In his now-infamous “Day 1 Memo,” new Manhattan district attorney Alvin Bragg sets out a number of controversial directives, such as non-prosecution of crimes including resisting arrest, trespassing, fare evasion, and prostitution. Bragg’s office would broadly reduce charges for crimes including knifepoint robbery, commercial and some residential burglaries, weapons possession, and “low-level” drug dealing. There will be a presumption of no jail time for almost any crime, and sentences of life without parole will be banned even for cop killers, barring “exceptional circumstances.”

Over the last two years, the number of shooting victims citywide doubled, while car thefts rose 92 percent. Murders rose by almost half in 2020 and then rose again, even as “clearance” rates for murders dropped from 86 percent at the end of 2019 to 46 percent at the end of 2020. In 2021, hate crimes nearly doubled; non-rape sex crimes rose by almost a third. Yet Bragg believes that criminal offenders are less likely to commit more crimes if they avoid jail time or heavy sentencing and get diverted into drug treatment or mental-health programs. His vision of public safety emphasizes sympathetic and trusting treatment of criminals and downplays the risk for future victims.

Bragg is just starting his term, so Manhattanites will have to wait for another election to choose someone with a different agenda. Meantime, here are three approaches that the interested public can take in an effort to mitigate the impact of these policies.

Demand data—and unbiased analysis. Bragg cites data from New York City’s Criminal Justice Agency (CJA), which provides pretrial services in place of pretrial detention, and from the Mayor’s Office of Criminal Justice, which, for the past eight years, sought to present the progressive policies of former Mayor Bill de Blasio as successful at reducing crime. While both sources use real court and arrest data, their aims are to show policies reducing prosecution, detention, and incarceration in the best light. “Data show,” Bragg says, “that the overwhelming majority of those released pretrial do not commit a violent crime while at liberty.” Bragg points to the CJA’s Pretrial Release Dashboard, where an interactive graph shows that for, say, January 2020, almost 96 percent of individuals on pretrial release had no new offense. What the graph doesn’t show is how many of those 96 percent were rearrested in the previous or following months. We’re not seeing a picture of the total rates of rearrest but only a snapshot of who was caught in a given month.

In contrast, the data dashboard of the New York State Unified Court System indicates that for all defendants arraigned on charges in January 2020, more than half of those on “nonmonetary” supervised release for felony assault were rearrested—the majority for felonies. Of those on nonmonetary release for misdemeanor assault, over 73 percent were rearrested—one-sixth of them for violent felonies. These data do not include those on pretrial release who were rearrested outside of New York, those who committed sub-misdemeanor violations or infractions, or the growing proportion who committed crimes but were not arrested. As the collapse of the murder clearance rate indicates, drastically fewer criminals are being brought to justice than in the past. With Bragg’s new guidelines, a person out on pretrial release who trespasses, drives with a suspended license, or solicits a prostitute may not get arrested because cops know that these are no longer prosecutable offenses.

We must push Bragg’s office and associated agencies for more honesty in these re-offense numbers and for more transparency and accountability regarding how well the mandated supervision tracks and reforms criminals.

Trust assistant district attorneys. Across the country, line prosecutors are resigning from offices in cities that have elected “progressive prosecutors,” as defined by their pursuit of policies similar to Bragg’s. These lawyers have foregone lucrative private-sector positions to work long hours representing the public in court. Now they are fleeing this work, frustrated by rules against appropriately prosecuting, charging, and sentencing serious criminals. In New York, assistant district attorneys’ labors are doubly hampered by statewide discovery “reforms,” which increase the amount of material they must compile for defense attorneys—and often mean that they cannot get their cases ready in time, causing a huge spike in dismissals.

Bragg’s Day 1 Memo sidelines the role and insight of ADAs, not only by creating various charging and sentencing decisions for which special permission is now required but also by no longer requiring face-to-face ADA “proffers” with defendants to assess whether they are good candidates for program diversion or beyond rehabilitation. Prosecutors need to spend more time speaking with defendants, their attorneys, and the investigators involved.

Bragg’s memo further stipulates: “If a case is determined to be appropriate for a disposition involving services, the Office will rely on outside professionals to determine the appropriate service and length of placement.” Why should outsiders know better than ADAs? Prosecutors are best positioned to adopt a truly holistic approach, collaborate with case investigators, and recognize the issues and needs of repeat offenders. We should pressure Bragg’s office to respect ADAs’ judgment.

Hope for the best. Finally, we can hope that Bragg will make quiet revisions and allow for loopholes. He has yet to delineate most of the exceptions to his rules. Perhaps he will allow the prosecution of otherwise “decriminalized” charges in cases where offenders have prior arrests. Maybe all cop killings count as “exceptional” circumstances, eligible for life without parole. Better yet: maybe we will see a Day 20 or Day 100 Memo that restores substance—and sense—to Manhattan’s prosecuting office.

Photo: Michał Chodyra/iStock


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