Defunding the DA and Prosecutorial Accountability

Bragg is serious about culture change and has a clear plan to keep his office accountable to the community. He will implement clear expectations for ethical prosecutorial practices via “top to bottom internal messaging,” hold supervisors and bureau chiefs responsible for improper conduct of line ADAs, standardize policies that are currently inconsistent across the various trial bureaus, and publicize internal memorandums. He appears unafraid to discipline or fire staff at any level who refuse to follow his policies, and he has a managerial track record of imposing discipline when necessary. He places a strong emphasis on the importance of collecting and publicly disseminating data on racial disparities in law enforcement and prosecution in order to drive progressive policy changes, something that Vance’s office does not do. He believes that prosecutors should be better attuned to the needs of the communities they purport to represent rather than insulated and out of touch. 

Bragg stood with community groups calling for a $1 billion reduction in the NYPD’s budget and dismantling the Quality of Life Unit and other problematic police units that focus on minor offenses. He supports a community budgeting process to determine how to spend civil asset forfeiture money and would prioritize putting those funds toward reentry, mental health and substance use programming, and educational and job support efforts.

Bragg committed to include defense attorneys on his transition team, to reduce his staff in accordance with falling crime rates, and to stop requesting more money for the DA’s budget every year.  However, it is evident that he wishes to retain much of the DA’s existing discretionary power when it comes to charging and sentencing. Bragg believes that the Manhattan DA should focus on prosecuting those who perpetrate “real harm” or pose a “safety” risk to the community. He appears to believe that offenses such as gun trafficking, money laundering and other financial crimes (which he prosecuted in the federal system), as well as sexual offenses are under-prosecuted. This raises concerns that he will not significantly scale back the scope of the office but simply redirect its efforts.

Rubric Category: Harmful approach: will maintain scope of power but redirect prosecutions, e.g., the “progressive prosecutor”

Combating Systemic Racism

Bragg states that “the racial disparities issue is a core reason why I worked on criminal issues for my entire career; it’s a big driver for me.” Bragg brought up systemic racism repeatedly and consistently throughout the entire 90-minute interview. Bragg himself has been subjected to racial profiling and stop-and-frisk encounters with police. Members of his family have been incarcerated. He understands that every step of the criminal punishment process is rife with racial discrimination. He intends to use real-time data gathering to rectify these disparities from the outset. He pledged to never seek a no-knock warrant, to never use peremptory challenges on black jurors, and to stop crediting the NYPD’s gang database. Bragg said “[the] NYPD gang database is “garbage in, garbage out.  And the notion, this kind of goes back to transparency, that you can end up in this database for reasons we don’t understand, and you can never get out.” 

Still, Bragg’s own role in perpetuating the racist criminal punishment system should not be discounted. As a former federal prosecutor under Preet Bharara, Bragg worked at an office that prosecuted huge numbers of drug, gang, and immigration cases primarily against Black and brown New Yorkers. 

Rubric Category: Least harmful approach: will shrink the power and reach of the office

Policing the Police

Bragg would hold police accountable to the community by establishing an independent unit (housed in a separate building) tasked with the investigation and prosecution of police officers for everything from excessive force to lying, and he would train ADAs to evaluate cases critically and carefully assess officer credibility throughout prosecutions. He believes perjury is not taken seriously enough and is proud of his track record for prosecuting officers for lying. He would also create a publicly accessible “no call” list of officers with credibility problems and would refuse to call these officers to testify in any case, consistent with his past actions as a prosecutor.

Bragg opposes the raids and militarized policing favored by NYPD’s gang unit and other problematic units and intends to scrutinize the cases they bring, but he stops short of categorically refusing to bring conspiracy charges. In light of this refusal, we again note that  Bragg worked as an assistant US Attorney under Preet Bharara (who has also endorsed Bragg’s candidacy). Though Bragg was not in this unit, Bharara infamously abused his power to use militarized raids to ensnare and bring gang indictments against young men of color who had no ties to gangs or charges of violence against them.

Bragg also did not commit to ceasing Vance’s practice of using proffer sessions to gather information on people the office believes to be gang-affiliated, but he would make the practice more “thoughtful” and less “reflexive.” And while he believes surveillance gadgets are overused by the DA’s office, he still supports a wide range of surveillance tactics to address what he perceives to be “real harm.”

Bragg wants to divert funds from the police to community violence interruption initiatives such as CURE Violence and credible messengers to prevent crime before it happens.

Rubric Category: Least harmful approach: will shrink the power and reach of the office. 

Abolishing Cash Bail and Pretrial Detention

Bragg would abolish the use of cash bail. He would request supervised release and remand in cases involving a real risk of flight. In determining risk of flight, Bragg is acutely aware that “dangerousness is generally a proxy for race” and would make sure his assistants don’t use these unlawful reasons to justify bail requests. He would only rarely request supervision for misdemeanors, but he would not commit to never requesting it in such cases. He characterizes proprietary risk assessment instruments as racist. 

Rubric Category: Harmful approach: will maintain scope of power but redirect prosecutions, e.g., the “progressive prosecutor”

Ending the Criminalization of Poverty, Mental Illness, and Substance Use

Bragg seeks to stop the criminalization of poverty and homelessness by radically changing the operations of criminal court. He plans to expand the use and quality of diversion programs for those struggling with addiction or mental health. He believes that medical professionals, not DAs, should be responsible for decisions related to mental health and drug treatment and he would not reflexively ask for jail sanctions when a person experiences relapse.  Here too, Bragg touched on his personal experiences:  “My dad struggled with addiction, and you can’t do that around a court calendar.” However, even with this emphasis on treatment as opposed to incarceration, he endorses the drug court model, which has been widely critiqued for increasing incarceration and not centering health needs.

Bragg supports the legalization of marijuana with an important racial justice caveat, “…marijuana is likely to be legalized in the next session, and that is fine with me so long as there are the social justice / equity principles they’re talking about.  Marijuana has been legal for white people for like 50 years.  I’m fine with it, but I do think that component, which is what held it up in the legislature last year is a critical component.”

Rubric Category: Harmful approach: Will maintain scope of power but redirect prosecutions, e.g., the “progressive prosecutor”

Support for Decarceral Outcomes and Sentencing

Bragg has released a list of “low-level” or “broken windows” offenses his office would decline to prosecute, including some NYPD-created offenses like resisting arrest where there is no probable cause to arrest and “lucky bag” cases (where officers plant a decoy bag and arrest the person who picks it up). However, his list is disappointingly limited and includes offenses that Vance already routinely declines to prosecute, such as marijuana possession, fare evasion, and loitering for the purposes of prostitution. And troublingly, Bragg would continue to prosecute some buy-and-busts (police-initiated drug sales) although he admits they are not a good use of police resources. He would continue to prosecute many “bump-ups” (misdemeanors prosecuted as felonies based solely on past convictions) on a case-by-case basis, including driving while intoxicated (DWI) charges, knife possession, forcible touching, and domestic violence cases. However, he would decline to continue charging bent Metrocards as felonies and lobby package theft as violent felonies.

For many offenses that Bragg believes are currently over-prosecuted, such as conspiracy and obstruction of governmental administration, he would still retain the ability to bring such charges in “unique” or “significant” cases. For example, although he will not use conspiracy charges “to establish guilt by mere association” as Vance does, he will “follow the money” and “follow the contraband,” wielding these laws against actors he regards as “highly culpable” or influential such as politicians and drug kingpins. Bragg often invoked extreme or outlier cases as justification for his refusal to make categorical commitments not to charge certain offenses, playing into popular fears about “brutal violence” related to drugs and gangs.

Bragg indicated that he would generally respect the wishes of complainants, particularly in domestic violence cases, when they no longer want to proceed with a case, unless he felt they were being coerced.  However, he would not commit to declining to prosecute all police officer-witness-only forcible touching (e.g., subway groping) where the complainant does not know or allege that anything happened, alluding to a few highly-publicized “horrific” incidents. He would, however, end the Vance policy of not making plea bargain offers on these cases. 

Bragg would offer pre-arraignment diversion to “virtually all DAT-eligible cases” to allow cases to be dismissed without the accused ever having to come to court provided they participate in some kind of programming. While a step in the right direction, this does not truly shrink the scope of the office and assumes each charge is indicative of guilt and each person in need of programming.

Bragg would use the minimum sentence as the “default” in any case, with supervisor approval required to exceed it.

Rubric Category: Harmful approach: will maintain scope of power but redirect prosecutions, e.g., the “progressive prosecutor”

Commitment to the Presumption of Innocence

Bragg has a personal understanding of how the process of being charged with a crime and hauled into court amounts to punishment in and of itself, and he would support practices to lessen the burden on people accused of crimes. Bragg said, “I think one of the worst things about the system that doesn’t actually involve someone being detained is the number of times people have to go to court.” Refreshingly, Bragg clearly understands the adversarial nature of the criminal legal system and does not seek to overstep his role as a prosecutor when discussing diversion programming or restorative justice models. He also demonstrated a high level understanding of “proffer sessions” and a realistic approach to using them. Proffer sessions are broadly abused by Vance; the current iteration requires a detailed admission of guilt to be made and assessed for intricate truthfulness by multiple assistant DAs and supervisors before a favorable plea bargain offer is made. Bragg didn’t discount the use of a proffer session, especially if requested by the person accused of the crime, but said any proffer should be thoughtful and not simply “reflexive” and should serve the overall objective of the prosecutor, not act as a gatekeeping mechanism. He also talked about his experience with offering “reverse proffers,” where the prosecutor spells out the evidence gathered against a person before trial. Were he to direct his assistants to engage in this practice it would indeed be a first for low-income people accused of crimes accustomed to an office that hid all evidence until the last legally required moment. 

Rubric Category: Harmful approach: will maintain scope of power but redirect prosecutions, e.g., the “progressive prosecutor”

Correcting Past Harms

Bragg seeks to create a robust post-conviction unit that is independent, objective, and composed of non-prosecutors. He offered valid criticism for the current unit saying: “Barry Sheck wrote an article in the Ohio State Law Journal which lays out how to do this, and it would be based on having full sharing with objective independent people, people not in the office. I know the Manhattan DA’s office is NOT doing that.  I know they have people from the actual case in the room driving the conversation and that’s just terrible.  We know how to do this, and it’s been set up in other places, there’s been a book written on it, and I would follow the book.” 

When it comes to appeals, he would not categorically decline to raise the ‘harmless error’ doctrine (i.e., argue that a legal error does not entitle a defendant to a new trial because it did not affect the conviction), but he believes it is overused, and he would only invoke it where the issue in question is “truly inconsequential.” He would concede appeals that raise serious structural or due process errors such as claims of ineffective assistance of counsel. He also supports reforms that would permit appellate courts to review grand jury errors and would improve the transparency of the grand jury process. 

Bragg committed to supporting all pending legislation aimed at ending mass incarceration and decreasing harm within the criminal punishment system. He would support the introduction of legislation repealing mandatory minimums as well as the state’s mandatory persistent sentencing scheme. Bragg cites supporting larger legislative reforms as one of the reasons he is running to be top prosecutor. He will use his enormous discretion as the District Attorney to stop charging a wide swath of crimes, the cessation of which he believes will contribute to the safety of communities in Manhattan. Then, armed with that data, he can use his bully pulpit to shape public opinion and inform new legislation that would remove certain crimes from the books, which would in turn remove the prosecution of such crimes from the discretion of any future District Attorney. He understands how impactful systematic change in Manhattan can be used as a model for the rest of the state and country. 

Rubric Category: Harmful approach: will maintain scope of power but redirect prosecutions, e.g., the “progressive prosecutor”