What Will Manhattan’s Next District Attorney Refuse To Prosecute?

Midway through a candidate forum Thursday night hosted by Amplify Her, contenders were asked, “As District Attorney, are there offenses you will decline to prosecute?” 

It’s hard to imagine this question being thrown at candidates for one of the top prosecutor’s seats in the nation just a few years ago. But with progressive prosecutors running for office (and winning) in cities across the country, the crowded race for Manhattan DA is increasingly defined by what the candidates say they won’t prosecute, rather than what they will.

At this week's forum, candidate Elizabeth Crotty challenged the premise of the question, declining to say what crimes she wouldn’t prosecute.

“We’re not legislators. We’re DAs, and the job is to enforce the laws of the State of New York,” said Crotty, a criminal defense attorney who worked in the office of Manhattan District Attorney Robert Morgenthau. “I see as a constituent, as a New Yorker, the argument for not prosecuting certain cases, but that’s actually not the job.”

But most of the other candidates in the race are vowing to decline to prosecute a range of low-level charges, calling for a more radical decrease in criminal prosecutions than the status quo under current Manhattan District Attorney Cyrus Vance.

A spokesperson for Vance’s office said they’re prosecuting 58% fewer cases than a decade ago because they regularly decline most prosecutions of marijuana smoking and possession, subway fare evasion, unlicensed vending, nonpayment of fines and loitering for prostitution. Still, the office prosecutes thousands of low-level offenses each year, moving ahead with 13,921 misdemeanor cases in 2020, 87% of the cases sent to them by police. The most frequent misdemeanor convictions last year were for disorderly conduct, petit larceny and criminal possession of a controlled substance in the seventh degree.

“If our criminal legal system is going to continue to have a prosecutor's office, then it’s imperative to identify concrete ways of limiting the reach of the prosecutor’s power,” said Eliza Orlins, who pledges to decline to prosecute most misdemeanor cases altogether, listing only a handful of charges she would go forward with. “Even prosecutors who’ve been held out as progressive prosecutors oftentimes, have not kept campaign promises, and have been and remain, the primary driver of mass incarceration of people of color.”

Some old-guard prosecutors said they bristle at the current tenor of the debate in the DA’s race.

“You have people running for these offices who are basically saying in effect the offices shouldn’t exist,” said Euguene O’Donnell, a professor at John Jay College who’s also a former police officer and prosecutor. “One of the roles of the prosecutor is to do proactive corruption investigations, white-collar investigations, maybe terrorism investigations. I haven’t heard anybody talk like that in a few years now.”

In Crotty’s retort Thursday night, she suggested it bordered on unconstitutional to decide which crimes not to prosecute. But Cardozo Law Professor Ekow Yankah disagreed, saying a DA has wide latitude.

“Perhaps in some places you can try to impeach or recall a district attorney. And of course, the DA may face intense pressure from the mayor, governor or chief of police,” he said. “But as a general matter, this is why the DA has such remarkable power.”

Progressive prosecutors have run and won in cities across the country in recent years. In 2018, Rachel Rollins was elected as District Attorney for Boston and the surrounding county on a campaign of declining to prosecute certain low-level cases, and faced fierce political backlash from police groups and unions, though ultimately their legal challenges of her policies proved unsuccessful.

Five of eight candidates for the Manhattan post say they would explicitly decline to prosecute all cases related to prostitution charges (Lucy Lang, Elizabeth Crotty and Tali Farhadian Weinstein would not commit to this, according to Color of Change’s candidate questionnaire.).

Tahanie Aboushi, a civil rights attorney, has a list of more than two dozen charges that will be dismissed if they’re the top charge on an arrest record. Assemblymember Dan Quart lists 18 crimes he won’t prosecute which includes trespassing, disorderly conduct, possession of alcohol by a minor.

Alvin Bragg, who previously worked in the New York State Attorney General’s office, lists trespassing, larceny under $250, minor driving offenses, disorderly conduct, drug possession and prostitution. Former prosecutor, Diana Florence’s list is shorter and mentions social distancing violations, sex work-related crimes, loitering, and theft of services.

Candidates Lucy Lang and Tali Farhadian Weinstein don’t cite specific crimes they would not prosecute. Farhadian Weinstein, who worked as a federal prosecutor under Barack Obama and then as General Counsel to Brooklyn District Attorney Eric Gonzalez, said she would “reduce significantly” the use of convictions in response to low-level non-violent offenses.

Lang, a former prosecutor in the Manhattan District Attorney's office who later headed the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, describes diverting “crimes of poverty, mental health challenges, or substance use,” away from criminal punishment.