New Manhattan District Attorney Alvin Bragg Jr. sparking a firestorm after telling prosecutors to stop seeking prison sentences for criminal offenses while reducing felony offenses for robberies and drug dealing.
Here’s a portion of DA Bragg’s memo to staff:
1. The Office will not prosecute the following charges, unless as part of an accusatory
instrument containing at least one felony count:
a) Marijuana misdemeanors, PL §§ 222.30 and 222.50.
b) The act of refusing to pay the fare for public transportation under Theft of Services, PL
c) Trespass, PL §§ 140.05, 140.10, 140.15, unless the trespass is a family offense pursuant to CPL § 530.11, accompanies any charge of Stalking in the Fourth Degree under PL§ 120.45, or is approved by an ECAB supervisor.
d) Aggravated Unlicensed Operation, VTL § 511.1. Note that any vehicular collision resulting in any physical injury should be pursued as an act of reckless driving, reckless endangerment, negligent or reckless assault, failure to yield, or any other applicable statute. This policy addresses only criminalization of a failure to pay fines and does not address the criminalization of dangerous driving. Also, this charge may be prosecuted as part of any accusatory instrument containing a charge of Vehicle and Traffic Law 1212, 1192, or 511.2.
e) Any violation, traffic infraction, or other non-criminal offense not accompanied by a misdemeanor or felony.
f) Resisting Arrest, PL § 205.30, except for the act of resisting arrest for any crime not included on this declination list.
g) Obstructing Governmental Administration in the Second Degree, PL § 195.05, other than for the act of significantly physically interfering with the lawful arrest of another person. Significant physical interference includes, at a minimum, the acts of shoving, tackling, pushing, punching, and other similar acts. Otherwise, this charge must be approved by an ECAB supervisor.
h) Prostitution, PL § 230.00. ECAB supervisory approval required to prosecute Patronizing a Person for Prostitution under PL § 230.04. This does not include any felonies, or coercive practices regularly performed by those who traffic in the sex trade or related crimes such as money laundering.
i) Outdated offenses such as Obscenity, PL Article 235, and Adultery, PL § 255.17.
2. Misdemeanor charges for which a desk appearance ticket is required by law shall be offered diversion. Diversion is defined as the opportunity to complete a short but meaningful programming mandate after arrest through a community-based provider, based on the needs of the person arrested. Upon completion of the mandate, the Office will decline to prosecute the case.
a) Consistent with past policies, those arrested and offered diversion will be permitted to consult with an attorney regarding their options.
b) If the person accepts the diversion, the Office will work to ensure they do not need to appear in court, including if their diversion mandate is not complete before their scheduled appearance.
3. Cases for which a desk appearance ticket is issued but not required by law to be issued will be offered the diversion option defined herein, unless: a) the allegations include any sex offenses, assault, menacing, any allegation of harm or the threat of harm to another person, or offenses requiring an order of protection during the pendency of the case; or
b) based on a holistic analysis of the case, diversion would be inconsistent with public
4. The Office will continue to screen desk appearance ticket cases to ensure that diversion is not presumptively offered in rare but important instances of great public concern where such tickets are required by law, such as cases involving white collar theft, the death of another person by an act of driving, and other cases for which non-carceral sentences would not be presumed as per the policies on carceral dispositions described infra.
5. ADAs should use their judgment and experience to evaluate the person arrested, and identify people: who suffer from mental illness; who are unhoused; who commit crimes of poverty; or who suffer from substance use disorders. Immediately identify such cases to an ECAB supervisor. Charges should be brought consistent with the goal of providing services to such individuals, and leverage during plea negotiations should not be a factor in this decision.
6. The following offenses shall be charged as follows:
a) An act that could be charged under PL §§ 160.15 (2, 3, or 4), 160.10(2b), or 160.05 that occurs in a commercial setting should be charged under PL § 155.25 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.
b) The possession of a non-firearm weapon under Penal Law § 265.02(1) shall not be charged unless as a lesser included offense, and § 265.01 shall be charged instead.
c) Residential burglaries: An act involving theft of property from a storage area or other portion of a dwelling that is not accessible to a living area that could be charged under PL § 140.25(2) should be charged only under PL §140.20 and not under PL §140.30 or PL §140.25(2).
d) Commercial burglaries: An act involving theft of property from a commercial establishment that could be charged under PL § 140.25(2) because such establishment is technically part of a larger structure that contains dwellings shall only be charged under § 140.20.
e) Drug cases: If there is a reasonable view of the evidence indicating that a person arrested for the sale of a controlled substance is acting as a low-level agent of a seller, such person shall be charged with 220.03 and no felonies and therefore offered diversion. Also, unless such charge is a lesser included offense or unless the defendant actually sold a controlled substance, the offense of Penal Law § 220.06 shall not be charged and 220.03 shall instead be charged.
7. Prosecution may be deferred if the discovery available at the time of arraignment is so sparse, or so potentially voluminous, that the ADA believes it poses a significant risk that the Office will not meet its discovery requirements in arraigning the case immediately, provided that doing so poses no public safety risk. Delaying a case while we gather all the evidence and make sure it is appropriate to file an accusatory instrument will ensure
that we are in full compliance with the letter and spirit of discovery requirements.
To see the full memo click here