When new Manhattan District Attorney Alvin Bragg explained earlier this year that he intended to make good on campaign promises to reduce the number of people jailed from Manhattan, he received predictable attacks from police unions and right-wing commentators.
The tactic was successful in undermining Bragg, who got a visit from a concerned Gov. Hochul and rolled back some of his initiatives, despite the fact that Manhattan’s incarceration rate remains virtually unchanged since last year and the borough still leads all of New York City in jail admissions.
But the real crisis in prosecutions, both in New York and elsewhere in the United States, is not leniency, but punitiveness, along with an ironclad interest in protecting the office above all else and, relatedly, in preserving relationships with police and the powerful at the expense of justice and everyday constituents.
New York State, if it were its own country, would rank behind only six other nations in the world on incarceration rate. Here, we lock up a higher percentage of our citizens than Brazil, Russia, Iran or China, and we do it at nearly three times the rate of the United Kingdom — mostly the result of prosecutorial discretion towards incarceration.
While district attorneys in New York City, because of the population size, still account for roughly 40% of the state’s jail admissions, according to the Vera Institute of Justice, the counties with the highest likelihood of jail admission after arrest are all actually upstate: Seneca, Chenango, Orleans, Ontario, Schuyler, Cayuga, Broome, Steuben, Livingston and Clinton. Counties with the worst racial disparity in admission rates include: Montgomery, Westchester, Columbia, Cattaraugus, Warren, Schoharie, Ontario, Monroe, Oneida, Fulton and Suffolk.
Really, the governor should start making house calls here.
In Columbia County, District Attorney Paul Czajka was also recently in the news for letting two cops off the hook for a beating at a holiday party at the local sheriff’s house. Saratoga County District Attorney Karen A. Heggen is taking the unusual step of appealing the dismissal of charges against a Black Lives Matter activist accused of blocking traffic during a protest last summer. Monroe County District Attorney Sandra Doorley tried to lock up a local activist for registering to vote. Orange County District Attorney David Hoovler has repeatedly spoken at Republican Party political events — in apparent violation of the ethics rules.
Hochul has yet to weigh in.
We likely could find examples of grotesque overreach in every district attorney’s office in the state, but what the public should be equally concerned about are the structural issues that underpin injustices across the board. While there is increasingly more attention put on reforming the front end of incarceration, including the 2019 bail and discovery reforms, perhaps no issue better exemplifies New York State’s orientation around prosecutors than the apparent tolerance government actors have towards wrongful convictions, most of which are the result of prosecutor or police misconduct.
Currently, New York ranks third in the country for the most wrongful convictions, according to the Innocence Project, a number that reflects just the tip of the iceberg. Over the past 10 years, there have been 2.5 million arrests in New York City. If just 1% of those cases led to a wrongful conviction — a conservative estimate — that’s 25,000 cases. Since 1989, there have been 2,800 exonerations nationwide.
Most district attorneys in New York do not even attempt to go back and rectify the wrongs of the past. Those that do typically approach the effort with an incredibly limited scope. Brooklyn’s Conviction Review Unit was once considered a national model — a result of both former District Attorney Ken Thompson’s particular vision and the exceedingly low bar across the country — but has had little to show for itself in recent years.
Just this week in Brooklyn, Anthony Sims — who has been incarcerated for 25 years for a crime he says he did not commit — was presenting a compelling case for exoneration based on a clearly problematic 1998 trial where evidence of Sims’ innocence and of another person’s possible guilt was withheld. The district attorney’s office is stonewalling, with the lead prosecutor, who also happens to be the controversial now-retired head of the Conviction Review Unit, claiming he has no memory of the case.
It should not be this difficult to undo a wrongful conviction, especially in a state where it is so easy to incarcerate in the first place. New York is one of just five states in the country that does not provide a right to attorney in post-conviction cases. And one of just another small handful that precludes the majority of people from even getting a hearing on a wrongful conviction because of a 2018 Court of Appeals case that barred almost all people who pleaded guilty from getting a conviction vacated even if they could prove they were innocent.
The governor and the Legislature can rectify this immediately, if they care to do so.
Encalada-Malinowski is the civil rights campaign director at VOCAL-NY.
