Newly elected Manhattan district attorney Alvin Bragg has spent his first weeks cleaning up a mess of his own making. His “Day One” memo, committing his office to the view that incarceration should be “a matter of last resort,” prompted explosive criticism not only from the city’s business owners and editorial boards but also from new NYPD commissioner Keechant Sewell, who warned that Bragg was putting her line officers in danger.
In response, Bragg and his supporters say that critics are lying about how radical the memo is. His office claimed, on Twitter, that “if you punch a police officer, you will be prosecuted. . . . If you are houseless with an addiction problem and you steal toothpaste and some bread, you will be diverted for treatment”—the formulation neatly omitting all the offenses in between. Scott Hechinger, a New York–based activist and defense attorney, similarly labeled Bragg’s changes “modest” and accused “police and pro-carceral forces” of twisting the memo’s meaning.
How can a policy of no incarceration for all but the most serious offenders be “modest?” Defenders—including, most prominently, Fordham law professor and decarceration advocate John Pfaff— have hit on a key answer: mandatory minimums.
The argument goes like this. Bragg’s memo stipulates that his office will not seek “a carceral sentence” except for a brief list of offenses—homicide or manslaughter, serious injury with a deadly weapon, domestic violence, serious sex offenses, public corruption, racketeering, and white-collar crimes—unless “required by law.” That last stipulation offers a major loophole. As Pfaff wrote in The New Republic, “Under the New York Penal Code, all violent felonies except the lowest level (Class E) carry a minimum prison term.” If Bragg wants to charge many felonies, in other words, he’ll be bound by New York state law to seek prison time.
So, does this mean that Bragg will be lenient only with homeless, drug-addicted people who steal bread? Not really. The argument has several holes.
One is that, as Pfaff himself acknowledges, “prosecutors have nearly unfettered discretion in choosing what to charge.” Former elected DA and City Journal contributor Tom Hogan made a similar point here recently:
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.
Bragg’s memo explicitly requires line DAs to reduce charges on various offenses, including charging armed robbery as petit larceny if a weapon is displayed but “does not create a genuine risk of physical harm.” The New York Post has already reported multiple instances of Bragg’s office doing so, a sign that it is clearly willing to down-charge to avoid undesired outcomes. Given that the explicit imperative of Bragg’s memo is to avoid incarceration at all costs, he will no doubt use the tactics that Hogan mentions.
Even if Bragg charges truthfully and thereby triggers mandatory minimums, the memo’s impact is still enormous—partly because the stipulations about avoiding post-conviction incarceration also apply to pretrial detention. Bragg’s memo imposes a blanket “presumption of pre-trial non-incarceration for every case” except the categories previously enumerated. A variety of serious felonies therefore still will not earn Manhattan offenders jail time, which would otherwise keep them off the streets and serve as a deterrent threat to their fellow criminals.
And it’s not as though there are no punishment-worthy offenses that do not carry mandatory minimums. Class E felonies include, for example: aggravated assault upon a person less than 11 years old, promoting a suicide attempt, stalking in the second degree (which includes the display of a weapon), female genital mutilation, defrauding the government, first degree riot, and criminal possession of a firearm (including on school grounds). One suspects that the people of the state of New York, through their elected representatives, designated these crimes because they merit punishment. But because Alvin Bragg disagrees, these, too, will result in no prison time under his tenure.
The mandatory minimums argument is faulty for another reason: it is patently dishonest to insist, on the one hand, that they constrain Bragg’s discretion (thus limiting the damage he can do) and, on the other, that mandatory minimums are unjust. Yet this position is a tenet of the criminal justice reform movement. Hechinger, for example, wrote, “We must abolish mandatory minimum sentences” in a 2019 New York Times op-ed. And during his campaign, Bragg explicitly promised to support mandatory-minimum repeal, signaling his support for voiding the alleged “required by law” protection.
Meantime, Bragg has wide latitude to disregard laws that he dislikes. This is, after all, the entire purpose of the progressive prosecutor movement: use local offices, their holders elected in low-turnout races and wielding enormous discretion, to nullify laws that they consider unjust or unfair. No matter how much Bragg’s proponents insist otherwise, this is the radical agenda against which Manhattan’s citizens must now contend.
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