The city of New York is covered by five different prosecutor’s offices in Manhattan, the Bronx, Brooklyn, Queens, and Staten Island. Each elected District Attorney and the area he or she serves has its own particular personality based on who’s in charge and the community served.
Some boroughs are tougher on defendants, some are more fair. The judges in each borough reflect the approach of the District Attorney in charge.
For example, prosecutors in the Bronx won’t ask for bail on low-level crimes. There’s a huge impetus in the Bronx not to request bail except on the most egregious charges. In Manhattan, however, not only will prosecutors ask for bail on almost everything, but the judge will likely impose it. Same crime, same background of defendant — just different real estate.
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The Bronx has always been more chill than Manhattan. Many assistant D.A.s from the Bronx become defense attorneys when they finish their stint. My theory is that they’re closer to understanding defense work. More than other assistant D.A.s, they deal in poor neighborhoods with poor complainants. Today’s complainant is tomorrow’s defendant. The prosecutors I’ve worked with there are often down-to-earth, open-minded, and reasonable.
The Manhattan D.A.’s office, on the other hand, comes at every case with a presumption-of-guilt attitude that maximizes a defendant’s exposure to jail.
If a defendant can be charged with robbery instead of simple larceny, that’s what they’ll do, even if the facts are equivocal or more consistent with larceny. Less punishment-centered bureaus, such as those of the Bronx and Brooklyn, might indict for both crimes — the felony and the misdemeanor — thus leaving the decision on what’s been proven to a judge or a jury. Manhattan doesn’t include the lesser crime in the indictment, which often pushes a jury to convict on the greater. It’s a strategy choice to achieve maximum punishment. When defendants have criminal records, jurors are reluctant to outright acquit, but they might opt on close cases to convict of a lesser crime. If no lesser crime is available, jurors will often convict on the greater rather than let the defendant go free.
Of all the boroughs right now, Brooklyn wins the prize for innovative thinking and action. That office is addressing some big policy issues relating to criminal justice in efforts to make the system more fair to people of color and immigrants in their community.
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Take marijuana use. While marijuana possession (in personal quantities) has been decriminalized in New York City, people in Manhattan are still issued summons (and some arrested) for smoking in public. Police still use the excuse of seeing “a marijuana leaf” in a car as a basis to search the entire vehicle. In Brooklyn, the prosecutor’s office announced last week that it has taken the additional measure of affirmatively erasing misdemeanor marijuana convictions. In a Twitter post, Brooklyn District Attorney Eric Gonzalez wrote, “This is a big deal, and part of our promise to enhance fairness and equity.” In addition, all marijuana warrants and summons will be cleared.
As anyone who’s been convicted of a crime knows, a conviction even just for marijuana has repercussions. According to the Brooklyn’s D.A.’s press release: “A criminal record can seriously impede a person’s ability to get a job, education, housing and other important services. It is only fair to relieve these individuals of that burden and allow them to turn over a new leaf and move on with their lives. I encourage anyone who may be eligible for this important relief to take advantage of this opportunity.” People with marijuana convictions can submit a motion starting Sept. 21 in what the prosecutor’s office hails as the “Begin Again” event.
This is a great first step, and hopefully one that will lead to greater recognition that all convictions, yes, even felonies, should be revisited and potentially expunged so that those convicted get a new lease on life.
Another innovation that hopefully sets a trend for other prosecutor’s offices around the country, is the establishment of an in-house panel to review certain convictions of non-U.S. citizens. This comes in the form of a post-conviction, 440 motion made by a defense attorney. As it stands now, even a misdemeanor conviction can impede a legal-permanent resident’s ability to travel outside the country or become a citizen, even if that conviction dates back 30 years.
Normally, the decision on whether to vacate a conviction is made by a judge. But with this approach, the District Attorney’s office will consider a post-conviction motion (called a 440) and use a gauge of fairness before it even gets to a judge to determine if prosecutors will consent to the relief. This is a wonderful time saver. It takes the guess work out of what a judge might do, and lets the prosecutor put its money where its mouth in these our “woke” times.
Cy Vance, if you’re reading this, think about it.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.