Last Monday, new Manhattan district attorney Alvin Bragg released his “Day 1” memo, instructing prosecutors to downgrade charges against armed robbers who threaten store employees. Five days later, 19-year-old Kristal Bayron-Nieves was working the Saturday-night shift at a Harlem Burger King, just weeks into her new job, when an armed robber shot her to death. Bayron-Nieves’s murder is a viciously timely example of how Bragg’s hopelessly naïve approach to parsing crime—adopting the robber’s classic excuse, “I didn’t mean to hurt anyone”—will result in more bloodshed and, ironically for a progressive prosecutor determined to reduce incarceration, in more young men going to prison.

Bragg’s Monday memo couldn’t have been clearer. “An act that could be charged” as armed robbery “in a commercial setting” should be downgraded to a misdemeanor larceny, he wrote, “if the force or threat of force consists of displaying a dangerous instrument or similar behavior but does not create a genuine risk of physical harm.”

Of the long menu of Bragg’s new “do-not-prosecute” directives, this one got the most attention, almost all of it negative—so much so that a “surprised” Bragg quickly backtracked after what he called a “long week.” “If you go into the store in Manhattan and used a gun to rob that store, that is armed robbery, that is serious and we will be prosecuting armed robbery in Manhattan,” he was telling Al Sharpton by Saturday morning.

Bragg tried to spin the public reaction to the memo as a misinterpretation, but it wasn’t. The memo referenced three statutes, the first of which specifically lists “pistol, revolver, rifle, shotgun, machine gun or other firearm” as its sole examples of “deadly weapons” used during the course of a robbery. The memo listed no exemption under which assistant DAs should continue to prosecute gun robberies as felonies. Nor did the memo ever seek to reconcile the obvious inconsistency, even without reference to the statutes: someone “displaying a dangerous instrument” is, by definition, posing a danger. Nor can an observer blame the language on a simple oversight: Bragg had two months to prepare his big reveal. No, the flip-flop was exactly what it looked like: Bragg, who already appears to be in over his head in his new job, was shaken by the bad reaction and changed his mind.

Let’s hope his mind stays changed—and changes further. The only reason a robber ever displays, brandishes, or points a weapon at a store clerk is to create the fear of grievous or deadly violence. “He’s not really going to stab me” is probably not the wisest reaction to someone waving a knife in your face. All robbery victims, even when they escape physically unscathed, thus experience “a genuine risk of physical harm.”

Bragg also neglected the fact that recidivist criminals know exactly what they can get away with. If someone commits an armed robbery in which no one is harmed, and skates on a misdemeanor, he’ll do it again. Do this enough, and someone will get hurt. The “botched robbery” or “robbery gone wrong” narrative is a perennial media error: all robberies have “gone wrong” from the start. A victim resists, or doesn’t comply fast enough with a robber’s demands, and is shot or stabbed; a robber thinks the victim has seen too much of his face and fires his weapon.

Bayron-Nieves’s preventable violent death at Burger King was exactly why prosecutors charge armed robbers who target stores with felonies, whether they are brandishing guns, knives, or hammers—even when no one gets hurt. In the Harlem Burger King case, witnesses told the New York Post that the robber “turned to leave” after taking $100 in cash, but then he “whipped around again and shot Bayron-Nieves in the torso.” Whether the killer set out to pose “a genuine risk of physical harm” with his “dangerous instrument,” or whether he panicked or got angry for some reason and pulled the trigger, is irrelevant.

Tolerating armed robberies is an especially misapplied strategy when the entire point of this turnaround, according to Bragg, is so that mentally ill or addicted suspects can get help rather than punishment. “I will divert most mental health and addiction cases away” from the justice system, Bragg said during the campaign. Yet repeat armed robbers aren’t mentally incompetent. They are not suffering from delusions. They can distinguish right from wrong, cause from effect. Someone who has the foresight to procure a weapon, conceal it in street travel, and use it to steal from store workers has already passed several competency tests. He can plan ahead. He has a twisted ability to understand how other people think: he knows his victims will react with fear, and thus likely comply with his demands. That the perpetrator prefers to engage in this wrong behavior to feed an addiction or because it is superior to other alternatives—like having to comply with social-services bureaucracies to secure food and shelter—is not a sign of mental breakdown but of free choice.

Nevertheless, even if one agrees with Bragg’s reasoning, he has already failed to follow through on the tactics. In between his memo and Bayron-Nieves’s murder last week, a robber allegedly threatened workers in a Manhattan T.J. Maxx store with scissors as he stole merchandise. Prosecutors, apparently following their boss’s new instructions, charged him only with shoplifting. The suspect went free without bail.

But this particular suspect has engaged in similar behavior before, and recently. He already faces multiple open cases for similar violent store robberies. What’s more likely: that the suspect is going to address his purported mental-illness and addiction problems on his own, or that he’s going to escalate this behavior until someone is hurt or killed? Then he’ll face a long prison sentence—but it will be too late for his victims. “These policy changes not only will, in and of themselves, make us safer; they also will free up prosecutorial resources to focus on violent crime,” says Bragg’s memo. Wrong: they will create more violent crime.

The public reaction last week to Bragg’s redefinition of armed robberies as misdemeanor shoplifting offenses obscured some of Bragg’s other changes, which apparently still stand. He’ll entirely forego prosecuting slews of “small crimes,” from farebeating (a continuation of his predecessor’s policy) to trespassing. Broken Windows theory—the presumption, now well-backed by decades of evidence, that such small crimes lead to larger crimes—is out.

After her daughter’s killing, Bayron-Nieves’s mother, Kristie Nieves, told the Post that she had repeatedly complained of feeling unsafe. She “already wanted off the late shift because she was so scared,” the Post wrote. Bayron-Nieves quite rationally understood that the small disorder she witnessed every day, spurring her to ask for more security, could portend bigger problems.

Nieves encouraged her daughter to go to work anyway, because, she recalled telling her, “you have to be responsible.” Who deserves the protection of the state—people conscientiously working to “get a better life,” as Nieves described her daughter, or people who have chosen to steal violently for a living? And why is it even necessary to ask this question?

Photo by David Dee Delgado/Getty Images


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