Two dozen climate change activists chained themselves together one October morning last year and sat down on the FDR Drive, snarling traffic during the rush-hour commute.
The group — protesting the federal government’s lack of urgency in fighting global warming — was arrested and Manhattan District Attorney Cy Vance’s Office charged them with “obstructing governmental administration,” a misdemeanor charge that carries the threat of jail time. Typically demonstrators would plead guilty to a misdemeanor, a charge the DA would eventually withdraw if one wasn't rearrested in a six-month window, according to veteran attorney Martin Stolar.
But on January 6th, six days into new District Attorney Alvin Bragg’s tenure, something different happened when the protesters appeared in court. Bragg didn’t drop the charges altogether, but the two parties brokered a deal where the cases would be withdrawn once the demonstrators completed an act of community service — painting a climate change mural and hosting a teach-in on the same subject as the mural was unveiled.
Stolar, who was representing the protesters, said the outcome was unprecedented.
“I was delighted,” he said. “Close to 50 years and I've never had a disposition like this before. This is extraordinary.”
The case offers a window into how things might begin to change under Bragg, who campaigned on promises of criminal justice reform and making public safety, rather than punishment, the guiding principle of his administration. But the Democrat's approach has already led some on the right to call for his ouster, less than a month into the job.
The vast majority of cases Bragg’s office will handle won’t be climate change activists. They will likely be routine criminal offenses, such as shoplifting, assault and robbery. And for years, under Vance, Manhattan sent more people with pending criminal charges to Rikers Island than any other borough. “No other borough comes close,” a 2016 report from an independent commission found. That pattern continued through last year, data from the city's corrections department shows.
Last year, Bragg campaigned on reversing that trend and on reducing jail and prison populations more broadly. On his third official day in office, he outlined how he planned to do it — through a combination of declining to prosecute certain cases, limiting when bail was sought along with the length of prison sentences, and modifying what charges to bring.
Those preliminary efforts have been met with a mix of confusion, backlash and in many cases, cautious optimism. Aside from the political backlash — from members of Congress to the City Council — the new DA could face a challenge within the courts themselves. While prosecutors hold immense power within the criminal justice system, Bragg’s ability to implement reforms also rests with judges and members of his own prosecutorial team, and their willingness to go along with his agenda.
"These policies are not really radical,” said Richard Fife, a spokesperson for Bragg’s office. “In fact, Manhattan has over-incarcerated relative to the other boroughs and these data and science-based policies offer a more balanced approach that makes us safer and puts us in line with what is already going on elsewhere."
The new DA appeared on NY1 Wednesday evening to discuss his approach and is expected to address the public Thursday afternoon.
Bragg’s January 3rd policy memo outlined a list of penal codes the office would no longer prosecute, including turnstile jumping, prostitution and resisting arrest. It committed the office to limiting pre-trial detention to a certain number of grave offenses, and said prosecutors would not seek life without parole or sentences more than 20 years for any crime. The memo promised to seek prison time only as a “last resort,” and any exceptions to the new policies would have to be approved by a supervisor.
Bragg’s decarceral promise has become even more urgent, reformers argue, with the ongoing crisis on Rikers Island reaching new levels of severity. Last year, at least 15 people died in detention there, scores of detainees recently went on a hunger strike in protest of their lack of access to medical care, and a damning report by the New York Times underscored how corrections officers had ceded control of entire housing units to gang leaders.
Though public defenders saw the Bragg memo as a restatement of the state’s existing bail laws, and relatively few of their cases fell into the DA's off-limits list, it triggered a tailspin of tabloid coverage, a letter from the police commissioner, and outcry from the police officers union and gubernatorial candidates on both sides of the aisle.
In a January 7th email to members of NYPD, Police Commissioner Keechant Sewell warned Bragg’s new policy not to prosecute obstruction of governmental administration or resisting arrest as top charges would, “invite violence against police officers,” though Sewell and Bragg later met and agreed they would weigh the facts of each case. Republican candidate for governor Andrew Giuliani and failed Republican mayoral candidate Curtis Sliwa blasted Bragg for statements in the memo around only seeking prison sentences for certain crimes.
But Fordham Law Professor John Pffaf pointed out that while Bragg’s policy memo lists only a few charges where he would seek prison time, most of the criminal charges not listed carry mandatory prison sentences, by law.
“Gang assault, assault in first degree, rape in the first degree, kidnapping in the second degree, burglary in the first degree, robbery in the first degree, criminal possession of a weapon in the first degree,” Pffaf said, reading off a list of charges. “For any violent class D felony or higher, they always carry with them a mandatory prison time.”
Amid the public backlash, the memo was also causing confusion behind the scenes. One source inside Bragg’s office, who asked that their name be withheld as they were not authorized to speak to reporters, said it was unclear to assistant district attorneys what to do about pre-existing cases where bail had already been set or where they’d already recommended a sentence to a judge.
“People are operating in a state of confusion,” the source said. “Everybody’s working from the position of the unknown.”
Public defenders, meanwhile, were on the lookout for early indications that the office was shifting course. Alice Fontier, with the Neighborhood Defender Service of Harlem, said in some cases, assistant district attorneys were already asking for exceptions to Bragg’s new rules and supervisors had approved them.
Fontier said her office reached out to Bragg’s leadership teams with those concerns and was told to keep flagging any prosecutors who were out of step with his policy memo. Separately, Bragg’s office had requested a list of previous cases where public defenders thought their clients would be eligible for release from jail under Bragg’s new guidelines. Public defenders across the borough were now waiting to see what would happen with those cases in the coming weeks, she said.
“I continue to be optimistic,” Fontier said. “Change takes time.”
In arraignments, her office had already started to see Bragg’s assistant district attorneys suggesting supervised release rather than pretrial detention more often than under Vance. Judges, however, weren’t always signing off.
“They are asking for supervised release and the judge is setting cash bail,” she said. “[That’s a] significant departure from how things used to operate when the judges and the prosecutor very rarely disagreed.”
Fordham Professor Pffaf said cities like Chicago and Philadelphia that had elected progressive DAs saw a similar rift emerge.
Prosecutors and judges were, “all kind of coming from the same ideological perspective,” Pffaf said. “But when the DA takes a much more progressive view than these judges held when they were DAs, we see much greater pushback.” Bragg’s office has full discretion on what charges to list on a criminal complaint or an indictment, Pffaf explained, but judges have the ultimate power to set bail, within certain parameters laid out by the state’s bail laws. Prosecutors only make recommendations.
“That's another sort of tension he's going to face,” Pffaf said.
Lucian Chalfen, a spokesperson for the New York Court system declined to comment on the new district attorney: “Because the judiciary must remain impartial, any kind of discussion or comment or observation that would be conclusory would be inappropriate."
After just more than two weeks in office, Bragg has already indicated his policy memo was more of a roadmap than doctrine set in stone. The climate change protesters might have had their cases dropped altogether, as the “obstructing governmental administration” charge was one Bragg said he wouldn’t prosecute. In another case, reported on by the New York Post, Bragg sought cash bail for a homeless man accused of robbery, though his public defender thought under Bragg’s new guidance, the man could have been eligible for release.
Amanda Jack, another public defender with Five Boro Defenders, said she’d seen one important change already and pointed to the case of her client Genoly Turner.
Turner, who Jack said is homeless, allegedly tried to steal comforters from the display window of a home goods store on the Upper West Side on Sept. 26. When confronted by a store clerk, he allegedly threatened to stab the worker, though no weapon was recovered and no one was hurt. The store recuperated the comforters, but Vance’s office still charged Turner with robbery in the first degree — a violent felony where the perpetrator “causes serious physical injury to any person,” and is punishable by a minimum of five years in prison. The Intercept first reported on the case.
The practice is known by public defenders as “upcharging,” something they say was routine under Vance. It’s something Bragg’s memo promised to do away with in certain cases of commercial robbery and burglaries.
Under public pressure last fall, Vance reduced the charge to robbery in the third degree, still a felony charge. But on January 5th, Bragg’s office downgraded the charges to petit larceny, court records show; a misdemeanor charge instead of a felony.
“It was never a robbery,” Jack said. “What it means is a prosecutor has finally looked at the allegations and applied the correct statute to it.”