan should not mean a difference of brutal years in prison. That’s why we are also demanding that the DAs in Manhattan, the Bronx, Queens, and Staten Island clarify their positions on the issues in the platform. We are one city and must have a unified approach to reforming the criminal justice system.
Please share widely, talk about the platform, attend events in this final 2 weeks until the election, ask your DAs where they stand on these issues. And Brooklyn, remember to vote on Tuesday, Sept. 12.
Keep an eye out for our Voter Guide in a few days.
People of the State of N.Y. vs. Mass Incarceration Platform
1. Ending Broken Windows
Thousands of New Yorkers are arrested, prosecuted and monitored for low-level “broken windows” offenses based on a model of policing that is outdated. Broken windows prosecutions do not make us safer while disproportionately targeting poor communities of color, specifically Black people. Many of these prosecutions are ultimately dismissed, after creating tremendous waste, distress and disruption of lives. DAs have discretion to decline to prosecute these cases.
We demand:
- DAs decline to prosecute any offense for which the eventual sentence is likely to result in an “adjournment in contemplation of dismissal” (“ACD”).
- DAs decline to prosecute the following offenses.
- Theft of Services (P.L. 165.15) for those accused of evading MTA fare
- Trespass (P.L. 140.10/.05) in all instances
- Criminal Possession of a Weapon in the Fourth Degree (P.L 265.01) for the mere possession of a folding knife
- Possession of a Gambling Device (P.L. 225.30) for those accused of playing dice-games or possessing dice for gambling
- Possession of a Forged Instrument (P.L. 170.20) for those accused of bending a Metro-card.
- Possession of Marijuana (P.L. 221.10/.05) in all instances
- Cigarette and tobacco products tax (Tax Law 1814) for those accused of selling loose cigarettes
- Loitering (P.L. 240.35) in all instances
- Prohibition Against Certain Forms Of Aggressive Solicitation (A.C. 10.136) for those accused of begging
- Resisting Arrest (§ 205.30) in all instances
- Criminal Possession of a Controlled Substance in the 7th Degree (P.L. 220.03) in all instances
- Unlicensed General Vending (A.C. 20–453) in all instances
2. Bail
End the practice of requesting cash bail which locks up poor people before they have been convicted of any crime. A person should be able to fight the charges against them while not locked in a cage. Whether someone is granted this opportunity should not be based on how much money they have. DAs have full discretion to decide when to request bail and how much to request.
We demand:
- DAs establish strict policies directing DAs not to ask judges for cash bail at arraignments, and instead to consent to release as a matter of course in most felonies and all misdemeanors.
- In situations where there is a high probability of flight, and only then, DAs request alternatives to money bail, such as bonds that do not require an upfront payment of cash.
- Where defendants qualify for existing supervised release programs, DAs recommend judges allow defendants to be released into supervision rather than set cash bail.
- Supervision such as ankle monitors or house arrest be reserved only for defendants with the very highest risk of flight in the most serious cases, and should be a tool of last resort compared to other, less invasive forms of supervised release.
3. Immigration
Criminal cases disproportionately impact immigrant communities — specifically undocumented people and those with open and pending immigration cases. It is imperative that the DA’s office take these consequences into account by making immigration-safe plea offers — even for those that might already be deportable due to previous convictions.
We demand:
- DAs dismiss low-level cases in which the consequences of a conviction will disproportionately harm the person’s immigration status
- DAs consenting to excusing a client from appearing in court if there is credible fear that ICE will be in court
- DAs make offers from the very beginning of a case in order to limit criminal court contact due to the drastic increase in ICE’s presence outside courthouses and courtrooms.
4. Charging Reform
How the DA’s office decides which charges to bring against the accused makes an enormous difference in the outcome of a case. Currently, many DAs in New York City charge the highest possible crime, or even overcharge, meaning apply a charge that does not fit the facts of the incident. This practice increases the maximum penalty that the DAs can threaten if the accused does not take a plea “offer” to a lesser charge.
We demand:
- DAs as a policy charge the least punitive crime that the facts support
- DAs charge no higher than plea bargain offered
- DA offices hold line DAs accountable for overcharging
- In instances where the penal law authorizes but does not require a misdemeanor to be “bumped up” to a felony based on a prior conviction or other factor, the DA offices uniformly choose not to “bump up” the charges to a felony.
5. Jail/Prison Alternatives
In order to end mass incarceration, we must divert many more cases from prison into programs in the community. This includes programs that divert people with mental illnesses and substance abuse struggles away from jail and into treatment. This also includes community service and youth programming.
We demand:
- The DA’s office cease recommending jail sentences for people with mental illness, especially for repeat offenders of minor “quality of life” offenses, for whom short sentences of incarceration are almost always recommended and imposed at arraignments.
- DAs be trained to understand the interaction between mental illness and behaviors that may lead to an individual’s arrest.
- DA’s office develops protocols to divert mentally ill people away from jail, and into treatment, beginning at arraignment.
- The creation of a dedicated position within the DA’s office to determine eligibility for appropriate diversion programs at arraignments, and help facilitate placement
6. Gang Policy
Gang or crew policing is the new stop and frisk. By surveilling young men of color in poor communities in bulk, the City’s law enforcement has compiled a database of suspected gang members, based merely on who they know, what they wear and where they hang out. With this information, law enforcement targets gangs by arresting and prosecuting members in large scale sweeps of entire neighborhoods. Hundreds of young men of color get caught up in these sweeps without having done anything wrong. Once charged, a defendant who is deemed to be gang members is likely to be treated more punitively by DA.
We demand:
- The DA’s offices to end to its current en masse approach to gang prosecutions
- The DA’s offices adopt a public health approach to youth violence
- The DA’s offices end its reliance on the NYPD’s gang databases
7. Police Accountability
Where police officers engage in misconduct and brutality, it is the DA’s job to hold those officers accountable without giving special treatment or protecting those officers. Historically, in instances of misconduct the DA’s office charges individuals with resisting arrest, disorderly conduct and obstruction of governmental administration, thus protecting police officers and facilitating violence against communities instead of declining to prosecute and bringing those officers to justice. Further, where police officers intentionally hold individuals overnight for broken windows offenses based on false warrants, DAs consistently insist they have no power or authority to hold such officers accountable.
We demand:
- Creation, maintenance and public disclosure of a database of police officers that have been found or investigated to engage in misconduct, brutality and perjury.
- That DAs dismiss cases where there is no underlying criminal conduct instead of charging people with resisting arrest, disorderly conduct or obstruction of governmental administration.
- That DA’s commit to bringing police officers to justice to a higher extent than civilians because of their heightened power and responsibility for the community’s safety.
8. Prosecutorial Misconduct
Prosecutorial misconduct has profoundly harmed countless people accused of crimes, including leading to wrongful convictions. The current culture of the DA offices to let misconduct to go unchecked is unethical and unacceptable.
We demand:
- A prosecutorial integrity unit to assess systemic problems within the office and root out patterns of misconduct including “illusory readiness” (when DAs state they are ready for trial just to stop the speedy trial clock).
- That DA offices dismiss cases immediately when a necessary witness declares themselves unable or unwilling to testify at trial.
- The creation of an active conviction review unit in the 4 boroughs that remain without one (all besides Brooklyn)
9. Discovery Reform
New York has one of the most antiquated laws regarding when prosecutors must turn over evidence to the defense. Although there is legislative reform in the works, DAs can and should abolish their practice of withholding this evidence until the morning of trial. This blindfold practice means defense attorneys are negotiating in the dark and cases plead out even when the evidence is weak or nonexistent.
We demand:
- DA offices should provide open file discovery within after 15 days of arraignment, including the names of witnesses, witness statements, and police reports, and consent to routine pre-trial hearings.
10. Transparency
Everyday prosecutors make decisions about who to hold accountable, who to punish, and whom to forgive, in our name. Their criminal moral judgments represent us. Yet, the internal policies and procedures of prosecutors’ offices remain hidden from the public. As a result, public debate about the policies and practices of prosecutors is rare, and superficial.
We demand:
- The DA’s office should release data on a semi-annual basis the following data points about its case: initial arrest charges, arraignment charges, bail request, bail set by arraignment judge, plea offer, ultimate disposition, with race and gender included.
- All DA offices should develop and disclose office-wide racial impact statements to address ongoing disparities in plea offers and charging decisions with disparate racial impacts.
