Bronx District Attorney Accountability Questionnaire

Local and state prosecutors hold extraordinary power in the criminal justice system. How they exercise discretion at each stage of criminal proceedings—from initial charging decisions to the sentences they seek to impose—determines whether the local justice system is fair and just. They also wield significant influence as policymakers and civic leaders, and can work with legislators, judges, public defenders, law enforcement, and other community stakeholders to advance justice through policy reforms.

Prosecutors can and should use this power to end the scourge of mass incarceration in America. The United States has the largest prison population in the world, and 87 percent of those imprisoned are held in state or local prisons and jails. The United States’ over-reliance on incarceration and harsh punishment is both costly and ineffective; it exacts enormous financial, emotional, and social costs on communities across the country while exacerbating recidivism and leading to more crime. Here in New York City, we incarcerate an average of nearly 10,000 people in our jails. Most people in the city’s jails are detained  pre-trial. Thirty-percent are detained on non-violent felonies, while twelve percent of the population are detailed on misdemeanor charges.

New Yorkers are demanding an end to mass incarceration and its harmful impact on our communities. In fact, in the September 2018 Democratic Primary elections, polling indicated that 90% of New Yorkers want candidates who support criminal justice reform.

This questionnaire evaluates whether candidates for Bronx District Attorney are committed to addressing the key drivers of mass incarceration. The questions fall broadly into five different principles:

  1. End Wealth-Based Disparities.

  2. End the War on Drugs.

  3. Eliminate Excessive Punishments.

  4. Increase Transparency and Accountability.

  5. Promote Policies that Aid Undocumented Communities.

Principle #1: End Wealth-Based Disparities

1. End the Use of Money Bail

The continued use of unjust money bail policies contributes to the overall incarceration of poor people and disproportionately harms people of color by keeping them incarcerated simply because they cannot afford to pay bail.

  • What role, if any, do you think money bail should play in our justice system?

  • There have been reports that Bronx Assistant District Attorneys’ “default is no bail” in cases where the State is not asking for remand, will you make that an official office-wide policy?

  • Will you issue public statements in support of statewide legislation, local ordinances, and/or litigation aimed at ending unjust money bail policies, including the bills currently pending in the Legislature?

  • Will you advocate that all bail determinations require individualized, adversarial hearings, at which the defendant is represented by counsel?

  • Will you presume, and affirmatively recommend, release for all defendants unless there is a clearly articulated substantial risk of harm to the community or high likelihood of flight?

  • Will you publicly support expansion of cash-free pretrial bonds?

2. Make Diversion Programs Accessible to All

Pretrial diversion creates opportunities for people charged with an offense to get the support and education necessary for rehabilitation, and allows successful individuals to avoid the collateral consequences of a conviction, which can be detrimental to future employment, housing, and education. Studies show that diversion programs reduce recidivism and increase public safety. Further, research has also shown that diversion programs benefit people accused of both non-violent and violent offenses. Pretrial diversion should be available to anyone eligible to participate in the program, irrespective of an individual’s ability to pay a fine or fee.

  • Will you oppose all fees, court costs, and fines associated with pretrial diversion programs?

  • If fees cannot be eliminated for all defendants, will you create a robust fee waiver program?

  • Will you refuse to make admission to diversion programs contingent on an individual’s ability to pay restitution?

  • Will you ensure that costs and fees do not bar indigent defendants from participating in required diversion classes, including those provided by outside vendors?

  • Will you expand existing deferred prosecution programs for misdemeanors and non-violent felonies, even if someone has a criminal record?

  • Will you make the application to diversion programs free for all individuals?

3. Adopt Policies to Avoid the Criminalization of Poverty & End Debtor’s Prison

Local criminal justice systems disproportionately harm people living in poverty. Whether through the imposition of fines and fees as a condition to resolving cases, or through laws that effectively criminalize homelessness, local actors have imposed a poverty penalty on many people within our communities. Criminal punishments for certain crimes, including quality-of-life offenses, are by definition excessive.  They saddle people who pose no public safety risk with criminal records, which become lifelong barriers to economic success.

  • Will you refuse to prosecute sit-sleep-lie laws (including in New York City parks), turnstile-jumping, petty theft (especially theft of food and other items of necessity) and other quality-of-life conduct that is a byproduct of an individual’s homelessness or poverty?

  • Will you publicly support legislation to outlaw drivers’ license suspensions for non-payment of fines or fees?

  • Will you oppose incarceration based upon the failure to pay fines, fees, court costs, or restitution unless there is uncontroverted proof the individual is able but willfully refusing to pay?

  • Will you publicly advocate amnesty for fines and fees that result in driver’s license suspensions?

4. End Civil Asset Forfeiture

Throughout the country, law enforcement can seize money, personal belongings, and property from people without even charging them with a crime or obtaining a conviction. Often, the money seized is then used to pad law enforcement budgets. There is no place for this practice, which has received criticism from across the ideological spectrum. Prosecutors must resolve to put an end to asset forfeiture in their counties.

  • Will you support statewide legislation to end the use of civil asset forfeiture, and work with local officials to end the practice in the Bronx?

  • Prior to the elimination of asset forfeiture, will you commit to using the practice only in criminal cases after a conviction has been obtained, where the amount in question exceeds $40,000, and after members of the community have had an opportunity to contest, with the aid of a lawyer, a potential seizure?

  • Prior to the elimination of asset forfeiture, will you commit to diverting recovered funds into community-based programming and not to law enforcement agency budgets?

Principle #2: End the War on Drugs.

1. Keep People Out of Jail for Drug-Related Offenses

Years of experience with ineffective drug laws and the latest medical research on addiction suggest that treating drug use as a public health issue, as opposed to a criminal justice issue, is a more effective approach to reducing harm.

  • Will you refuse to seek incarceration sentences for defendants charged with simple possession of narcotics, regardless of their criminal history?

  • Will you refuse to prosecute defendants charged with simple possession of marijuana, regardless of their criminal history?

  • Do you support statewide legislation to legalize possession of marijuana for adults?

  • Will you refuse to prosecute defendants charged with simple possession of other narcotics besides marijuana?

  • Will you offer diversion to all defendants charged with simple possession of narcotics?

  • Will you refrain from charging defendants with possession with the intent to distribute a controlled substance based solely on drug quantity or packaging?

  • Will you publicly support legislation that reclassifies all drug possession offenses as a misdemeanor?

2. Treat Opioid Addiction as a Public Health Problem

The opioid crisis claims tens of thousands of lives every year, and has shown few signs of abating. Prohibitionist policies did not win the war on drugs, and they will not end this crisis. Prosecutors can play an important role in ending the crisis, but only if they treat addiction as a public health crisis, rather than a criminal justice concern.

  • Will you adopt an office-wide policy stating that drug overdoses will not be prosecuted as homicides cases except when there is sufficient evidence of intent to cause death?

  • Will you oppose legislation permitting prosecution of drug overdose cases as homicides except when there is sufficient evidence of intent to cause death?

  • Will you adopt an office-wide Good Samaritan policy stating that individuals who call the police in response to an overdose will not be prosecuted?

  • Will you publicly support the creation of supervised injection facilities?

Principle #3: Eliminate Excessive Punishments.

1. Treat Kids Like Kids.

Children’s brains continue developing until around the age of 25 and research supports their enhanced capacity for rehabilitation. As a result, children should not be prosecuted in adult court, nor should they be given punishments that preclude the opportunity for redemption.

  • Will you adopt an office-wide policy stating that your office will never seek a sentence of life without parole, or any practically equivalent sentence, for any person under the age of 18?

  • Will you refrain from using  transfer to adult court for any child unless required by law?

  • Do you agree that when a juvenile is sent to adult court, their youthful status and unique circumstances should be taken into account as mitigating factors at each stage of the process, from charging decisions through final disposition?

  • Will you publicly advocate for increased services for incarcerated juveniles?

  • Will you publicly advocate for developmentally-appropriate Miranda protections for all defendants under the age of 18?

  • Would you publicly support broadening the current raise the age law to reduce the number of children who can be prosecuted as adults, including children charged with serious offenses?

  • Will you proactively facilitate the structural and programmatic (e.g., evidence-based treatment and services) changes required by recently passed Raise the Age legislation?

  • Will you publicly support issuance of appearance tickets for E felonies instead of the arrest of persons under the age of 18?

2. Promote Proportionate Sentencing and Pathways to Second Chances

People are more than their worst acts, and even people who commit the most serious offenses often change their lives profoundly over time. To recognize the worth and potential for growth in all people, it is important for local prosecutors to provide individualized consideration to the character and background of each person and to the circumstances surrounding the commission of the offense. It also is critical for elected prosecutors to promote opportunities for release, through parole or clemency, and to help remove barriers to reentering society for those who are released from incarceration.

  • Will you establish an office-wide presumption that the least severe applicable charges apply, and that the lowest sentencing outcome is the correct recommendation?

  • Will you require prosecutors to justify departures to their supervisors, and require that the chief assistant prosecutor approve all maximum sentences sought?

  • Will you establish an office policy against increasing or threatening to increase the number or severity of charges in order to secure more favorable plea dispositions or waivers of rights?

  • Will you publicly oppose any proposed legislation that would create new mandatory minimum sentences or lengthen existing minimum sentences, and support legislation aiming to eliminate such sentences?

  • Will you support New York City Bar’s proposed  Second Chance Amendment to CPL 440.20(5), allowing sentence modification of prison sentences?

3. Probation and Parole

Probation and parole are significant contributors to mass incarceration. Probation and parole were originally intended to serve as an alternative to incarceration to help people improve their lives, yet both have skyrocketed fourfold since 1980. By limiting the number of people who are on probation within Queens, probation-officer caseloads will decrease, allowing officers to spend more time on individual cases. Reducing the length of probation terms will also help lighten caseloads and costs.

Technical violations for probation and parole are fueling mass incarceration. Of the people on parole whom New York sends back to prison, 65% are reincarcerated for technical parole violations. By declining to incarcerate probationers and parolees for technical violations, jurisdictions can reduce jail and prison populations. The cost savings earned through probation and parole reforms can then be directed toward investigating and prosecuting dangerous crimes.

  • Probation is intended to be an alternative to incarceration. Therefore, it should not be issued if the accused could receive a non-incarceration sentence, such as time served or community service.  Will you commit to offering probation only as an alternative to incarceration?

  • Will you advocate for limited probation conditions in each case and imposing conditions that relate directly to the probationer’s risk of criminal re-offense?

  • Would you commit to requesting the minimum term of probation be sentenced in each case, absent extenuating circumstances?

  • Would you advocate for a term of probation to be reduced through earned compliance credit?

  • Would you commit to only detaining a probationer for a probation violation if the violation relates to an immediate, specific, identifiable threat to public safety, or absconding?

  • Will you support second chances, even for those who commit serious offenses, by both limiting parole opposition to those cases in which there is a demonstrable and serious risk of future violence and committing to affirmatively advocate for parole on behalf of those who demonstrate growth and maturity during their incarceration?

  • Do you support legislation to cap technical violations for parole and allow earned time compliance credit for parolees?

4.  Eliminate Unnecessary Punishments

Criminal punishments for certain crimes, including quality-of-life offenses, are by definition excessive.They saddle people who pose no public safety risk with criminal records, which become lifelong barriers to economic success.

  • Will you support and initiate the expansion of alternatives to incarceration programs--such as those provided by Bronx Community Solutions--and problem solving courts, similar to those in Midtown and Red Hook, that divert defendants away from prosecution and toward multidisciplinary solutions to the drivers of criminal conduct?

  • Will you refuse to prosecute broken-windows offenses such as criminal trespass and public urination, opting to refer those defendants to diversion?

  • Will you establish deferred prosecution programs for offenses that do not pose a public safety risk, such as low-level theft and criminal mischief?

  • Will you refuse to prosecute prostitution-related charges and commit to treat people accused of prostitution-solicitation offenses as victims not criminals?

  • Do you support reforming prostitution legislation, including State law that permits prosecution of intent to engage in prostitution based solely on their clothes and appearance?

Principle # 4: Promote Transparency and Accountability to the Community

1. Engage with the Community You Represent

Enhancing transparency and accountability within the district attorney’s office is critical to ending the win-at-any-cost pursuit of high conviction rates that fails communities and to ensuring community accountability.  Providing the community with information about arrest rates, charging decisions, and sentencing policies will help build and maintain trust between the office and the community it serves.

  • Will you maintain and publish an electronic case management system to measure the overall effectiveness of the office—including the number of misdemeanor and felony cases filed each month, disposition statistics, pretrial incarceration rates and length of stay by offense category, and average bond for each class of offense—so that the community can determine the effectiveness of policies aimed at reform?

  • Will you track racial information at all steps of the prosecution process, and publicly report any significant racial disparities arising at any stage of the process?

  • Will you build a staff that reflects the diversity of the communities the office serves?

  • Will you conduct open sessions with the community at least once every month, and create other public channels for community members and organizations to engage with the office?

2.  Enhance the Independent Public Integrity Unit

The district attorney must be committed to rigorously and independently investigating and prosecuting police and other official misconduct. An independent Public Integrity Unit tasked with investigating and prosecuting alleged instances of public corruption, fraud, police shootings, or other abuses of power will help avoid concerns about bias in cases involving police misconduct.

  • Do you support legislation to codify the Executive Order that grants jurisdiction to the New York State Attorney General to act as Special Prosecutor in officer-involved shooting cases in which an unarmed civilian is killed?

  • Have you developed clear procedures and staff responsibilities whenever an officer-involved shooting occurs, including a robust investigatory protocol and an independent investigatory team that has no regular contact with the law enforcement agency in question? If not, will you?

  • Will you release dash-cam recordings and audio or video surveillance related to police-involved shootings within 30 days of any incident?

  • Will you commit to a full investigation of all allegations involving police corruption or violence by the Public Integrity Unit, including presentation to the grand jury?

  • Will you provide defense counsel with a list of all officers under investigation?

3. Develop Policies that Ensure the Integrity of Convictions

Law enforcement officials and prosecutors will inevitably make mistakes. The consequences of wrongful convictions are manifold; the innocent person spends years in prison for a crime he did not commit, and justice continues to elude the victim’s family. Prosecutors must be vigorous in re-examining prior cases whenever there is credible evidence of innocence, and must develop policies that limit the possibility of future wrongful convictions.

  • Will you maintain a Conviction Integrity Unit that examines post-conviction cases to identify and correct wrongful prosecutions?

  • Will the CIU remain separate from the office’s appellate division?

  • Will you create a review process for all discretionary decisions, from charging through disposition, where senior staff examine whether there is sufficient evidence to support the charges and whether the decision is consistent with the office’s policy of seeking the least severe acceptable charges?

  • Will you create an office policy recognizing the flaws in informant testimony?

  • Will you develop clear guidelines regarding the use of informant testimony?

  • Will you prohibit staff from relying on discredited scientific techniques, such as bite mark analysis or hair strand matching?

  • Will you develop clear office guidelines regarding the use of forensic evidence and instill respect for scientific methodology, evidence, and analysis?

  • Will you issue public statements in support of statewide legislation to require open-discovery within 15 days after arraignment?

  • Will you install a complete open-file policy that provides defense counsel with access to all non-privileged information from the moment the charges are filed?

  • Will you support legislation that expedites the discovery process and demands pretrial disclosure?

  • Will you conduct regular Brady training, require prosecutors to turn over all evidence that arguably falls within the Brady rule, and discipline prosecutors who fail to comply with their Brady obligations?

Principle #5: Promote Policies that Aid Undocumented Communities

In the last year, undocumented communities have come under increasing attack because of increasingly vicious federal immigration laws. These policies not only allow for deportation because of minor allegations like possession of drugs, but they also make communities less safe, as undocumented victims fear going to court or speaking to law enforcement.

  • Will you publicly support local ordinances and statewide legislation that affirmatively limits law enforcement’s cooperation with ICE, and oppose any effort to enlist local law enforcement as federal immigration agents?

  • Will you implement an office-wide policy requiring prosecutors to consider immigration consequences in the charging, plea, and sentencing decisions?

  • Will you support pre-plea diversion programs that allow individuals to obtain dismissals of their charges without entering a guilty plea?

  • Will you affirmatively support post-conviction litigation from non-citizens who pled guilty without being advised of the potential immigration consequences of their plea?