How Should Prosecutors Define Success: The Race for Manhattan District Attorney
By Reagan Daly, Research Director, and Jennifer Ferone, Associate Research Director
On June 22, New Yorkers will go to the polls to cast their vote not just in the New York City mayoral primary, but also for Manhattan’s next district attorney (DA) as well. There are currently eight contenders in the democratic primary, a diverse group that includes both former prosecutors and defense attorneys, and those with state and federal experience. While a lot of attention has focused on how each candidate plans to continue the investigation into former President Trump’s finances opened by current Manhattan DA Cyrus Vance, the new DA will be responsible for advancing justice on a much broader scale as well. Over the past several months, candidates have been weighing in on a variety of issues, from declining to prosecute low-level charges to addressing gun violence. Many of their proposals follow in the footsteps of other progressive prosecutors in places like Cook County, Philadelphia, Suffolk County, and New York’s own Brooklyn. Even more important than specific policy and practice proposals, however, will be making decisions that adhere to a core set of principles related to fairness, trust, and community safety:
Center racial equity in reform work. Racial and ethnic disparities are pervasive in the criminal legal system, and despite reform efforts that reduce incarceration and improve other system outcomes, racial inequities persist. In fact, there are many examples of otherwise successful reform efforts that have exacerbated disparities. Research shows that disparities are driven largely by practices early on in the system, including decisions made by prosecutors. This means that prosecutors also have a responsibility to confront them. Currently, however, there are very few examples of policies and practices that have been tested and shown to promote racial equity. With that said, the next Manhattan DA has the potential to contribute examples by grounding policy and practice reforms in a foundation of data, analysis, and performance measurement—both as reforms are being developed, to ensure that they are informed by an understanding of where disparities exist and what drives them (for example, the role that criminal history criteria play in driving disparities in diversion eligibility), and after they are implemented, to evaluate impacts. This would leverage the significant ongoing work that DA Vance has already been doing to examine how disparities in office decision-making have changed over time, as new efforts during his tenure have rolled out.
Reduce the footprint of the criminal legal system. Recognizing the harm that can be caused by the system, there has been growing momentum to limit its scope, particularly where it poses little risk to community safety. One way that prosecutors have been doing this is declining to charge specific categories of crime. In Manhattan, DA Vance has established policies to decline a number of specific charges, including marijuana smoking and possession, turnstile jumping, non-violent violations and infractions, unlawful assembly/disorderly conduct, and most recently loitering for the purposes of prostitution. These policies are aligned with similar practices in other boroughs and nationally. The next Manhattan DA should build on these efforts by considering what other types of charges can be safely diverted, with a particular focus on cases that are accepted but then dismissed quickly. Recent research shows that diverting both misdemeanors and nonviolent charges upfront can actually reduce crime later.
Make alternatives to incarceration the default. For cases that are formally charged, prosecutors have increasingly shifted response away from incarceration. Incarceration is a deprivation of a person’s liberty that has huge collateral consequences, even after a few days. Prosecutors across the country recognize these harmful consequences and have started taking actions to confront them. In addition to not prosecuting certain low-level charges as described above, they are also limiting bail requests and increasing diversion to minimize incarceration for people who do enter the system. In New York City, DAs Vance and Gonzalez both ended bail requests in most misdemeanor cases before state-level bail reform took effect in New York; and prosecutorial diversion programs for people with behavioral health and substance use needs have been emerging across the boroughs. Many of the city’s DAs are also making commitments to pursue the least restrictive responses at charging, plea, and sentencing. The new Manhattan DA should not only continue existing efforts but advance a prosecutorial culture that eliminates the need to use the term “alternative” altogether by considering other populations that can be safely diverted as well.
Go beyond conviction rates as a measure of success. Following from the first three principles is that idea that DAs must rethink the ways in which they are defining and measuring success. For decades, conviction rates were the dominant (and in many cases only) indicator. Today, a more nuanced set of metrics is imperative to assessing progress toward goals and objectives such as fairness and community safety emerging in current reform agendas. Metrics tied to declination, dismissal and diversion rates (among others) are critical, as well metrics that focus on disparities in these outcomes. Researchers at Florida International University and Loyola University-Chicago work with prosecutor’s offices across the country to develop and implement a framework to measure prosecutorial performance related to capacity and efficiency, community safety and wellbeing, and fairness and justice. The framework provides a rich example of the types of indicators prosecutors should consider as they embark on data-driven reform. The new Manhattan DA should draw on this framework or other examples in the field as they measure the success of new policies and practices that are implemented as part of their new reform plan.
Increase transparency and engage communities. In addition to redefining success, prosecutors have also begun to recognize the importance of communicating with the public as a mechanism of accountability. Manhattan unveiled a new public-facing dashboard last month that includes data on office decisions ranging from case acceptance to disposition. This dashboard follows in the footsteps of DA’s offices in Cook County, San Francisco, Milwaukee, Tampa, and Jacksonville. In addition to dashboards, reporting publicly on research and evaluation findings is critical. Back in 2014, the Manhattan DA’s office undertook one of the first public-facing studies of racial and ethnic disparities in prosecution, paving the way for other offices around the country to do the same, including the Brooklyn DA, which has partnered with ISLG to understand the racial equity implications of prosecution practices before the launch of their Justice 2020 reform initiative. This kind of transparency should continue.
Of course, transparency alone does not constitute community engagement—the community must have a voice in how success is defined and measured,and how policies and practices are shaped. The current DA’s Criminal Justice Investment Initiative is a model for how prosecutors and grassroots providers can work together to serve and support communities. The next Manhattan DA should consider how to similarly incorporate and empower community voices into prosecution work itself.