Next Tuesday, September 12th, Brooklyn votes for its next District Attorney. Technically it’s a primary election, but in a city as blue as New York, whoever wins next week will surely be the new District Attorney.
The Brooklyn race is hotly contested and deserves the attention of voters, especially those who want to see an end to mass incarceration. But no one seems to know about these races. And I can’t fault folks for not knowing: even the NYC voter guide left out any mention of the election.
As a public defender at Brooklyn Defender Services, a public defense firm representing about half of all arrested in Brooklyn, my colleagues and I bear witness to the impact of thousands of decisions every day by the Brooklyn DA and the hundreds of prosecutors beneath him. They have the power to help, but all too often they use that power to hurt my clients. We see the impact of prosecutorial decision-making on the lives of our clients, their families, and communities — mostly the poor and people of color. We understand what needs to happen to make a DA’s office run the way it was intended and be an agent for fairness and justice, not just convictions, on a large scale.
But most voters don’t see the same things we see. The role of District Attorneys and prosecutors in driving mass incarceration has long been a mystery to most, overshadowed by a focus on policing and prisons. On Tuesday, voters will choose a candidate largely based on the opinions of media outlets like the New York Times, rather than the experiences of practitioners like me. That’s why it’s critical that the New York Times gets it right.
This year the Times got it extraordinarily wrong — although they did not necessarily endorse the wrong candidate. Rather, it was how the Times framed their endorsement that was the problem. The Times focused on which candidate they believed would be best positioned to continue the legacy of the former Brooklyn District Attorney, Kenneth Thompson, who died tragically from cancer last year. Thompson’s former Deputy and now candidate for Brooklyn DA, Eric Gonzalez, took his place as Acting DA.
This week, the Times urged readers that it is “critical” that the post of District Attorney be occupied by someone like Thompson, stating: “This race is really about who will most effectively continue the Thompson era.”
The problem is that Ken Thompson was no reformer. Although he had good intentions, his policies made the criminal justice system even harsher than it had been under the previous administration.
The Times hailed Thompson as “someone with a deep awareness of the injustices and inequalities that are baked into the criminal justice system.” He may have been “aware,” but his actions on nearly every justice issue unfortunately only reinforced inequality.
But you don’t have to take my word for it. The New York Times and other local and national outlets reported extensively on the broken promises of the Thompson era throughout his tenure.
Thompson helped drive up the Rikers population with bail requested in almost all cases, including some of the most minor misdemeanor cases.
Thompson fueled the fire of broken windows policing. When it came to quality of life crimes, Thompson implemented and continued harsh policies that prosecuted rather than helped addicts, the mentally ill, and the homeless. Even when the other borough DAs were no longer enforcing an outdated and extremely harsh policy of vilifying people charged with misdemeanors, Thompson continued to enforce “Operation Spotlight,”requiring his prosecutors to request a one-year sentence on Riker’s Island for matters as innocuous as jumping the turnstile, possession of a crack pipe, misdemeanor trespass, and shoplifting.
In my office’s experience, under Thompson, it became harder than ever before to get the DA’s office to agree to alternatives to incarceration. People who previously would have easily received treatment, which would have saved their lives and made Brooklyn safer, were routinely forced to accept jail or prison sentences, a throwback to a time two decades earlier.
Thompson’s office was heartless when it came to mothers in the criminal justice system, asking for bail, and then demanding orders of protection separating kids from their families. And talk to any public defender and they’ll tell you, Thompson was significantly worse than his predecessor on withholding evidence, restricting the evidence that was turned over to the defense, despite his promises to provide open-file discovery.
While Thompson recommended probation for the officer who was convicted of shooting Akai Gurley, a move so disturbing that it compelled the assigned prosecutor (now a candidate for Brooklyn District Attorney himself) to resign in protest, he forcefully pushed for a 19-year sentence for a young black teen who set fire to a mattress, resulting in the tragic, yet clearly accidental death of an officer.
Despite the Times’ claim that Thompson had a deep “commitment to reform the win-at-all-costs mind-set of too many prosecutors,” the Assistant District Attorneys that worked for him by and large did not reduce their hard-core desire to seek convictions, including withholding evidence until the last minute to gain a strategic advantage.
Instead of a reasoned approach to gun violence, Thompson supported reactionary “gun courts,” which continue today to shun mercy and any concept of individualization in favor of locking up largely young black men for simple possession, no matter the justification, whether or not they even touched or owned the gun.
And while the Times claimed that Thompson stopped prosecuting low-level marijuana offenses, he actually kept prosecuting the vast majority of them, and that policy continues today. In a story aired today on WNYC, Beth Fertig reported that despite Thompson’s 2014 promise to stop prosecuting the majority of low-level marijuana cases to combat the gross racial disparities in arrest rates, in 2016, his office still prosecuted 82% of marijuana arrests, 86% of which were black or Latino. And when Thompson did decline to prosecute, he did so one-third of the time for whites, compared to only 14% for blacks.
Of all the things that Thompson received praise for doing, the creation of a “conviction integrity unit” is at the top of the list. Yet, despite the Times crediting Thompson with the creation of the unit, his predecessor, DA Hynes, actually did. Without doubt, Thompson’s office deserves credit for righting many wrongful convictions and exonerating and releasing many innocent people. Yet ironically, while his office worked to investigate wrongful convictions based on prosecutorial errors decades after the fact, the policies and practices of his office in dealing with then-pending cases increased the likelihood of a whole new slate of wrongful convictions in real time all over again.
As but one example, on the eve of a suppression hearing in the case of a 53-year-old client of mine who had consistently told me that he never possessed the gun he was charged with, Thompson’s office finally disclosed that judges had previously found one of the officers in the case “incredible” in another nearly-identical gun case. This means the judge thought the officer had lied on the witness stand. Rather than disclose this immediately, which the DA is legally required to do, they waited until the last minute, presumably hoping that the client would plead guilty and they would not have to present this officer as a witness.
After digging deeper, it turned out that the team of arresting officers had been found incredible numerous times by different judges, using a fantasy version of near-identical gun arrests for many cases. It was only after the New York Times reported on the case and these officers that DA Thompson finally agreed to review and ultimately dismiss the charges. He promised to investigate the officers. But he apparently never followed through on that promise.
One year later, a fellow public defender called me. Apparently Thompson’s office was still relying on those same officers in her case and were refusing to drop the case or turn over any information. In a cover story, the Village Voice reported that it appeared Thompson never did really investigate those officers after all.
Ultimately, no one should be elected because of what someone else stood for. The next District Attorney will be functioning in the future, not the past. Voters are not voting for a legacy. Voters are choosing who will have decision-making power over close to 400,000 lives in the next four years. They are choosing who they want making thousands of choices at thousands of discretion points that will make or break lives. There are so many critical decisions — whether and what to charge, whether to ask for bail, whether to offer rehabilitation or demand incarceration, whether to keep families together or destroy communities, whether to listen to defense attorneys when we try to bring claims of innocence to their attention, and infinite more. Voters will choose who gets to make those decisions.
There are six candidates. Whoever you feel would make the best District Attorney for the future, not the past, should get your vote. Make an informed choice next Tuesday. Don’t rely on the Times for this one.