After he was sworn into office last month, the new district attorney for Manhattan, Alvin Bragg, issued a memo that caused widespread confusion and great consternation among police unions, the city’s new police commissioner and conservative politicians. The widow of one of two police officers killed in January called him out in her eulogy last week.
Mr. Bragg’s memo suggested he would downgrade certain felonies, including many robberies, to misdemeanors. It also suggested prosecutors would largely stop seeking jail or prison for some crimes, including certain assaults and criminal possession of a gun unless the law requires them to do otherwise. Prosecutors were told to consider whether someone posed a threat or created a “genuine risk of physical harm” when they decide whether a felony charge is warranted. But in general an exception to the rule of leniency appeared to require extraordinary circumstances.
Mr. Bragg has since acknowledged the confusion caused by his memo and to a degree walked himself back. His goal for prosecuting store robberies, he said, was to move away from prison sentences for what he called “shoplifting gone bad” — a situation in which someone steals from a store while carrying a weapon like a knife or a screwdriver, but doesn’t display it. Mr. Bragg also said that his office would continue to seek incarceration for “walking around Manhattan with a gun.” In other words, it would be business as usual for the ordinary gun case.
The uproar was similar to the blowback progressive prosecutors have faced in Philadelphia and San Francisco, for example, as they have tried to reduce the use of jail and prison. What’s been drowned out in the clamor is strong evidence that less prosecution and incarceration pays off in improvements in public safety.
In the end, given Mr. Bragg’s retreat, his policies may have less impact than progressives hope for or his critics fear. But there is no doubt that New York is especially fertile ground to pursue these progressive approaches because it has a head start on mental health and substance abuse counseling programs and diversion efforts to keep offenders out of jail and in jobs or school.
Accumulating research in well-designed studies supports the idea, counterintuitive though it may seem, that prosecuting fewer people can actually reduce crime. Last year, for instance, researchers looked at more than 67,000 misdemeanor cases in Suffolk County, Mass., which includes Boston, and found that people arrested but not charged for offenses like drug possession and shoplifting were less than half as likely as those who were prosecuted to be arrested again two years later for a new crime.
Another study from Harris County, Texas, which includes Houston, found that people charged for the first time with felonies, including drug possession and theft, were almost half as likely to reoffend over 10 years if they were offered an alternative to prison, supervision while they live in their communities, which upon completion led to dismissal of the charges against them. A third study published last month found that diversion for young people for some felonies in San Francisco reduced the probability of a subsequent conviction by a third over two years.
This research measures what’s called specific deterrence — the chance that a person directly affected by a policy will be deterred from future crime. One key motivation for success for offenders is to avoid a major barrier to employment, a criminal record. In the Harris County study, those diverted from prison were almost twice as likely to be employed later as those who were not. People with jobs have a better shot at leading a stable life, and that discourages crime.
None of these studies found an overall increase in crime. This is called general deterrence — the effect a policy has on the crime rate. In another study from 2021, the researchers who conducted the study in Suffolk County looked at the effect on local crime rates of so-called progressive prosecutors, who rely less on jail and prison. In 35 jurisdictions, a progressive district attorney had no significant effect on the rate of serious crimes. A modicum of mercy, it turned out, did not lead to lawlessness.
Since the 18th century, the concept of deterrence has been based on the swiftness, certainty and severity of punishment. The research backs up district attorneys like Mr. Bragg who are betting that their predecessors overrated the effectiveness of severe penalties.
On the other hand, swiftness and certainty of punishment, which hinge on the probability that a crime is detected, are important in holding down crime. The evidence shows, not surprisingly, that when more police officers are around, people are more likely to believe they’ll be caught if they commit a crime. But, more important, police presence can deter crime without increasing arrests overall.
Increasing misdemeanor arrests produces little value in public safety while disproportionally affecting Black residents, which helps explain why far more Black than white people report fearing the police — even to the point that some say they’d rather be robbed than questioned by an officer without good reason.
Relying on the police and prosecutors to prevent crime, as many cities have more or less done for decades, is a mistake, argue some public safety experts. City governments “can provide as much, if not more, safety as police, without the unavoidable toxicity that comes with force” when they work with residents and local organizations to strengthen the social fabric of neighborhoods, according to Elizabeth Glazer, a director of Mayor Bill de Blasio’s Office of Criminal Justice, and Patrick Sharkey, a sociologist at Princeton, in a 2021 report for the Square One Project, a justice reform group.
They call for continuing efforts to expand youth employment programs, mental-health services, the deployment of neighborhood workers trained to stop disputes from escalating into violence, and the redesign of public spaces. Studies have shown that planting grass and trees on vacant lots is associated with significant drops in gun violence. If people feel safe, then they’re more likely to be out and about, serving as eyes on the street. And the stronger the connections are among residents, the more likely they are to look out for one another.
New York had a rough 2020 and 2021, when homicides and shootings rose, as they did across the country in the pandemic. The fatal shootings so far this year, including the killing of two police officers who were responding to a 911 call in Harlem and a teenager working at Burger King, have prompted the new mayor, Eric Adams, to pick up the old law-and-order tools — a police crackdown and a call for prosecuting 16- and 17-year-olds caught with illegal guns as adults if they don’t disclose where they got the weapon. (The New York Legislature raised the age of criminal responsibility to 18 in 2017.)
But Mayor Adams is ignoring the lessons of his own city. The Brooklyn district attorney’s office under Eric Gonzalez, another progressive, runs a voluntary diversion program for young people caught with guns that has lowered the rate of rearrest and conviction for those in the program compared to their peers who went to prison. Participants plead guilty and then, instead of being locked up, get the help of a social worker to find a job or go to school.
Around the city, courts in partnership with nonprofit organizations have developed other successful diversion programs. Almost 25,000 people a year participate in programs through the Center for Court Innovation that offer mental-health and substance-abuse counseling and “restorative-justice circles” where offenders must reckon with the impact of their wrongdoing and how to rectify it. Officials from other cities routinely visit New York to see how its programs operate, according to Chidinma Ume and Brett Taylor of the Center for Court Innovation.
President Biden is coming to the city this week to meet with Mayor Adams about gun violence — a sign the White House wants to align with the mayor. It’s a good sign that Mr. Bragg and Mr. Gonzalez are scheduled to be part of the event as well, according to their offices, and Mr. Biden should showcase the record and the research that support their approach. Both point the way to making the city safer and more vital.
Emily Bazelon is a staff writer for The New York Times Magazine and author of “Charged: The New Movement to Transform Prosecution and End Mass Incarceration.”
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