Courtroom (photo: @nakrnsm)

Earlier this year, a report on use of the “trial penalty” -- the increased likelihood that a defendant, if proven guilty at trial, will face a harsher sentence than if they had opted into a plea deal -- in New York showed that its practice by district attorneys threatens the constitutional rights of defendants, limits law enforcement transparency, and weakens the overall integrity of the justice system.

The report, from the New York State Association for Criminal Defense Lawyers, in cooperation with the National Association of Criminal Defense Lawyers, then prompted the organizations to ask related questions of this year’s candidates in the wide open and highly-competitive and -consequential race to be the next Manhattan District Attorney. An eight-candidate Democratic primary for the seat being vacated by District Attorney Cyrus Vance, a Democrat, is being voted on this month by eligible Manhattanites.

The trial penalty is widely considered to be a driving force behind mass incarceration and wrongful conviction, serving as a loophole through which law enforcement can escape a vital check on its overreach. Its use can be driven by a number of factors including mandatory minimums and overcharging by lawyers who, faced with burdensome caseloads, want to save time by avoiding trials while also racking up as many convictions as possible. 

Released in late March, the report indicated that 94% of surveyed criminal justice practitioners across New York State acknowledged the presence of the trial penalty as a component of criminal proceedings in their county. Those responses were supported by data showing that in 66% of cases sampled, defendants had experienced a trial penalty.

The two organizations reached out to candidates in the race for Manhattan District Attorney for specific answers on how they planned to approach the issue if elected to the office, the top prosecutor and law enforcement official in Manhattan, and a position of national prominence.

Responses were provided by Democratic candidates Tali Farhadian Weinstein, Alvin Bragg, Tahanie Aboushi, Eliza Orlins, Dan Quart, and Lucy Lang, as well as Repuplican candidate Thomas Kenniff, who is awaiting the results of the primary before going head to head in the November general election. Democrats Diana Florence and Liz Crotty did not respond.

In their responses, nearly all of the candidates signaled opposition to mandatory minimums, but only Aboushi, Orlins, Quart and Farhadian Weinstein explicitly indicated that they would advocate for their repeal once in office. A universal refrain throughout the questionnaire was a need to establish a “Conviction Integrity Unit” or a taskforce of that kind by another name to specifically review wrongful convictions and instances of excessive sentencing. Candidates also reached consensus on the need to eliminate the use of bail as a means to coerce defendants into taking pleas as well as support for limited judicial oversight of plea bargaining and “second looks,” or the right to petition for a lesser sentence after a period of time.

Tahanie Aboushi, a civil rights attorney, outlined a plan to guarantee defendants their Sixth Amendment right by disclosing all discovery promptly, ensuring attorneys are fully compliant with the letter of Brady and open file, enacting a no-call list so witnesses, especially those in law enforcement, remain credible, and dismissing cases where law enforcement has violated constitutional rights.

Taboushi drew on personal experience in her response, revealing that her mother was charged to coerce her father into taking a plea deal. “She was nothing more than leverage,” Aboushi wrote, “the prosecutors did not care about what would happen to me or my siblings.”

When prompted about the underlying issues that perpetuate the trial penalty -- specifically unrestricted prosecutorial charging discretion, mandatory minimum sentencing statutes, and discretionary use of enhancements for prior convictions, Aboushi promised her tenure as district attorney would be marked by an “aggressive declination policy.”

She aims to charge the least serious offense possible and when enhancement in sentencing is discretionary, promised to never advocate for its application. She also presented plans to end the Early Case Assessment Bureau where overcharging is said to often take place, instead supervising each case and requiring approval for prosecutors wanting to deviate from her policies. 

Regarding previous cases in which the trial penalty was employed, Aboushi supports use of a Conviction Integrity Unit to review wrongful convictions, cases involving police or prosecutorial misconduct, extreme sentencing, or sentencing that “has long since ceased having any arguable public safety component.” The unit would then focus on remedies by requesting new trials, reducing sentences, and authoring reports that explore the major drivers of wrongful conviction -- sentence length, gender, race, and criminal history. 

With respect to the disproportionate likelihood of Black defendants under the age of 25 to receive the trial penalty, Aboushi indicated that her declination policy would extend to charges involving young adults, and that her office will focus on expanding  access to family court and Youthful Offender status for any young person who does wind up exposed to the adult judicial system.

“A guiding principle of our office will be that we must do all we can to stop the patterns of racism and bias that have been ignored for far too long,” Aboushi wrote, promising to stop prosecution on certain types of offenses if bias is proven in the application of the law.

Alvin Bragg, a former federal prosecutor and top deputy to the New York State Attorney General, explicitly stated in his response that he would not allow sentence recommendations after a hearing or trial to be longer than those offered prior. The district attorney office under his control would not, he said, rely on traditional metrics and would instead shift focus to a more holistic equation involving a review of the cost and racially-disparate impacts of incarceration as well as the effects on recidivism, public safety, and reentry.

On the underlying factors contributing to use of the trial penalty Bragg proposes minimizing pretrial detention, which can lead to more coercive plea bargaining practices and using incarceratory sentences in only the most extreme cases. He stopped short of promising an abolition to mandatory minimums, outlining the restrictions of the office, which bar him from doing so, but advocated using misdemeanor charges to avoid them and voiced opposition to sentence enhancement.

Bragg also shared that his plan to avoid violation of Brady -- a legal statute ensuring open disclosure of all exculpatory evidence -- involves a culture shift in the office away from “winning” and towards true justice. 

Bragg plans to deal with previously-tried cases by abolishing the current Conviction Integrity Unit and replacing it with his own Free The Wrongfully Convicted Unit which will start from scratch. In response to the racially-disparate use of the penalty he reiterated his status as the only Black candidate in the race, laying out plans to track disparities in real time and publish comprehensive data throughout the criminal process, and engaging “all the diverse communities within Manhattan.”

Lucy Lang, a former assistant district attorney in Manhattan and more recently head of a criminal justice institute, stressed in her response the importance of dealing with the “extensive backlog” of cases as a means of securing the Sixth Amendment rights of New Yorkers. On the driving factors of the trial penalty Lang promised to take mandatory minimums into consideration before indictment and to have a default policy against using conviction enhancements. Her response to any potential violations of Brady involves establishment of a new position -- the Prosecutorial Ombudsman. This would be an independent attorney acting as an oversight officer, reviewing allegations of misconduct and either submitting ethics complaints to the New York State Bar Association or identifying individual lawyers to the District Attorney for discipline or dismissal accordingly. 

Regarding previous convictions, Lang plans to create a new unit -- the Retroactive Review Unit -- which would review cases with hopes to reduce “extreme” sentences, account for growth while incarcerated, and improve reintegration. In response to racism in sentencing and the trial penalty, Lang proposed a number of in-office changes, requiring staff to be trained in the history of harm between the district attorney and communities of color as well as implicit bias. She promised to regularly visit incarcerated New Yorkers and to require all employed attorneys to participate in the Inside Criminal Justice course that places district attorney staff members alongside incarcerated students to study criminal justice and write policy together.

Eliza Orlins, a former public defender until jumping into the Democratic primary for district attorney on a decarceral platform, also advocates for plea deals to be made on the record and promised that sentences offered in bargaining would match those recommended after trial. She leaned into the political powers of the office as well, vowing to use the “bully pulpit” to abolish court fees. On the underlying causes of the trial penalty, Orlins proposed eliminating “unrestricted prosecutorial charging discretion” and is in favor of working with legislators in Albany to abolish mandatory minimums. She says the issue of discretionary use of enhancements for prior convictions is more nuanced but needs to be reformed in the way it is applied to defendants of different races. 

On violations of Brady, Orlins’ was straightforward: evidence will be offered immediately to defense, the right to prosecutorial review should be waived. She wants to establish a Conviction Review Unit with a broader approach, and promises to develop a notification system once in office that will identify when cases veer from policy. Those policies would warn against overly long sentences, sentences that deviate from the pretrial offer, and criminal charges not “preceded by an attempt at diversion.” Orlins indicated she would also use the CRU to address racial disparities and produce data analysis on how to identify them within the system. She also promised not to prosecute drug possession cases, which she says are often levied inequitably in communities of color.

Dan Quart, a New York State Assembly member, is proposing to fight the trial penalty by providing defense with a full, complete, and relevant discovery so all parties have the same information. He also promises greater flexibility and transparency during the plea bargaining process as well a commitment to decline prosecuting multiple misdemeanor charges and downgrade certain penal law offenses from felonies to misdemeanors. On the underlying causes of the trial penalty, Quart assured he would not as DA rely on unrestricted prosecutorial charging discretion or request cash bail. He also cited his experience in the legislature as uniquely qualifying for a working relationship aimed at eliminating mandatory minimums. 

In reference to violations of Brady, Quart argued that by declining to prosecute low-level offenses, he could free up resources to support assistant district attorneys in complying with discovery rules and securing thorough and effective work. On retroactive review of convictions, Quart doubled down on criticism of current Manhattan DA Vance and promised to work with the Legislature to reform penal law Section 440, which he argues would give greater flexibility to defendants claiming to be innocent or that their convictions were secured improperly. 

The racial disparities evident in use of the trial penalty need to be public knowledge, Quart argues, joining other candidates in the promise to share data on charging decisions and plea offers. He also set himself apart by vowing not to use the “enterprise statute” for drug sweeps or to use surveillance-based technology, citing both as tools that disproportionately target young men and boys of color.

Tali Farhadian Weinstein, a former federal prosecutor and general counsel to Brooklyn District Attorney Eric Gonzalez, stressed the need for robust investigation to secure a fair trial and dependence on the discovery changes New York enacted in 2019 to ensure defendants have the vital information needed to exercise their Sixth Amendment rights. To address the underlying causes of the penalty, Farhadian Weinstein says she will staff the office’s Early Case Assessment Bureau with only senior prosecutors whose judgement is more easily trusted in the charging of offenses that have been disparately applied. She also promised to support legislation eliminating mandatory minimums and sentencing enhancements, favoring instead a system that “allows for more discretion for prosecutors and judges, and avoids the imposition of severe penalties in cases in which public safety does not require such sentences.”

Farhadian Weinstein’s responses were generally shorter than her peers, making succinct points about “early and open discovery” regarding Brady violations and advocating “vigorously” for the creation of a “second look mechanism” meant to review and correct excessive sentences. To combat racial disparities, she committed to partnering with outside organizations who could review data on the differences in charging and sentencing. On sentencing generally, Weinstein promised to require the assistant district attorney to seek the minimum sentences, with supervisory approval necessary in order to seek a higher sentence. 

Thomas Kenniff, a former prosecutor and military veteran is the sole Republican candidate in the race. In response to the survey, Kenniff promised to address the trial penalty by “charging crimes proportionately as opposed to tactically.” His solution relies on an increased budget for the DA’s office and institutional defense providers, calling it “naive” to think a burdensome caseload doesn’t add pressure to keep cases out of trial, and arguing that appointing additional judges and creating additional trial parts will also aid the process.

On the issue of underlying factors, Kenniff states that both sentencing enhancements based on prior convictions and mandatory minimums have a place in crime deterrence but need to be sufficiently reviewed by supervisors and should not be used for upcharging. On Brady violations and transparency, Kenniff says his philosophy has always been “when in doubt, turn it over” and that the digital resources put out by the DA’s office could be made more user friendly for defense attorneys. 

Kenniff is a proponent of the use of the Conviction Review Unit to look at previously tried cases but says he will “be respectful of a court’s autonomy in matters of sentencing,” while reviewing instances where defendants were sentenced disproportionately, seeking redress “where appropriate.” In response to the data proving racial disparities in application of the trial penalty, he promised to evaluate each individual case and take into account all factors in mitigation at sentencing, ensuring there is supervisory approval in place before a sentencing recommendation is made to a court. 

The final section of the questionnaire prompted candidates to answer a series of yes or no questions. All seven -- six Democrats and one Republican -- answered in the affirmative when asked whether they would instruct their ADAs to provide full access to discovery and not just the potentially exculpatory evidence as well as whether they support proportionality between pre-and post-trial sentencing. Nearly the same consensus held true for a question on support for the repeal of NYCPL § 220.10(5), which limits the ability to resolve a case by pleading guilty to a lesser charge, with the exception of Farhadian Weinstein, who said she needed to study the proposal further. 

All candidates also signaled support for an increase in public defense funding, and an express prohibition within The Code of Judicial Conduct of retaliatory or vindictive sentencing for a defendant who rejected a plea deal and went to trial. When prompted about whether prosecutors should be prohibited from conditioning plea offers on a waiver of statutory or constitutional rights necessary for a defendant to make an informed decision on whether to plead guilty all candidates replied in the affirmative except for Farhadian Weinstein, who again said she needed more information.

A slightly more split reaction came on a question about whether it should be deemed unethical for a prosecutor to seek a higher sentence compared to a pretrial offer based on if the defendant litigates their statutory or constitutional rights, including the right to trial. Aboushi, Bragg, Lang, Orlins, and Quart all responded yes. Keniff said not in all cases, and Farhadian Weinstein said it also might be appropriate in some cases.