Peter Reinharz is a former chief prosecutor of New York City’s Juvenile Court, author of Killer Kids, Bad Law: Tales of the Juvenile Court System, and a City Journal contributing editor. He recently spoke with City Journal associate editor Daniel Kennelly about Alvin Bragg, progressive prosecutors, and crime in New York City.
You’ve argued that the actions of progressive prosecutors like Alvin Bragg are an “assault on the foundations of our republican form of government.” Didn’t New Yorkers give him an electoral mandate for his policies?
Manhattan voters did vote for Alvin Bragg. But they were electing a district attorney. The voters were not delegates to a constitutional convention and thus were not in a position—even if they wanted to do so—to change the fundamental structure of the American and New York State governments. Our form of government, both state and federal, is comprised of three separate branches that provide a system of “checks and balances” to ensure that no single branch becomes dominant. The legislature writes and passes laws, the executive branch enforces them, and the judiciary interprets them. Bragg, as a district attorney, is an elected member of the executive branch of the government. Thus, when he takes his oath of office to preserve, protect, and defend the Constitution of the United States and the Constitution of the State of New York, he is sworn to uphold the laws passed by the people’s elected representative in Congress and in the state legislature.
For example, following Bragg’s election, he promised not to enforce certain laws like prostitution, transit fare evasion, and other minor crimes. He also indicated, though he appears to have modified this position, that he would treat certain armed felonies as misdemeanors. To me, this appears to be a complete misunderstanding of the way our government works. When the state legislature classifies an armed robbery as a “B” felony, that is not a suggestion subject to the whim of a local prosecutor. That is the law.
Of course, a DA is vested with a certain amount of discretion. But discretion is case-based. While there may be instances that warrant granting leniency to a participant in an armed felony, the prosecutor’s discretion is linked to the case. No member of the executive branch of government is vested with discretion to ignore the will of the legislature. In fact, it is the job of the executive to enforce that legislative will.
How should this situation be addressed?
Bragg is hardly alone in his assertions of ultimate authority over the criminal codes. We have seen district attorneys in other cities decide that they will not enforce statutes that they don’t like. A proper way for a district attorney to achieve this goal would be to have that DA go to the state legislature and seek statutory changes consistent with his agenda. The wrong way to do it is to ignore the law. Whether it is disregarding shoplifting in San Francisco, allowing encampments on public property in Seattle and Los Angeles, or refusing to address prostitution in various locales, without legislative approval all these prosecutors are failing in their constitutional responsibilities. And ignoring the legislature is not a tendency limited to prosecutors—nor to Democrats. We have seen situations where some of the highest officials in the federal government have refused to enforce immigration laws, just as we have seen former officials from previous administrations ignore lawful congressional subpoenas.
So long as Congress and state legislatures allow themselves to go unheeded, this will continue. Instead, the Congress and the state legislatures should be invoking their oversight conventions to determine why these executive officers are ignoring the law. The legislators who refuse to hold executive branch members accountable for their rejection of our republican form of government are just as complicit in the breakdown of our system. Legislators should be demanding to know why they, the elected representatives of the people, are being ignored; and if the executive officer is unwilling to abide by our constitutional system, then the legislature should impeach that person. Additionally, if the legislature in New York fails to hold executives to account for their refusals to follow the law, then the governor should look to Article 13 of the New York State Constitution to consider removing the noncompliant officer.
What have you seen so far from Mayor Eric Adams’s pick for NYPD commissioner, Keechant Sewell? And how would you describe the differences between the job she’s coming from—Nassau County Chief of Detectives—and her new job as head of the nation’s largest police force?
Having never met Commissioner Sewell, I cannot opine upon her appointment to New York City’s top cop position. She has only been on the job for a few weeks, and in that time, she has faced enormous challenges. The murders of Officers Rivera and Mora are perhaps the toughest challenges she could face. She handled herself with grace and poise during the funeral services, and I hope that, during the rest of her tenure as commissioner, she never has to give another eulogy for a slain officer.
Commissioner Sewell has been handed an immensely difficult task. She needs not only to provide training and supervision for 35,000 NYPD officers but also to change the culture of communities that have become distrustful of police. Whether that distrust is warranted is irrelevant. Commissioner Sewell will need to deal with all the communities across the five boroughs, and I wish her the best in getting the job done. I do not envy her immense task.
What can Adams and Sewell do to bring crime under control if prosecutors aren’t on the same page?
Mayor Adams has hit the right notes in addressing what needs to be done. He recognizes that New York City will suffer financially and culturally if safety is disregarded. He has talked about the importance of good policing and the need to respect the police. But perhaps because he was a former police officer, Mayor Adams also knows that he needs to address the crime wave beyond the walls of One Police Plaza. Mayor Adams has called for undoing the damage that has been done by the state legislature’s botched bail-reform law and has also called for repealing the senseless “Raise the Age” legislation that moved most 16- and 17-year-old offenders into Family Court instead of remaining in criminal court. No one, of course, wants to see adolescents who commit a single low-level crime dragged through the criminal justice process and sent to prison. But 16- and 17-year-old violent offenders, or those who continue to repeat their crimes—even if nonviolent—cannot enjoy the leniency that is built into the Family Court process. Public safety is the mayor’s first priority; so far, he has called for the right legislative action. Once again, these repeals are a matter for the legislature, and this fall, members of both New York’s Senate and Assembly are up for reelection. If the voters want to support the mayor’s agenda, they can support his proposals at the ballot box.
What’s the best book or essay you’ve read recently on crime and the justice system?
There is little doubt that James Q. Wilson’s Crime and Human Nature is the bible of the criminal justice discipline. But my favorite read has be to the late Judge Harold J. Rothwax’s Guilty: The Collapse of Criminal Justice. Judge Rothwax takes the reader on an up-close tour of the workings of our criminal justice system and explains, in the grittiest of details, how the process has evolved into one that favors the offender at the expense of the victim and the community. Other writers to consider are Charles Murray, Alfred Blumstein, Heather Mac Donald, and John DiIulio. Readers should also peruse Myron Magnet’s collection of City Journal essays, The Millenial City. When you read that book, it is apparent that we New Yorkers have been down this road before. Perhaps the saddest part of that trip is that, with better leadership, we wouldn’t have to make the journey.
Photo: iStock/Vladimir Cetinski