Why Anyone Who Cares About Criminal Justice Reform Should Keep an Eye on Brooklyn

By Jack Mirkinson | April 19, 2019 | 3:36pm

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At the end of a mid-March press conference announcing Justice 2020, his new initiative to remake the role of the district attorney’s office, Eric Gonzalez, the Brooklyn district attorney, got a question straight out of the era that gave us the East New York-set exploitation classic/nadir Death Wish 4.

“I guess for some people who are cynical, this is kind of a touchy-feely progressive program that is soft on crime. How do you respond to that?” a reporter asked.

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Gonzalez told the reporter that he had been a part of the DA’s office for over 20 years and was not afraid to prosecute people. But he also used the question as an opportunity to reassess his own career, saying that a majority of the people he had imprisoned did not need to be there.

“The criminal justice system should be about accountability, and making sure that people are put on a path to succeed and not hurt other people,” Gonzalez said. “If we’re simply delaying it by putting them in jail for six months, a year, or two years and we send them home to be more dangerous, then we failed the people we serve.”

While Gonzalez’s platform in his first run for district attorney in 2017 was hardly as an avenging angel against crime, the answer was a striking capper to a press conference that acted as a 45-minute refutation of the role the state has traditionally been thought to have in the criminal justice system for decades. And in Justice 2020, Gonzalez is casting his office as a national model for people to rethink the way prosecutors work across the country. Many will be watching to see if he delivers.

Gonzalez’s proposal comes at the same time as district attorneys around the country and the city are embracing progressive reforms of their own offices. In Manhattan, District Attorney Cyrus Vance got good press for joining with Gonzalez to announce that his office would end the practice of requesting cash bail for most misdemeanors, and he also promised to stop prosecuting low-level cases as well (although Vance has been criticized for not following through on those promises). In Queens, public defender Tiffany Caban is nominally the most left-wing candidate in the first competitive DA’s race in the county in a generation, but almost the entire field is also running on decarceration and reform to one degree or another.

Brooklyn’s reputation as a bastion of progressive prosecution took a bit of a hit when reformer-turned-establishment figure Charles Hynes lost his election bid in 2013 under a cloud of scandal. Hynes’ replacement, Ken Thompson, was on his way to re-establishing trust in the office when he died in office in 2016 due to cancer. Gonzalez, who was Thompson’s deputy, became the acting attorney general. In 2017, five other candidates stepped forward to challenge Gonzalez in a primary. The race saw him pegged as the moderate in the sprint to the left despite his own promises of continuing Thompson’s legacy. With the blessing of Thompson’s family and the advantage of incumbency, Gonzalez won handily, and shortly after his first elected term began, he announced work on Justice 2020 would begin.

Even before Justice 2020 was announced, Gonzalez was continuing and expanding the work that Thompson was doing. Marijuana possession prosecution is down 98 percent in Brooklyn from 2019 so far compared to 2018, and Gonzalez pushed things even further than Thompson by declining to prosecute most cases of smoking in public as well. The number of defendants sent to Rikers Island fell by over 43 percent in 2018. Gonzalez expunged over 100,000 warrants through the Begin Again program, a Thompson initiative that he continued after taking over the office. The district attorney also hired attorneys to train his deputies on how to prosecute cases involving low-level charges and undocumented immigrants, so that defendants aren’t in added danger of getting deported.

In Justice 2020, Gonzalez is proposing to rework the role a district attorney’s office has in the criminal justice system, changing it from an office that relies on punishment and imprisonment as a first choice to one that sees prison as a last resort. To do that, the district attorney wants to change the way Kings County will do everything from the discovery process to the choice of charges prosecutors bring, from bail requests to sentence recommendations.

To that end, Justice 2020 was born out of a collaboration on a committee with over 60 members representing intersecting areas of the criminal justice system. Police and prosecutors were involved, but so were defense attorneys, academics, community clergy and community organizations and even defense attorneys and activist organizations who aren’t shy about criticizing the state.

There are steps in Justice 2020 that will sound familiar to the current thinking among law enforcement reformers, like sealing and expunging old marijuana possession convictions. But there are also more ambitious proposals, such as asking assistant district attorneys to consider non-jail options at every step of a case, to the point where incarceration becomes the exception, not the default.

“Jail needs to be reserved for the cases where we as a society say, ‘We can’t be safe unless this person is incarcerated,’” Gonzalez told Splinter in an interview in late March about the initiative. “The overwhelming majority of the work that we do in this office, the outcomes should not be [the] knee-jerk reaction ‘This person needs to be punished and sent to prison as a punishment.’”

“You’re not going to hear that someone is making a name for themselves by needlessly convicting people so that they can look good” — Eric Gonzalez

It’s a plan that stresses work with community organizations to try to mitigate factors that increase criminality and recidivism, treat victims of sex crimes and hate crimes with more sensitivity and move the DA’s office from a horizontal prosecution method where ADAs each handle different sections of a case to a “vertical” method where each ADA handles every piece of the case. It will also create a whole new set of data to judge how effective prosecutors are beyond just the people sent to prison.

“Nobody’s saying that if somebody tortures and murders somebody they’re supposed to get out,” Lisa Schreibersdorf, the founder and executive director of Brooklyn Defender Services who served on the Justice 2020 Committee, told Splinter. “But if somebody steals a car, and they’re 17 years old, is jail, the only way that we can prove that we’re not soft on crime? It’s so much more powerful to be thoughtful and not [think] that mass incarceration is the solution. It’s not, it already hasn’t worked.”

While she called the overall philosophical goals of Justice 2020 “exciting,” Alyssa Aguilera, the executive director of VOCAL NY, an organization that advocates for people affected by HIV/AIDS, the drug war, homelessness and mass incarceration, said the initiative’s reliance on open data is something that particularly sticks out to her.

“There is just so much opaqueness in the way that a lot of prosecutors’ offices are operating,” Aguilera, who served on the Justice 2020 committee, told Splinter when she explained what she thought one of the most important pieces of the plan could be. “Part of the reason why we launched Court Watch [a volunteer organization that shows up to court proceedings in the city and tracks the actions of prosecutors] is because [a DA’s office] could say, ‘Okay, we’re not going to ask for cash bail on misdemeanors.’ But then [Court Watch] trains people to be [present at] arraignment [hearings], and we could see many times when people are asking for cash bail on misdemeanors. And so it’s really important that…robust data is not only collected, but it’s shared regularly. And from there, we can, you know, sort of really gauge what kind of progress is being made.”

Gonzalez said he wants to expand the way his office qualifies success in order to prove his ideas work. “District attorney’s offices do a great job in the metrics of measuring how many cases they’re prosecuting, what the win-loss ratio is how many convictions they get, the type of top count. But when you actually ask the DAs, can you prove that that disposition actually made a difference in public safety? There’s no metrics that exists for that, and when we do diversion of cases, are we keeping the community safer or not?”

“I’m wary of the title of a progressive prosecutor, and whether that’s an oxymoron, right? They still have a very distinct role in the justice system.

Data will also be important to making sure that orders from the top of the pyramid filter down to action in the bureaucracy that’s further removed from the executive offices. “You know, some of those folks who have been here for a while have to make the change,” Gonzalez said. A culture change in an office as big as the DA’s office doesn’t happen overnight, and could be tripped up by bureau chiefs who don’t believe in the mission.

A former assistant district attorney under Gonzalez told Splinter that Gonzalez has the ability to move uncooperative middle management into other positions in the DA’s office, and that the attitude shift in the office started before Justice 2020 was even announced. “They asked you at every level, ‘What does it mean to be a prosecutor? What does it mean to do justice?’ And I think that they weeded out people who were all about putting people in jail,” the former ADA, who was granted anonymity because he now works in city government, said.

Vincent Schiraldi of Columbia Justice Lab, another Justice 2020 committee member, said that introducing new metrics which show decarceration is the right approach could wind up being the key to Gonzalez both keeping community support on his side and using that support to get political actors outside of his control.

“The city should want to play ball with [Gonzalez] because if they don’t you can put more people into Rikers Island and that costs them more money than a therapy program. And so by bringing the community along, he’s not alone. Because if I’m the mayor or the next mayor, I want to know what your constituents feel about this? Because I’m not diverting this population unless I know people are willing to accept that,” Schiraldi told Splinter.

“It’s a fact that we are going to save the system money if we’re not needlessly sending people to the jail or prison,” Gonzalez said. “The number that I heard for how much it costs to keep someone in our prison systems is something like $260,000 a year. I think a lot of that money could be better spent on working with community-based organizations and groups that provide social services and services so people won’t be offending in the first place and what dealing with the individual needs: drug treatment, mental health treatment, other kinds of social services.”

Of course, it’s easy for someone holding the district attorney’s office to make grand promises about a kindler, gentler prosecution team and not follow through. Since his announcement ending cash bail, Manhattan’s Vance has come under withering criticism from activists who have spent time in court seeing the DA’s words falling short in practice.

And a prosecutor, even one committed to a less punitive vision of public safety, can’t be a panacea for a community. “I’m wary of the title of a progressive prosecutor, and whether that’s an oxymoron, right? They still have a very distinct role in the justice system,” Aguilera said. “The thing that I’m really cautious about is I never want to see people only get access to services or resources they need because of their entanglement with the justice system. Poverty and homelessness, drug use, mental health, these are all drivers from incarceration. And the thing I would caution is entangling them too much with the justice system, and making sure people can get those resources anytime,” she told Splinter.

Progressive prosecution also has to be more about deeds than words. Professor Alex Vitale, a sociologist at Brooklyn College and the author of The End of Policing, told Splinter that Gonzalez will have to actually show ways he’s turning these recommendations into action (something the Justice 2020 report promised), and avoid continuing some of the existing processes the office relies on right now.

“Is this going to be focused deterrence? Well, they’re already doing that,” Vitale said. “And I think it’s terrible. [The report] says we’re going to recommend services to these kids. But mostly, it’s punitive. Right now they’re doing these lists of high-risk kids, and then threatening them and surveilling them and subjecting them to enhanced penalties. And they give them some phone number hotline that they can call to get non-existent and social services.”

(For the uninitiated: “focused deterrence” is a strategy that identifies potential violent repeat offenders and subjects them to increased surveillance while attempting to move them away from criminal activities, and “enhanced penalties” are sentences that are increased based on prior convictions.)

With a move towards less expensive measures than Rikers, like drug treatment, supervised release and early parole, Gonzalez did say he wants to see any eventual savings put towards poorer neighborhoods. “You can look at someone’s zip code, where they’re born, you can often tell whether what chance they have of going to jail or not. Once you’re born in the wrong neighborhood, your likelihood of going to prison, is increased six-fold. And, you know, that means that there’s failures in that individual neighborhood and that’s where those criminal justice savings should be reinvested,” he said.

Vitale also said that when it comes to funding community organizations and neighborhoods, Gonzalez doesn’t need to merely rely on asking the city to give him less money. “Is the DA going to take asset forfeiture money and start putting it into community based services?” Vitale asked, an idea that Queens DA candidate Tiffany Caban has embraced. “That’s a lot more concrete.”

In the aftermath of the report’s release, Gonzalez has shown a willingness to continue hearing out his critics. Gonzalez didn’t initially embrace the recent effort in New York to decriminalize sex work, a notable difference from a pair of candidates in the Queens DA’s race have who said they’d decline to prosecute charges related to sex work, or even mention sex work in Justice 2020. When asked about it, his office told the Brooklyn Eagle that the DA was willing to “take a fresh look” at the enforcement of loitering laws, but that he didn’t support the proposal to decriminalise sex work because of concerns over human trafficking. Since then though, Gonzalez has said that he supports decriminalization, and also announced that he would meet with advocates for it to hear out if they have a “better way” to deal with trafficking while not punishing sex workers.

And as you might expect for a wholesale reinvention of a major government office, it’s going to take time to see what the ultimate payoff is from Justice 2020, especially since a huge factor in its success is outside of the DA’s control. “For any county prosecutor in New York City, the police really are autonomous,” Andrew St. Laurent, a former public defender now in private practice, told Splinter. “They do not answer to the DA’s office, they answer to the mayor.”

Both the NYPD and the Patrolmen’s Benevolent Association had representatives on the committee that built Justice 2020, but St. Laurent suggested there’s going to be the same challenge to get the buy-in from officers on the ground as the DA has in getting the mid-level bureaucracy in his office to go along with the plan. “Even if you have the police commissioner, and the captains and deputy inspectors all signing on, we’re talking about ground level decisions made by sergeants and police officers on the scene,” St. Laurent said, a phenomenon lawyers in the city continue to observe:

For example, St. Laurent mentioned announcements from district attorneys that they would no longer prosecute marijuana arrests. The policy has resulted in fewer marijuana arrests over time but enforcement is still centered on black and Latinx New Yorkers. “That [policy is] fine. But for the people who are actually getting arrested and run through the system, and then getting their charges dismissed on arraignment, they’ve just spent, 12, 15, 24 hours in custody,” St. Laurent said. “They don’t necessarily feel like this was a great outcome for them, or that there was a real change in the marijuana policy of the city of New York, at least in the way they experienced it.”

Gonzalez said that he will be satisfied when people feel that the system is fair. “If they’re a victim of a crime, they’ll be treated by my office with respect, their cases will be taken seriously and prosecuted effectively. But if someone is accused of a crime, they’re not going to be treated unfairly. You’re not going to hear that someone is making a name for themselves by needlessly convicting people so that they can look good,” he said.

Dave Colon is a freelance reporter and the second-best dressed man in the New York City press corps.