In this week’s special episode, former prosecutors Thomas Hogan and Jim Quinn join Rafael A. Mangual to discuss new Manhattan district attorneyAlvin Bragg and the options available to preserve public order when prosecutors won’t prosecute.

Audio Transcript

Ralph: Good afternoon, and welcome to another Manhattan Institute event cast brought to you by our new Policing and Public Safety Initiative.

Before we get going, I want to just quickly remind everyone watching that during today's event, you should feel free to send us your questions as they come to you through the comment function of whatever platform you're watching us on. I will do my very best to work in as many question as I can during the discussion.

The Manhattan Institute's Policing and Public Safety Initiative, for those of you who don't know, was launched to have a meaningful impact on criminal justice policy debates, not just in New York, but throughout the country, and not just through intelligence, scholarship, and commentary, but also by engaging with and learning from top flight practitioners whose expertise has been derived from their experience. And today's panel is going to be another really good example of that.

The topic of today's discussion is one that I think has been top of mind for New Yorkers in the first month of this year, which is what we should make of Manhattan's new district attorney, Alvin Bragg, who made news when he announced seemingly radical changes to his office's approach to prosecution. In his Day One Memo, Bragg set out a broad list of offenses that will no longer be prosecuted. He also set out new policies that would require prosecutors to down charge in certain kinds of cases.

The memo also places limits on the ability of Manhattan prosecutors to seek bail and pretrial detention, as well as prison and jail sentences, the former of which will now be capped at 20 years. With little room for negotiation, prosecutors in Manhattan, are going to be playing by a new set of rules, and that raises several questions that I want to tackle today.

And to help get us answers as to what this is going to mean for crime and justice in New York City, I'm really just pleased to have with me today two seasoned career prosecutors who have given these issues really deep thought.

First, we have Thomas Hogan, a frequent contributor to City Journal, who's previously served as an assistant district attorney, a federal prosecutor, and an elected district attorney. He has prosecuted violent crime, drug trafficking organizations, political corruption, and terrorism. He's been named to leadership positions in both federal and state law enforcement associations. And in addition to his public service, he's worked in a major national law firm and litigation boutique handling internal investigations and complex litigation. And he's currently in private practice.

We also have James Quinn who recently retired from the Queens district attorney's office, where he served from 1977 to 2020 in various roles that included being the narcotics bureau chief and an executive assistant DA of the trial division. He's also taught law at St. John's University for more than a decade. Gentlemen, welcome to the program. Thank you so much for being with us.

Tom Hogan: Thanks, Ralph.

Jim Quinn: Glad to be here.

Ralph: So I want to start with a question about the Bragg memo, and I want to direct it first to Mr. Quinn. Really, I just want, being a New York prosecutor, given your experience in this, I wonder if you could just give us a brief overview of what's actually in the memo, whether it's been misinterpreted as some people, particularly defenders of the policies, are claiming in recent days. And then I'd like each of you to kind of just talk about what stands out to you as sort of the most concerning aspect of the memo given your history as prosecutors.

Jim Quinn: Well, I mean, it's hard to say whether we are misinterpreting it. I mean, I interpret it by what's written in it and what it means. It's basically broken down into three different sections. One is what he'll not prosecute. One is what he will not ask for bail on and what he will not ask for jail on on defendants who are convicted of various crimes.

Some of the crimes which are not prosecuted are... Some prosecutors are not prosecuting those cases now, but when you're dealing with like marijuana misdemeanors, he's not going to prosecute. And that sounds harmless, but you're dealing with possession of a pound or more of marijuana is still a misdemeanor. Sale of three ounces of marijuana to a person under 21 is still a misdemeanor. He's not going to prosecute those at all. Prostitution cases, he's not going to prosecute those at all.

Now, the police are not making that many prostitution arrests as it is. But when I was in Queens, we had a treatment court for prostitutes, and we used to have 400 defendants in it, and they received counseling and treatment. That number is down to about 20. So there are prostitutes out there now working who are not getting any kind of treatment or any kind of help.

Some of the things that he's not going to prosecute are more troubling. Turnstile jumping, DA Vance was already not prosecuting it. And once he decided that he wasn't going to prosecute turnstile jumping, turnstile jumping went up in Manhattan.

But some of the things that he's doing, a lot of the things that he's talking about not prosecuting have gotten a lot of attention dealing with violent crime. But when you look at some of the things he's not going to prosecute, specifically he says he's not going to prosecute criminal trespass.

And when you look at what he's not going to prosecute, if a principal finds somebody who doesn't belong there and asks him to leave, that's criminal trespass. He's not going to prosecute that. If a police officer comes and arrests that individual for being in the school illegally, and that person resists arrest, he's not going to prosecute either the underlying criminal trespass or the resisting arrest.

If you read this memo, if somebody walks into your house and just stands there and you ask him to leave, he's not going to prosecute that as a criminal trespass. If you were in a New York City Housing Authority Project lobby smoking marijuana or drinking, and you don't live there, you don't live anywhere near there, and a police officer asks you to leave, he's not going to prosecute that.

And that not only puts the people who live there in a terrible situation, but it puts the police officers in a bad situation. I mean, the law is still on the books, and if they arrest that individual, he's not going to be prosecuted. So what does the officer do, just leave it, just walk away? Those are some of the minor things.

But then when you get into the armed robberies that he's not going to prosecute, some of them are actually scary. Now, he he's doing it with commercial robberies. In other words, if somebody walks into a store armed with a deadly weapon, a gun, and takes everything out of the cash register at gunpoint, takes everything out of the store, loads it in a truck, and drives away, in Manhattan, that will be prosecuted as petty larceny, which is an A misdemeanor.

And in New York City, A misdemeanors are DAT'd which means you get a desk appearance ticket, which is like a summons to come to court. You do the same thing in Queens, Brooklyn, the Bronx, or Staten Island, and it's a B felony where you can go away for 25 years in jail. [crosstalk 00:07:11] the same thing.

Ralph: I want to ask you a little more about that because this is something that Mr. Bragg has seemed to have kind of stepped away from a little bit. He gave a talk to the Citizen's Crime Commission earlier this week in which he seemed to imply that there's maybe a little more wiggle room.

And so, when I looked at this provision with respect to armed robbery being downgraded to petty larceny, a lot seems to hinge on this idea whether there's a genuine risk of physical harm. Can you talk a little more about what that might mean, how that might be interpreted in practice?

Jim Quinn: Yeah, what he says is 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... I don't know what that means. If you point a gun at somebody, is that sufficient to create a genuine risk of physical harm? If you point a knife at somebody, a machete, a baseball bat, you just hold it over their head. You don't swing it at them. You don't wave it at them. Does that by itself create a genuine risk of physical harm?

The statutes are written because if you hold a gun on somebody that is a risk of harm to the person that you're holding that gun on. Why do you have that exception in there? Why do you say you're not going to prosecute somebody holding a pistol on somebody in a store? It just doesn't make any sense to me.

Ralph: Yeah. And we already have, I think, one potential example of this provision being put into practice. There was a case of an individual who is alleged to have walked into a Duane Reade on the Lower East Side of Manhattan earlier this month, where he filled a trash bag with merchandise that he didn't pay for. And then, he was confronted on the way out.

The security footage seems to depict him holding a knife up and pointing it at the person confronting him, who then let's him go. And subsequent reporting by the New York Post indicates that that individual was actually downgraded to a class A misdemeanor in that kind of case for petty larceny, rather than armed robbery at knife point.

So I do think you're certainly right, and to sort of express some consternation about that. I know I'm certainly troubled by it. Tom, I want to bring you in because you're also a seasoned prosecutor, but not from New York. I wonder if there's anything about this memo that just strikes you as particularly egregious and as a departure from practice outside of New York City?

Tom Hogan: So like you, Ralph, I watched the Citizens Crime Commission dialogue with District Attorney Bragg. So all of this is going to be seasoned by the condition of if he's going to enforce this Day One Memo. Because a lot of what he said during that dialogue with the Citizens Crime Commission was, "Hold on. I'm not really enforcing it as written."

But let's assume that he actually meant what he said, and he said what he meant, because that's the same thing that Gascon did, the same thing that Krasner did. They wrote these memos, and then they followed them to the letter. But the things that are going to drive people nuts. First, the police, he is going to really pull back on prosecuting resisting arrest.

And the message that sends to the street is it's okay to resist, which means our cops are going to end up in more fights. Every time is he going to decline to prosecute resisting? Not every time, but that's the message that's going out. And it's going out at a time when two of the police officers in New York City were just killed. That message that the police are not safe resonates strongly with the police and the bad guys, and that's a terrible message to be sending out right now.

For regular folks, Jim is absolutely right that trespassing, although it doesn't seem like a big deal right now not to prosecute trespassing, if you want to see what happens when you don't prosecute trespassing, go visit San Francisco and go see the tent cities everywhere. If New York wants tent cities in Central Park, DA Alvin Bragg has just said that's okay with him.

On what's going to really fuel violence here, the robberies being knocked down to petit larcenies is really a terrible idea. As every experienced prosecutor knows, any time you go in with a weapon to commit a robbery in a commercial establishment, it's a potential homicide waiting to happen. If there's any resistance, if there's anything that goes wrong during that robbery, you get a lot of killings during those robberies.

Now, if we're going to go from what is armed robbery is treated very seriously, and you're going to go away for a long time because of it, to, ah, it might just be a misdemeanor, then you're going to see a lot more of those, ah, it might just be a misdemeanor turn into, ah, it's a homicide, which you're only going to do 20 years for.

Now, in the disposition aspect of the Day One Memo, probably the most concerning things is that DA Bragg is saying he's only going to have carceral results, which is just a fancy way of saying sending people to prison in very limited circumstances. If there's a shooting, it's only if somebody gets hit. If there is drug dealing, it's only if somebody actually gets caught in the drug transaction itself. Otherwise, if you get caught with two pounds or two kilos of coke, you're not actually dealing them, you're only going to get charged with possession.

And then, guns. Guns is probably the biggest one that statistically we have seen is the biggest driver. It used to be in New York and in most parts of the country that if you were a felon and you got caught with a gun, you weren't just going to go to jail, you were going to state prison. You were going to go for a few years. And that fear of getting caught with a gun as a felon really cleaned up New York in a lot of ways and cleaned up a lot of areas. Plaxico Burress found out that you can't be on the streets of New York with a gun.

But if you are not going to send those folks to jail, if you're not going to send them to prison, then they're going to carry guns. And more felons wandering around with guns on the streets of New York is guaranteed to produce more homicides and more shootings.

Ralph: I think that's right. You mentioned the possibility that some of these commercial robberies might now escalate to more violent types of encounters. And it brings to mind a conversation that I was having with a friend the other day, and he was defending the memo and said something along the lines of, "Well, shoplifting really is just nonviolent crime." And I said, "Well, if you want to get a sense of how truly nonviolent the shoplifting offender is, just try and stop one in the act and see what happens."

And I think creating the dynamics where that might happen more is a legitimate sort of source of concern. And kind of brings to mind the reason that we're all talking about this memo, which is that we think it has significant implications for outcomes, which in turn will have implications for public safety.

And so, Jim, I want to go back to you and just see if you can just talk a little more about the mechanics of how some of these provisions might impact crime down the line, how they might impact investigations and other outcomes. In other words, how do you get from, say, the provision regarding robbery with a dangerous instrument to an actual change in public safety on the ground?

Jim Quinn: Well, let's just put it this way, if I want to rob a bodega, and I want to use a knife or I want to use a gun, where am I going to do it? Am I going to do it in Manhattan, or am I going to do it in Queens or Brooklyn or the Bronx? If I know that I can do a gunpoint robbery of a bodega in Manhattan and be charged with an A misdemeanor, I'm going to go to Manhattan.

The turnstile fare, I'll go into Manhattan, I'll do a robbery there, and the most I can get is a year in jail, if that. And what happens is once you start reducing these cases to misdemeanors, they fall into criminal court, which is so overburdened and overworked that those cases never ever go to trial.

When we were in Queens, we would have 30 to 40,000 criminal misdemeanor arrests a year. We did 50 jury trials and maybe 100 non-jury trials because there's just so much work down there and so little resources that you simply can't get to those cases. So now, if you're throwing all these armed robberies and any robbery into criminal court, you diminish those cases even more. So you're winding up with commercial armed robberies disappearing in criminal court and winding up with, most of the time, no jail time whatsoever and automatic diversion.

So, I mean, it's going to affect it in that way, but it's also going to affect what goes on out in the streets. I brought up those examples, a principal in the school or New York City Housing Authority or even somebody's own home. Some guy wants to put up a tent on your front yard, Manhattan DA's office is not going to prosecute that case. What do you do?

I'm a homeowner. What do I do if somebody's planting themselves outside? You lose control of the streets. You lose control of the subway system with the turnstile jumping. Neighborhoods get overrun by prostitution. What do you do? There's nobody that you can go to.

And it's a whole sense of the city losing control of the streets and losing control of a sense of order among people in the city. I lived through... I've lived in the city all my life, and I grew up in the city housing projects. And I used to sit tenant patrol in the lobby where we could prevent people from coming into the building who didn't live there, and that helped make everybody feel safer. They're not going to be able to do that anymore. The cops are not going to arrest them. He's not going to prosecute them.

Tom Hogan: And Jim is really right about the bad guys' sensitivity to the differences in punishment. I remember listening to a wire of a bad guy from the city in Philly, who we were trying to buy a couple of kilos of heroin off of. And we were out in Chester County. He was like, "I'm not coming out there. If I get caught out there, I'm going to jail for 8 to 10 years. If I get caught down here in the city in Philly, I'm getting probation. I'm not coming out there."

And he said, "All right, it's going to cost you double." So, of course, we paid double and he was right. He got 10 years. But he knew exactly what he walked into. They're very sensitive to those differences in the punishments they are facing. People think that criminals don't pay attention. They do.

Jim Quinn: They do.

Ralph: Yeah, no. I mean, I think both of you are making really important points, not just about deterrence, but also about community norms. I mean, when I was in law school taking my first year criminal law class, I remember the idea of a crime was described as a community's communication that a particular act was sanctionable, was not something that the community thought was aligned with its mores and it's sort of social norms.

And it's important to maintain that, if not for any other reason, that I imagine that cooperation might decrease if the public starts to lose confidence that the DA is going to do his or her level best to make sure that people against whom someone testifies are actually going to be off the street for a while.

I mean, I know, myself, I'm much less likely to cooperate with a criminal investigation if I am not certain that I won't have to see this person in the neighborhood anymore. And, Tom, just going back to you on this, I mean, as someone who's worked on building investigations from the ground up, I mean, how important is it, one, to have that kind of cooperation from the community, but how do you see this, if at all, affecting that?

Tom Hogan: So you need cooperation from the folks in the community. And if they believe that the criminal justice system is broken and will not punish fairly those who have broken the laws, they'll stop cooperating. If it really begins to break down, then they'll cooperate out of self-preservation, which is if these folks aren't going away, if they're not being prosecuted, if they're not being incarcerated, well, guess what? If you cooperate against them, then they say that snitches get stitches, and these folks will come back and retaliate against them. That's the brutal reality of it.

And community members know that. If they see these bad guys just going in and out of jail or not getting arrested, they're not going to cooperate against them because otherwise they're signing their own death warrant.

Ralph: There are a couple of other things I want to talk about before getting into some of the audience questions, which have been coming in since we started. But we talked about deterrent, we talked about sort of addressing the desires of the community and their need to feel secure in their neighborhoods.

There's also this argument about incapacitation, which has been a big focus of mine in the writing that I do on this topic. And it would seem to me that if we're going to take incarceration off the table, one of the risks associated with that is that you're going to lose out on the incapacitation benefits that society would otherwise enjoy.

We know that for the average state prisoner, for example, for every year that they're incarcerated, you're abating about eight to 10 felonies, it would would be I think a fair guess at that number. I mean, that's a meaningful impact on public safety.

And it would seem to me that the only way you can get to a point at which you willingly eschew those benefits is to truly believe that decarceration and some of the other motivations underlying something like this memo are public safety goods unto themselves. And you see that in this memo. You see some references to literature saying, for example, that recidivism rates go down for people who are spared incarceration compared to those who aren't.

Now, I think there's some problems with the characterization of that literature, which really kind of talks about the marginal offender and doesn't hold true for people who are considered high rate offenders or high risk offenders. And that describes, I think, a much larger portion of the people in the carceral system here in New York City and New York state.

But I went back and I looked at some of the numbers on dispositions, and it's a vanishingly small percentage of both felonies and misdemeanors, smaller than I thought, that result in a post-conviction incarceration. I wonder if you could just talk a little bit about some of the misconceptions and misunderstandings that are driving this approach, this idea about whether New York has a mass incarceration problem, the problem of racial disparities and how that drives some of this. And so, Jim, I'll go to you first.

Jim Quinn: Yeah, that is a great question, and it's something that has quite frankly driven me crazy listening to some of the arguments that these progressives make. New York City did not have a mass incarceration system, a problem, when all these bail reform laws were passed. New York City had the lowest incarceration rate of any major city in the United States in 2019. New York City was the safest major city in the United States of America in 2019.

The notion that people were being put in jail for minor crimes was ludicrous. And we used to run it, we used to have access to data in the DA's office. We had corrections data, probation data, parole data, court data, and we would run data on these issues.

And when we looked at the number of people in Queens County who were held solely on bail, just because they couldn't make bail on a misdemeanor, there were 47. And then, we went and we looked at the records of those individuals, and they had an average of 12 prior arrests, eight prior convictions, three prior failures to appear. And it was the same thing with all the "nonviolent" felonies.

For somebody to go to jail or be held on bail on a nonviolent felony, you had to have a similar record. And the whole notion that judges were throwing people in jail on their first arrest... I mean, I remember going down to the mayor's office when all this started, and we were told that they wanted to reduce the population on Rikers, and they were going to reduce it by getting the guy who was arrested for taking up two seats on the subway. And he gets arrested, and the judge sets $500 bail, and he spends six months awaiting trial.

So I went back and I said to my people, "Good. Anybody in jail on Rikers Island who's there because they took up two seats on the subway," and they're all laughed at me. I mean, it's like, we ran the statistic, and of course, there were none, but that becomes the narrative.

And because they've already invested themselves in reducing the population of Rikers, they have to do it somehow. So the narrative becomes, well, you have all these people charged with minor misdemeanors. You have all these people charged with nonviolent felonies. You have all these people charged with violations of parole or probation. Well, they're there because they have horrendous records.

And what happened with the new bail law that was passed in 2019, by 2020, the population on Rikers was reduced by almost 2,000 individuals. And the 2,000 individuals that comprised that batch were defendants who had 12 prior convictions and failures to appear. And when I talk about 12 convictions or 12 prior arrests, I'm talking about unsealed arrests.

The criminal justice system has an enormous capacity to process individuals and put them into programs where their cases get dismissed, and that is done daily. And it's only the real chronic offenders that wind up getting put in jail.

Tom Hogan: Yeah, for a second, let's talk about some hardcore stats, a myth and real life. The hardcore stats are Pew came out with a study at the end of last year saying that the incarceration rate in the United States as of 2019 was the same as it was in 1995. Which means that when the great crime decline started because we put all these things into place when we had all of this crime, we've now gone back to that incarceration level.

And if you think that has nothing to do with the increase in crime right now, then I've got some ocean front property in Arizona to sell you. So we have decarcerated on a massive and undiscriminating level, which is a bad idea.

The myth is this, I once sat in on a meeting with a United States Senator and some students. And I said, "How many of you think there's a sitting in federal prison right now, there's somebody who is there just because they got caught with a little bit, one roach of marijuana?" And they all raised their hands, including the United States Senator.

And I said, "You know what? That's a myth. You find that guy, and I will go get him out of prison right now because he's not there." And they were shocked, but that's the myth that's been put out there.

Now, real life. What prosecutors have gotten very good at in the last 20 years is targeting that 5% of truly violent criminals who cause 50% of the violent crime. We have figured out what are the data underlying who those people are, and we've gotten very good at targeting them and putting them away for a long period of time.

Now, at the same time, we've gotten very good at diverting low level offenders who don't need to be there. And, as Jim said, we don't put those people in jail. There's nobody sitting there like that. We are getting them help. We're putting them under supervision. They may be getting misdemeanor records, but they're having the opportunity to have those expunged after a while. That's necessary. Those are addicts. Those are people with mental health issues.

Now, let me tell you, the police would be perfectly happy if there was a huge mental health system in place, and they didn't have to deal with it. But as of right now, they are the front line to deal with that mental health issue, and prisons and the criminal justice system have become a default for the mental health system because it doesn't exist anymore.

But let there be no doubt about it, in the last 20 years, prosecutors have become very good at making sure the right people, the violent people, a small percentage, were the ones that were spending the majority of time in prison.

Ralph: Yeah. That's a really good point. And one of the things that I worry about with respect to a memo like Bragg's Day One Memo, which is so broad and so non-discriminating, is that it seems to confuse the relevance of an offense with an offender in determining what the risk is. And it seems like this memo is driven by the idea that the offense with which someone is charged is really all you need to know to determine whether or not you're releasing somebody who might be in that 5% versus somebody who's going to be a low level offender.

And it would seem to me like a better way to go about it would be to do a more kind of holistic assessment of that person's criminal history of their involvement in the criminal justice system, whether they're in a gang database, for example.

But this memo doesn't seem to leave any room for that. I mean, would it be fair to say that one really easy tweak would be to just kind of reorient these same goals around an actual assessment of offenders, as opposed to just looking at the top line offense?

Jim Quinn: Look, I think that that would be a more realistic way to look at things, and I think that that's what most DAs do. There are armed robberies and there are armed robberies. And some of them are kids who just have problems. Some of them are junkies who are strung out. And some of them are people who are serious, they live by doing armed robberies. They're gangs. They're whatever.

And no prosecutor treats them equally. No prosecutor treats a specific crime equally. You have to look at the offender. You have to look at the background. You have to look at the circumstances. And that's what we do every day, but it doesn't... I think the memo was written not so much for his ADAs, and that just saying, "We're going to continue doing things as they are now," is not going to satisfy the progressive community.

So you have to, if you start with the assumption that the entire criminal justice system is racist and [inaudible 00:31:11] and doesn't consider people's circumstances, well then, you have to come out with a memo like this because you just ignore everything that gets done.

I mean, when I was in the DA's office, we had 27 different programs that we put people into. We had different courts that we sent different cases to. We had veterans court, we had a misdemeanor treatment court, a felony treatment court for drugs. We had a mental health court. We had a court system for prostitutes.

All of these things were geared toward individual issues that these people had, and the cases were treated differently. Not just because of the crime itself, but because of the circumstances of the individual charged with committing.

Ralph: Right. Yeah, and you mentioned that this might have been more kind of a political statement than necessarily a guidance for line prosecutors. And we also talked about Mr. Bragg's interview with the head of the Citizens Crime Commission where he seemed to kind of be putting some distance between himself and some of these provisions in the memo.

And I think that it's a good thing if DA Bragg is responding to feedback and responding to community concerns. I think that's a good thing. And I think there may be one other example of that in Brooklyn where we have another progressive DA, Eric Gonzalez, who with his Justice 2020 Initiative came out with a very similar sort of set of policies that would guide his office's approach to prosecution.

And in 2020, Brooklyn precincts really drove a huge part of the gun violence spike in New York City. But in 2021, one of the things that I've noticed is that the Brooklyn DA's office has really taken the lead on sweeping gang prosecutions, where they're seeking, at least seem to be seeking, very serious prison time.

And it strikes me as not necessarily reversal, but a move in the right direction, a reprioritization. And so, I wonder whether that's something we can expect to see Bragg do in the shorter term. And also, I want to ask both of you just to what degree can we count on institutional stakeholders in the office, bureau chiefs and ADAs who are veterans, being able to kind of moderate Bragg on some of this stuff?

Tom Hogan: So District Attorney Bragg in coming out and now being in retreat mode, he's running into two brick walls. One is the reality of violent crime, which is it's hard to come out with this memo when violent crime all of a sudden is coming up and flaring up all across New York.

The other brick wall he is running into is New York, which is, there are lot of institutional stakeholders in New York. There's a lot of media coverage about what he's doing. When Marilyn Mosby started doing all of this in Baltimore, people sort of shrugged because it was Baltimore. When you're doing it in New York, under the bright lights and the glare of the media, and particularly in Manhattan, then it's going to be exposed.

Now, District Attorney Bragg, I think, as a prosecutor is looking at this and saying, "The reality is violent crime is not responding very well to these progressive policies. I better triangulate." And District Attorney Bragg as a politician is looking at it and saying, "This is not working very well. I better triangulate." So if both your prosecutorial instincts and your political instincts are that, "I better change this pattern," then you should change your pattern.

Now, I would note that across the nation, that has not been the pattern. Eric Gonzalez is breaking with the rest of the progressive prosecutors when he is deciding to do gang take-downs and responding to violent crime. George Gascon, Chesa Boudin, Larry Krasner, Kim Foxx, Kim Gardner, all of them have doubled down on their policy memos and said, "I'm going to keep doing exactly what I was doing," even as the homicide rates are going through the roof.

Ralph: Yeah, that actually gets at an interesting question, one of the brought by an audience member, which is the idea that these elected DAs have a broad mandate from the electorate. And I'm not sure that that's quite right in so far as they may believe that, and they may think that they are being responsive to the concerns of the people who voted them in.

But one of the things I've noticed is that when you go into the data on who actually voted, a lot of these electoral contests are being decided with very, very low rates of voter turnout, oftentimes, at least here in New York, in off cycle elections that just don't get a lot of attention.

To what degree has the progressive prosecutor movement, not just here in New York but elsewhere, kind of benefited from a lag on the part of the electorate to really just understand how consequential these once really low visibility races are? And, Jim, I'll start with you there.

Jim Quinn: Yeah, sorry. I think one of the problems is New York City is a one party town, and most of the big cities are one party towns, so that the elections get decided in primaries rather than in general elections. Bragg had I think 86% of the vote in the general election, and I don't think people really knew what they were voting for in the general election.

The primary, there were seven candidates who were all competing against one another. And in the primary, it's a small vocal group that can control the winner in a primary. And when you get funding from an outside source that can give you a million dollars to start a campaign for DA in the Democratic primary in Manhattan, that's a big leg up.

And that's what's happened in a lot of places. In Queens alone, I mean, we had a primary where the current DA won by 51 votes over a radical, progressive Democratic candidate, Democratic socialist candidate. And it was because money went in there and they were able to activate a base group in the Democratic party.

Now, do I think that that gives them a mandate? No, but it's the way this system is set up. And a friend of mine said that it's got to get worse before it gets better. And people have to understand ultimately that these policies and programs don't make you safer, that they don't solve people's personal problems and substance abuse problems. And they're going to have to realize that and vote these people out. [inaudible 00:38:10] people going to have to act more reasonably.

Tom Hogan: And as somebody who relied on voters to get voted into office twice, and who won in a fairly split county by good margins, I try never to underestimate the voters. They try to do what they think is rational.

We had 20 years of declining crime. They didn't necessarily understand all the things we did to make crime decline, but if crime is going to decline no matter what, you know what? You would vote for a progressive because it's expensive to lock people up, it's expensive to arrest people, it's expensive to have big police departments. And if crime's going to keep going down no matter what, sure, elect somebody who's not going to do those things. It'll save us money, and we'll still be safe.

Turns out that that's not true. Turns out that the voters who were doing what they believed was rational are now finding out that, no, that is going to affect my safety. And now, it's going to affect my pocketbook as these cities get emptied out and turned into shells. So people will start to turn around, and they will start to turn out. We have to put a little more trust into our voters and our citizens to do the right thing. They'll get there.

But, as Jim said, it's got to get worse before it gets better. And that message has to come home to people that, yes, there was a reason that some of these folks had to be locked up and crime won't always go down. Tech stocks won't always go up, and crime won't always go down. So don't put all your money into crypto, people, and don't put all your money into radical prosecutors.

Ralph: Now you're talking. I think that's a really good way to put it. I want to keep going with some of the audience questions because we do have a lot. So one of our audience members asked, who actually mentions the Citizens Crime Commission interview, which seemed to have gotten a lot of attention, which in and of itself, I think indicates just how concerned voters are now that they've seen this memo and sort of now understand how the office is going to be approached perhaps better than they did when they pulled the lever for Bragg.

But he mentions that Bragg said on that Citizens Crime Commission event that he was going to pursue traditional sanctions, meaning prison, for anyone caught carrying illegal guns. And the question is is how will we know whether or not this gets implemented? Which really gets at a broader issue about data transparency from prosecutors' offices.

And it seems to me like to the extent that progressive DAs around the country, not just Bragg, but people like Mosby and Foxx, et cetera, to the extent that they're confident that their approaches are actually making things better, we would expect, I think, more transparency and publication of the data that we would need to evaluate those policies.

And, Tom, this is something that I know you really do a lot of work with. And I wonder if you could just talk a little bit about whether we should be satisfied with what prosecutors' offices are releasing in the way of data, what kind of data we would want to have a look at to get a real sense of whether or not things are going well?

Tom Hogan: So, yeah, I mean, I really focused in on District Attorney Bragg's remarks regarding guns as well. Because what he specifically said was that those carrying guns will be incarcerated, he didn't say they were going to prison. He just said they will be incarcerated. So we don't know for how long, whether or not he meant he's going to send them upstate or not, and it directly contradicts what is in the Day One Memo. And he did not say he was going to rewrite the Day One Memo, so we need to be very specific on that.

On the data issue, it's a great question because I've been looking at data on the 100 largest district attorneys offices across the United States. It is a nightmare to get data out of them. Sometimes it's because they don't keep it. Some of them are actively hiding it.

What you want to see is you want to see how many arrests came in from the police, how many cases got declined by the DA's office right at the charging unit, how many the DA's office got through a preliminary hearing, or an indictment in the case of New York, how many they actually got through conviction at that point, and how many they defended all the way through appeal.

That will tell you how effective your district attorney's office is and what they are declining to prosecute, what we actually call at this point deprosecution, which is a district attorney's decision that even though a crime has been committed and we have the evidence for it, I, the district attorney, am not going to charge it, which is an enormously powerful weapon in the arsenal of the district attorney. But if you check at each one of those points along the way, you'll find out exactly what these district attorneys are up to.

Ralph: And, Jim, I want to talk to you about this as well, because I know when you were still at the Queens DA office, that office seemed to keep pretty good numbers and to keep track of really relevant outcomes.

Some of the outcomes that come to mind for me are things like how often does somebody who was diverted, how often do they get re-arrested? How often does somebody who a prosecutor chose not to pursue pre-trial detention for, how often do they re-offend during the pre-trial period? How often does someone who was given probation go on to commit a violent felony post-disposition?

Is that something we can expect from DA Bragg's office, do you think? And how common is it for prosecutors in New York City and the five boroughs to make that readily available to the public and people like me who selfishly want it?

Jim Quinn: In Queens, we had that data. We used to get a feed from probation and parole and corrections and the court system on the status of every case where the defendant was on probation. Corrections, we would get what they were in for, whether or not they had any serious offenses while they were in jail. And that data was all available.

I don't know if the other DA's offices get all that information, so I don't know how much of it is going to be coming from DA Bragg. The problem with the information is it's in how you interpret it. And I looked at DA Bragg's memo, and one of the reasons he's talking about reducing pretrial detention is he quotes a statistic stating that less than 1% of the individuals who have a pending case get arrested for a violent felony each month.

And that sounds, people are going to read that, and say, "Oh, it's only 1% of people arrested, who are arrested or pending case, get arrested every month." Well, I looked at that a little bit more, and first of all, it's 1% every month. So in the course of a year, it's 12% of them get rearrested.

Secondly, it was for a violent felony, which leaves out all the nonviolent felonies and the misdemeanors. And if only 1% of the people who have a pending case in New York City courts get arrested every month for a violent felony, it comes out to 3,000 violent felonies a year and 3,500 nonviolent felonies a year and 12,000 misdemeanors a year committed by people who have pending cases in New York City.

And it's not everybody. There are people who get arrested for misdemeanors who have a pending case, and they'll never get arrested again. And then, there are people who get arrested for drug sales who will get arrested again. There are people who get arrested for robberies who never get arrested again.

The goal is to identify, as much as you can, the people who are recidivists, and to make sure that those are the ones who go to jail. And the people who have mental health issues or substance abuse issues, to divert them into programs that deal with those issues. But the city has never really done that.

As far as once this bail reform took place, those 2000 people that were released, many of them had mental health issues, substance abuse issues that they were getting on Rikers. Might not have been the best, but it was something. They were being given their medication. They were given counseling. They were all released with none of that and no follow up. And that's part of the problem and why crime started going up in New York City.

Ralph: Right, yeah, we've mentioned bail reform a couple of times, but I also think it's important for people tuning in to understand that there were many other reforms that have happened in recent years, including reforms to the discovery practices, the information sharing between prosecutors and defense attorneys. There were reforms to youth prosecution with the Raise the Age law, recent reforms with respect to parole and probation violations with Less is More. Things are moving pretty fast.

And I think it would be a lot more... It would feed a more heightened sense of security on the part of the public, I think, if there was more transparency with the data that would be needed to evaluate, I think, the effect of these policies. And that's something I think we want to see more of because even when the data does come out from certain sources, limited though it may be, it also doesn't seem to get a ton of attention.

For example, I saw just a highlight of the brief that just came in over the transom before this event started showing that there was an increase in the rate of re-offense for people who qualified for disparate treatment due to Raise the Age. It would seem to me that that's relevant evidence that the public needs to know, but it's not something that's trending on Twitter. And so, I think both of you make really good points about what kind of data we need to really evaluate the success or failure of some of these endeavors.

I want to talk a little bit about Eric Adams. Because it is interesting that in the same election cycle, you get someone like Alvin Bragg elected who is really saying one thing about how to approach crime and justice in New York City, and then the mayor, Eric Adams, gets elected in that same election saying something very completely different.

And if you just sort of listen to the things that he said, including his recent speech announcing his plan to fight violent crime, one of the things you start to notice, you can't help but notice, is that there's tension between the approach that he seems to want to follow and the approach that someone like Alvin Bragg is taking and that the state legislature has taken.

And the question is, and I'll pose this one to you, Tom, I mean, how important is it that the mayor and the DA are on the same page? And if they're not, I mean, ultimately can we really expect change?

Tom Hogan: So absolutely not. I've looked at this across cities across the United States. You need three people on the same page to actually fight violent crime. One's the mayor, one's the chief of police, and one's the district attorney. And if all three of those are working together...

And San Diego's a good example, they do a nice job, even though a mixture of Republicans and Democrats are controlling violent crime because their mayor, their DA, and their chief of police are on the same page. But if any one of those three is going to buck the other two, then you are going to have chaos and mayhem.

Now, in this case, you've got Eric Adams and his new superintendent are very much on the same page regarding controlling crime. You've got increased political pressure coming in because the governor is now coming in and calling out District Attorney Bragg. So there will be political pressures.

In addition, on the election, it's interesting, Eric Adams got the black vote and the brown vote, but not the Upper East Side vote, and Alvin Bragg got the Upper East Side vote. So the people who are being most affected by violence in the city, they're voting rationally. This goes back to trust those voters. They're going to come out.

The Upper East Side's not going to be hit by this violence very much. It's going to be Harlem. And those voters are starting to turn out and realize what's happening. So, no, you need to have the mayor, the district attorney, and the chief of police on the same page, otherwise you will have chaos and mayhem.

Ralph: Yeah. I want to get back into some of these audience questions which have been pouring in. Unfortunately, I won't be able to get to every one. But there's one question here from Patricia who asked that, well, she says she's heard that there's no legal mechanism such as recall that's available to voters to sanction Bragg.

Is that true, or is there something that New Yorkers can do, I suppose, beyond the kind of political pressure that you just described, Tom, that can maybe effect some change and reorient Bragg's office? And Jim, since you're a veteran New York prosecutor, I guess this question is best suited for you.

Jim Quinn: I believe that the executive law allows the governor to remove the district attorney. I don't realistically see that happening certainly before the gubernatorial election. And, I mean, I just don't see that happening. And I think that Bragg is going to moderate some of these things, at least linguistically. I think you'll hear a lot of talk about how he's going to go after violent crime and armed robbers and police shooters and things like that, and it will take some of the heat off of him.

And it all depends on whether or not the media follows up on what's happening in the Manhattan DA's office. And like you say, it all depends on the statistics that come out of there, and the stories that the police officers basically tell their union reps when their charges are reduced to misdemeanors.

Tom Hogan: And one good way to check on how the office is doing is to watch the number of ADAs that stay and leave. If you look across the country, when you get a prosecutor who handcuffs ADAs, takes away their discretion, and tells them to let bad people out when they know it's not the right thing to do, you will see ADAs walking out of that office.

In St. Louis, they've had over 100% turnover in the office. Even in Philadelphia, the ADAs that were hired by District Attorney Krasner, who came in as progressive ADA, said, "We're letting out people that are hurting this community. We can't stay." And there'd been a massive amount of turnover. So it's a very nice proxy for is this person doing the right thing?

Ralph: So another one of our audience members has a question about bail reform and the approach to pretrial detention that Bragg seems to want to take. And expresses some concern that maybe a driver of this approach is a sincere belief that historically black and brown defendants have been mistreated in this process and asked essentially whether it's necessary to continue to pursue decarceration at the pretrial detention stage in order to alleviate that real problem.

I mean, to what degree has that problem been overstated, to what degree are there mechanisms by which we can make it a more kind of objective inquiry? And, Tom, I'll start with you there.

Tom Hogan: Well, every time we try to make it a more objective inquiry, Ralph, we end up locking up more people. As soon as we turn it into an algorithm, then the risk factors automatically turn up that we should be locking up more people, not less, and that's taking race totally out of it. So that's a very dangerous approach for those who think that it will end up with less people locked up.

The other thing that we need to think about is the role that poverty plays. I mean, 100 years ago, it wasn't poor blacks and poor Hispanics being locked up. It was the poor Irish and the poor Italians who were being locked up because they were... There's a reason they call it the patty wagon. They were the ones who were causing the most trouble. Did it come out of their poverty? Yes. Some of it came out of their poverty. You're more likely to engage in crime if you are poor. Your circumstances are tougher. So the idea is to get everybody up and out of that.

But taking discretion away from the judges is not necessarily a good idea. And turning it into an algorithmic approach will lock up more people. And you've got to take account the dangerousness, the fact that New York is not taking into account dangerousness is ridiculous. Only taking account whether or not they're probably going to show up is something that is an approach that is very unique in the United States. In the federal system and the state systems all across the United States, the two things that really matter are dangerousness and likelihood of showing up.

Ralph: And if I'm not mistaken, in the federal system, there are several instances in which the system imposes a rebuttable presumption of detention that the defense has to actually overturn during a preliminary hearing. Do I have that right, Tom?

Tom Hogan: That absolutely is right. And people keep saying, "Let's face this on the federal system," because the federal system does create a presumption that bail will be set in an achievable amount. But there is also all these considerations and a presumption for certain crimes that you're going in. And what people don't realize is that in the federal system about 80% of the people who are charged with a crime get locked up pretrial.

Now, could you imagine, Jim, if we locked up 80% of the people charged with a crime at the local level? You want to talk about mass incarceration. So this has actually been a problem. All these federal programs and federal ideas are designed for brain surgery and upper level crimes. They are not designed for the massive level of medium to low level crimes that we face a lot when we're a local district attorney.

So they just, they don't apply. We're battlefield surgeons. Federal prosecutors are brain surgeons who handle five to 10 cases a year. We handle hundreds and hundreds of cases a year. And having been on both sides of that, there's a big difference.

Ralph: So I want to ask you each one last question. Jim, I'll go to you first. And really the question is what's the outlook? How positive should New Yorkers feel right now? What do we expect moving forward? I hate asking people to sort of look into their crystal balls, but do you have confidence that New York is resilient enough to withstand a commitment to the provisions of the Bragg memo, assuming that they're followed through on? Or do you think there needs to be a departure from what's in there for New York to come out of this safely?

Jim Quinn: Oh my.

Ralph: Small question. Small question.

Jim Quinn: Look, I mean, I was born in the city. My parents have lived here, for four generations they've lived in New York, and we've been through an awful lot, through the '70s, the '80s, the '90s. And I don't think crime is ever going to go back to where it was in the '90s when New York city had 2,000 murders. Last year, we had 500. I think it's going to continue to go up slowly if these policies continue and become more widespread.

I think that I keep coming back to bail reform, but that is an enormous factor in the rise in crime, and I don't think people want to face up to that. There are too many people entrenched with the notion that there are too many people in jail, and they keep repeating that and will never go back on bail reform because it has to pass both houses of the state legislature.

I think that the Bragg memo, I think that's going to be changed. I think the policies are going to be more fine tuned. I don't think he's ever going to be a hard-nosed prosecutor. I think he'll be along the edges of a very liberal, progressive prosecutor. But I think some of the things that they're doing are simply going to have to be changed, just out of necessity when they actually start seeing it happening in practice.

I mean, I don't think he was ever a state prosecutor, a district attorney prosecutor handling a caseload of 300 cases. And, hopefully, he'll grow into the job and learn in the job.

Ralph: Well, I assume that ding means that we are out of time. I wish we could continue this conversation, but I just want to say thank you so much to both of you for an insightful and timely talk about this. Before we close, I want to invite our public audience to sign up on our website to receive updates from the Policing and Public Safety Initiative, including information on our upcoming events.

On our website, you can also browse the Manhattan Institute's research and subscribe to our newsletters. If you're able, also please consider supporting the Institute at the link that you see below. MI is, after all, a nonprofit organization and our work depends on support from people like you.

Thank you all again so much for coming. Thank you all at home for watching. And I'm sure this is a conversation we're going to continue.

Jim Quinn: Thank you.

Photo: marchmeena29/iStock

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