During Ken Thompson’s short tenure, the Brooklyn D.A.’s office entered the national conversation on criminal justice reform. And the race to succeed Thompson is now taking place amid the discussion of how to close Rikers, an effort in which prosecutors will play a pivotal role.
The Lippman Commission report provides a clear blueprint for downsizing the city’s jail population. In addition to ending the use of cash bail, the report advocates “the strong presumption of release for all misdemeanors and nonviolent felonies,” which would reduce the city’s jail population by over 40 percent.
Acting Brooklyn D.A. Eric Gonzalez, who endorsed the commission’s call to close Rikers, doesn’t support an across-the-board end to the use of bail for all misdemeanors and nonviolent felonies. While he considers himself to be a progressive reformer, at a recent candidate forum in Brooklyn Heights Gonzalez positioned himself as more moderate than most of his rivals. Four D.A. contenders—Ama Dwimoh, Marc Fliedner, Patricia Gatling and Anne Swern—have been staking out ground to the left of Gonzalez, while Vincent Gentile is also advancing a moderate view.
Activists working closely on bail reform, meanwhile, are watching to see which candidate will take the position most in sync with the effort to close Rikers. Regarding the use of bail, “We want to see a clear written policy from all the current D.A.’s as well as the candidates,” says Alyssa Aguilera, co-executive director of Vocal-NY. Vocal opposes the use of bail for misdemeanors.
According to Gonzalez’s spokesman, Oren Yaniv, the D.A.’s office does have an internal policy regarding bail but it’s “not a public document.” The policy, Yaniv says, is “presumptive release and to not ask for bail in misdemeanor cases.” Presumptive release does allow for prosecutorial discretion, and Yaniv lists “character, criminal history, and the type of offense” as criteria for the use of bail.
Thus, while bail has been meted out less frequently in Brooklyn—used for 16 percent of the borough’s misdemeanors in 2016, below the 18 percent citywide total—Gonzalez is preserving the office’s prerogative to continue using it for low-level offenses. The office will not rule out the use of cash bail, Yaniv says, because “the only alternative to release is remand,” meaning that “certain defendants who judges are not comfortable releasing” will be sent to jail.
But giving so much discretion to prosecutors does not necessarily result in decisions that are right-size to specific defendants, some argue.”Expanding discretion does not necessarily help make individualized decisions,” says Swern, who oversaw the alternative-sentencing programs like the Red Hook Community Justice Center, created under Thompson’s predecessor, Charles Hynes. She sees cash bail as “criminalizing poverty” and argues against its use for all misdemeanors—and “for nonviolent felonies where we are assured of the defendant’s return.”
Fliedner, who prosecuted Brooklyn cases of police misconduct including those of Peter Liang and Joel Edouard, is calling for a “no jail, no bail” policy, meaning that unless the DA’s office will seek jail time, it won’t impose bail. Fliedner disputes Yaniv’s contention that the office currently practices that policy, stating that “any trip to Brooklyn criminal court will show you that ‘no jail, no bail’ is not the real-world practice.” Along with Swern, Gatling, and Dwimoh, Fliedner opposes cash bail, calling instead for enhanced supervised release programs.
Former head of the city’s Human Rights Commission Gatling views ankle monitors as a viable alternative to cash bail, citing their successful use in a pilot program in Washington, DC. Decisions regarding whether to use them would be on “case-by-case basis,” Gatling says—thus leaving open the possibility of assigning them in misdemeanors. Other candidates are quick to raise the questions of who would pay for the monitors and whether they are viable on a large scale. Gatling, however, says the money can be recouped from the savings of not sending people to Rikers, which now amounts to just over $130,000 per year on per-capita basis.
Dwimoh, best-known for her work in the D.A.’s office in defense of children, argues against the use of bail in all misdemeanor cases, and would staff the Early Case Assessment Bureau with experienced assistant district attorneys who would determine when bail is needed for non-violent felonies. Along with Swern and Fliedner, she advocates the expansion of the D.A.’s program of supervised release. “Successful pre-trial supervision combines supervision with services—and the D.A.’s current program should be much more robust,” notes Dwimoh’s campaign spokesman Evan Thies.
On the right of Gonzalez, and thus the other four main candidates, is Gentile, the outgoing councilman from Bay Ridge. Gentile highlights his credentials as a lawmaker, and says he’ll push changes in Albany that will require judges to be provided with the financial background of defendants before determining bail, and that will allow judges to use threat of violence as a criterion (rather than just flight risk) in deciding whether to set bail and at what amount. According to Gentile, “if there’s no jail sentence, the priority should be no bail”—but his main positions rely more on judicial discretion rather than prosecutorial policy.
The horse-race aspect of the D.A.’s race will become clearer in mid-July, when ballot petitioning wraps up and there’s an updated campaign donation filing. Given his war chest and raft of endorsements, Gonzalez does seem to be the front-runner at his point, but there are several lengths to go. And as they continue to jockey for position, the various candidates are acquainting voters with a solid range of policy initiatives, many of which can help expedite the closure of Rikers.
One more note while we’re at the track. We didn’t include the longest shot on the board, perennial candidate John Gangemi. He’s not known for his policy positions—but as he told the recent forum in Brooklyn Heights, he once helped conduct an investigation of race-fixing at Aqueduct.