Newly elected Manhattan district attorney Alvin Bragg recently issued his “Day 1” memo, setting forth prosecutorial guidelines that will govern in New York County. The memo was titled “Achieving Fairness and Safety,” but Bragg’s new policies, which involve de-prosecuting entire categories of crimes and slashing sentences, are a recipe for violence and disorder. The determination of new mayor Eric Adams to erase the lawless years of Bill de Blasio has run into a serious roadblock.
Bragg modeled his memo on similar policy missives from Los Angeles’s George Gascón, Philadelphia’s Larry Krasner, and San Francisco’s Chesa Boudin—leading figures in the “progressive prosecutor” movement. The only real difference is that Bragg’s memo is encoded for New York’s penal laws, so it takes some translation to regular language.
Bragg’s directives will drive ordinary citizens and the NYPD crazy. He will not charge defendants for resisting arrest. The NYPD now can expect every arrest to be a brawl, in which the only person likely to be charged with a crime is a police officer. Bragg will also decline to charge traffic infractions. This is the sort of de-prosecution decision that has led to deadly street racing and vehicular mayhem in cities such as Chicago and Minneapolis. Finally, he will prevent the police from charging people for trespassing. A quick look at San Francisco’s parallel policy shows a predictable result: tent cities of the homeless in the green spaces and streets.
Bragg’s policies for major crimes will have even more serious consequences. Bragg has directed that armed robberies of businesses no longer be charged as robberies, but only as larcenies. If a gun-wielding robber gets away with less than $1,000, which is typically the case in a store robbery, the defendant will be charged solely with petty larceny, a misdemeanor. Felons in possession of a firearm will be charged only with misdemeanor offenses for the equivalent of unlicensed possession. Finally, drug traffickers will be charged with felony drug dealing only on the rare occasions that they are caught actually in the act of delivering drugs. Drug dealers possessing any amount of drugs and packaging material, but not caught actually delivering the drugs, will instead be charged only with drug possession, a misdemeanor. A drug dealer caught with 50 kilos of heroin would be charged with misdemeanor drug possession, not drug trafficking. It does not take a criminal genius to figure out that these policies will lead to more gun-toting, drug-dealing felons on Manhattan streets.
Who goes to jail on Bragg’s watch? Virtually no one. The only people Bragg recommends for pretrial detention and later prison sentences are murderers, shooters who actually cause serious injuries—firing 50 shots down a crowded street won’t get you locked up if you don’t hit anybody—sex offenders, and perpetrators of specific offenses such as domestic violence or public corruption. Burglars, robbers, drug traffickers, armed felons, gang offenders, and all the other categories of dangerous criminals in Manhattan won’t see the inside of a jail cell.
Even when Bragg does intend to seek jail sentences, the penalties will not be stiff. Bragg says that the maximum sentence sought for any offense will be 20 years, and that his office will never seek life without parole. If 20 years is the maximum sentence for the worst offenses, expect a severe discount on sentences for other offenses across the board.
These guidelines, Bragg says, will be followed unless the law requires stiffer measures. But those who think mandatory penalties will constrain him should think again. Every prosecutor has the ability to evade mandatory minimums. The simplest route is to have a defendant charged with or plead to a less serious offense that does not trigger the mandatory sentence. Prosecutors often also have the ability simply to waive mandatories or not file the qualifying motions that trigger them. The negative exercise of prosecutorial discretion is a virtually uncheckable power.
Alas, Manhattanites might be getting exactly what they voted for (albeit in a low-turnout election). Bragg did not hide any of his policies. He openly advertised them in his campaign materials. He ran on this platform while homicides were increasing across New York and the nation. Even as Adams promised a return of law and order, Bragg pledged to ignore the law. Now the two will have to work together, somehow.
New York often serves as a bellwether on crime and crime policy for the rest of the nation. When the city descended into chaos in the 1970s and 1980s, so did the rest of the country’s urban areas. In the 1990s and 2000s, New York led the way in showing how to control crime and reestablish safety. If Bragg is as determined to thwart the crime-control efforts of Adams and the NYPD as these early signs suggest, we can only hope that the rest of the country ignores New York’s example this time around.
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