Tahanie Aboushi discusses her newly expanded proposal to not prosecute offenses that criminalize poverty, mental health issues, and substance use, and to reduce incarceration for all cases.
As more district attorneys win elections on promises to reform the criminal legal system, demands are mounting for them to not just tinker with its edges but directly downsize it. The goal, for many activists, isn’t only for this system to treat people differently, but to ensure people never encounter it in the first place.
Today Tahanie Aboushi, a candidate for DA in Manhattan’s 2021 election, rolled out a list of more than 40 offenses she says her office would not prosecute because they criminalize poverty, mental health issues, and substance use. Her new policy proposal builds on an earlier promise to end the prosecution of a shorter, and more qualified, list of charges.
If she is elected, she would not file criminal charges over drug offenses, sex work, driving without a license, disorderly conduct, some theft charges, fortune telling, and many more, in cases where these would be the top charge. Such cases would be outright dropped when brought to her by the police.
Aboushi, a civil rights attorney, is one of eight candidates in the Democratic primary to replace DA Cy Vance, who has not yet said whether he will seek re-election. A number of her opponents have said they would decline to prosecute some offenses that are on her list as well.
New York should “stop over-relying on the DA’s office and the police to respond to everything that goes on in society,” Aboushi told the The Appeal: Political Report in a Q&A. “Interaction with the justice system is destabilizing.”
This would substantially reduce the “footprint” and also the budget of the DA’s office, Aboushi vows. Her memo states she would reduce the budget by half.
“When we clean those cases out,” she said, “we’re going to see we don’t need an office of this size, with so many different moving parts, all contributing to the very issues we’re fighting against.”
Among Aboushi’s opponents, Assemblymember Dan Quart has released a set of 18 offenses he would not prosecute, including resisting arrest and drug possession for personal use. (Aboushi includes these and also drug sales on her list.) Public defender Eliza Orlins says she would decline to charge offenses like drug possession and petty theft that perpetuate cycles of poverty and inequality, and last week launched a new plan to decriminalize sex work. Lucy Lang, a former prosecutor, also says she would not prosecute sex work. Alvin Bragg, another former prosecutor, lists on his website offenses that he would “[make] it the default” to not prosecute. Also running are former prosecutors Liz Crotty, Diana Florence, and Tali Farhadian Weinstein.
Although the scope of these declination policies varies, the very notion that DA candidates would be competing to see who will most reduce their office’s jurisdiction would have sounded strange as recently as 2018, back when Rachael Rollins released a list of 15 offenses she would not prosecute on her way to winning the DA race in Boston. Her decision to propose a blanket declination policy, as opposed to saying she would treat these charges differently, less harshly, or less frequently, was heralded by reform advocates for pushing the boundary of what was being debated in DA elections.
John Pfaff, a professor of Fordham Law School, wrote in The Appeal at the time that declination policies like Rollins’s challenge “the still-dominant attitude that the only real way to prevent problematic behavior—at least in poorer, more heavily policed communities—is to threaten people with ever-more-severe criminal punishment and incapacitate them in prisons when those threats fail.” He added that “we overstate the effectiveness of law enforcement responses,” which leaves other public agencies off the hook for providing adequate housing or healthcare. It is now somewhat more common for candidates to run on declination, including in races in Queens in 2019 and Austin last year.
Aboushi spoke to the Political Report about what it means to reduce criminalization. She explained why she extends her declination promise to drug sales, why she is proposing to fully decriminalize sex work, and makes the case that her declination policies would also address police misconduct.
In the course of the Q&A, Aboushi also addressed sections of her policy that call for reducing convictions and incarceration over offenses that aren’t on her declination list, including higher-level offenses that involve violence. She said she aims to “shrink the footprint” of the system in all cases “without exception.”
“This is a person who is part of our society, that even if incarcerated will one day be released and be part of our society, and we will be accountable for the state of this person, their family and their community,” she said.
This interview has been condensed and lightly edited for clarity. (See also: Appeal Live hosted a forum for candidates last week.)
It’s become commonplace to hear prosecutors talk about “alternatives to incarceration” for low-level offenses, for instance behaviors linked to substance use, but what many mean by this is that they will use diversion programs or specialized courts, which typically still involve charging and prosecuting the cases. Why did you prefer rolling out this different policy of committing to decline these charges?
The intention of the policy is to show how we’re going to shrink the footprint of this office and focus on a public health approach. A lot of the charges that are prosecuted by this office are those that criminalize poverty and cover for bad policing. We’re talking about declining these types of cases that don’t impact public safety but serve to really destabilize communities of color.
We have to ensure that we’re coming from a public health perspective, and stop over-relying on the DA’s office and the police to respond to everything that goes on in society.
People need resources, programming, and help, and this can’t come from the DA’s office.
Using the DA’s office, prosecution, and incarceration only makes bad situations worse. In terms of diversion programs, right now, people who need help have a carrot hanging over their head, where they have to complete all these conditions; some require them to plead guilty, others put them in a position to disclose information that can be used against them. This environment is not conducive to rehabilitation. It’s not conducive to the treatment that they actually need. And people should have the autonomy to decide if they want to engage in these programs and treatments.
Your memo promises your office will “review every arrest,” and “decline to prosecute every case on which the top charge is one listed in Appendix A,” which is a list of roughly 40 charges. Is your proposal here meant to set a presumption of how to deal with those charges, which your staff may still circumvent depending on the circumstances, or a categorical policy of not using them?
We plan to decline to process every case in which the top charge is listed in Appendix A. We’ve worked on this policy in co-governance with a lot of our community based organizations, public defenders, civil rights attorneys, those in the public health realm. So there are no exceptions here.
In the past, some critics of declination policies have said that such commitments to not prosecute certain offenses go beyond the role of the prosecutor. What is your response to that view?
The laws are disproportionately applied for people of color. If the same law was supposed to apply to everybody, we wouldn’t see these disproportionate impacts that are largely ignored.
And it’s my job to understand what are the root causes, how do we rehabilitate, how do we prevent these things from happening in the future? How do we prevent recidivism, how are we infusing resources into the community to ensure that we are coming from a holistic approach for people, victims, to achieve the support they need?
Earlier you said the DA’s office can’t respond to “everything that goes on in society.” We’re now in an economic crisis that threatens to worsen poverty and spark a rush of evictions. I bring up evictions since some of the charges you are vowing to not prosecute (such as trespassing) are often used to criminalize homelessness. But we’re hearing about austerity and belt-tightening. What does that mean for the policies you are defending? What does your platform imply for the services and actions needed from the rest of the city, and what happens if those don’t come?
The priority of budgeting should be to ensure stability, education, housing, employment, mental health services, substance abuse treatment programs. We need to move away from relying on the police and the prosecution as the first-line response. City agencies need to step up and do more for the communities, and the DA’s office needs to be seen as a partner in ensuring and maintaining stability, not in destabilizing people then handing them over to the city agencies and community organizations and saying, “Now figure out funding to fix people that we’ve helped break.”
You mentioned earlier that current policies aren’t taking public safety into account properly. Why do you think your policies would improve safety, and what then do you think should be the public response to those offenses that you are saying should still be prohibited?
Today, the way DA offices work is that accountability means incarceration, or some kind of supervision. We can’t conflate accountability with incarceration. I always talk about ensuring co-governance, that the community has a seat at the table, that we are working with organizations like Common Justice, Street Corner Resources, Cure Violence programs, that can help us address root causes, take preventative measures, and focus on rehabilitation.
My father was released from prison in his 60s, he had triple bypass surgery, and it was a breakdown in our relationship. How do we talk about accountability on behalf of the DA’s office for the part we played in that destabilization? I think it’s important to look at the holistic approach, the long term approach: It’s extremely difficult to survive, let alone thrive after having come into contact with the justice system.
You said, “we can’t conflate accountability with incarceration.” When it comes to a declination policy, it’s also criminalization that you’re targeting—whether or not it involves incarceration.
Correct, it removes the criminal penalties and finds alternative ways of accountability. Mass incarceration is a problem, but the mass criminalization of people is also a problem. Even though it might not lead to actual incarceration, the interaction with the justice system is destabilizing.
I’ve asked you about your declination policies, which cover lower-level offenses. Your memo also states you wish to approach all cases differently, including seeking more alternatives to incarceration and deferred prosecution for higher-level offenses that involve violence. Many people who defend criminal justice reforms treat those offenses separately, and for instance say they are specifically looking to reduce incarceration for nonviolent offenses. Why are you choosing to reject that model?
When we talk about decriminalization, shrinking the footprint, and ensuring that resources are available, it’s across the board, without exception: no one being an exception to receive any health, treatment support or resources. This is where the rubber meets the road for the progressive movement. We can decline to prosecute cases that may not impact public safety, but when it comes time to these other charges listed in Appendix B, we have to make sure that our commitment is not only progress but also decarceration.
This is where the holistic approach comes into play. This is a person who is part of our society, that even if incarcerated will one day be released and be part of our society, and we will be accountable for the state of this person, their family and their community. The way things operate now, people are shut out of opportunities.
How would you marry your perspective that incarceration is not the same as accountability, with the criticism aimed at many prosecutors, including Cy Vance, that they are not doing enough when faced with sexual assault cases?
The DA’s office is the introduction to accountability for a lot of victims. I’ve represented plenty of victims of sexual assault, and it is incredibly difficult to have the ear of the DA and the ADAs in the office. Their [approach] is not to focus on the healing of the victim, it’’s to accomplish conviction or to accomplish incarceration, because those are the only accountability tools available to them, or the ones that they choose to use. And we do have victim services organizations and community organizations that want the restorative justice process where healing, rehabilitation, and accountability is allowed to play out.We will center the victim, we will do it through a holistic public health approach, and if it comes to sentencing, we will be careful and mindful of the damage of incarceration and ensure that people still have access to resources and can prove their rehabilitation by offering parole when possible.
Some advocates call to reduce the length of sentences, including life sentences, for higher-level crimes as well. Would your office further those goals?
We sentence people to exorbitantly long amounts of time. We’ve committed to having a sentencing review unit for those who have excessive sentences. We are committed to asking for no more than 20 years with opportunities at parole as early as possible, even 10 years.
Many of the prohibitions on your “declination list” are enforced through over-policing, and many documented cases of police brutality have happened in the course of routine interactions with law enforcement over these offenses. But even if your office does not charge cases, that won’t have authority over what the NYPD decides to do. So can these policies help diminish over-policing, and how?
We have a really robust transparency policy about police accountability. We’re going to work with our partners to start tracking all kinds of data, especially on police officers: Who is bringing the case, what are the allegations made, what are the histories of these officers—similarly to what was done with the analysis on the VICE units.We’ll use this office as a bully pulpit to call for real accountability and go for sanctioning measures that not only reduce the NYPD budget, but make sure we change its practices.
And you say in this memo that you will not prosecute certain charges such as resisting arrest because they “have been used to cover up police misconduct.” How would that advance the accountability demands that have defined the 2020 protests against police violence?
I’ve represented plenty of protesters, including those in the recent protests here in New York, and almost every protester is charged with resisting arrest, unlawful assembly, disorderly conduct. That is the gateway that allows the officers to put their hands on a person, whether it’s arresting them, beating them up, throwing them to the ground. These charges give a cover to the officer for everything else.
It’s more than just saying, after the fact, we are going to put out a “bad cop list.” Charges that are used to cover up bad policing or make for easy arrests, we’re going to take that tool away from them as well.
You are proposing to decriminalize behaviors that are tied sex work. This is a major debate in New York right now, and some are proposing what’s referred to as “the Nordic model,” which, broadly speaking, decriminalizes sex workers but criminalizes sex buyers. Why do you prefer using the DA’s office to advance full decriminalization?
Sex work is a consenting engagement between two adults. It is work, people are engaging in this for income, and that is done with consent. The Nordic model still leaves the door open to have those who engage in sex work to be criminalized. This is not to be conflated with human trafficking, rape, sexual assault. We have plenty of laws on the books that address those things. But particularly for sex work, what we’re seeing, and it was especially problematic in the NYPD’s VICE unit, is that this is a charge used in an abusive manner by police.
When it comes to the war on drugs, your “declination” policy lists possession of controlled substances, which other prosecutors have run on as well, but also their sale. [Editor’s note: In an earlier version of the policy, Aboushi said she would not prosecute a “first offense” when it comes to drug sales, language was removed in the new policy document.] Why are you proposing this broader policy?
I think that’s an important distinguishing factor between myself and others in the race. When you talk about decriminalization, we have to go all the way. Possession cases are sometimes charged as sales cases, and while some think we’re going to have trucks of cocaine delivered right to your door, my goal is to further the conversation about decriminalizing drugs, get people thinking of it as a public health issue, and respond instead with rehabilitation. For those that struggle with substance use disorder, the prosecution system and police and incarceration are not going to get us through those issues.
A significant share of the cases that New York prosecutors are now pursuing fall within the list of charges you say your office will not prosecute. So if you’re elected, where does that leave the DA’s office, in terms of its size and the resources it’d need?
Shrinking the footprint of this office will allow it to meaningfully investigate serious crimes, whether it’s murders, homicides, rapes, sexual assaults, white collar crime. White collar crime has brought our neighbors to their knees time and time again, whether it’s mortgage foreclosure issues, addiction issues, wiping out their savings, Ponzi schemes, wage theft. These are quality of life crimes that go largely uninvestigated, and they’re not held accountable. I’m talking about using this office for these serious crimes and using our resources for that, instead of preying on the vulnerable.
When you say “reducing the footprint,” does that also mean reducing funding, or are you talking of reducing resources from these areas and putting them towards these other goals like white collar crime?
Yes, it means reducing funding. When we make the changes in this office, I will always keep my eye on how we can reduce the funding. For instance, the Manhattan DA’s office got a lot of money to implement criminal justice reform, and when you look at some of the breakdowns, it went to hiring more prosecutors and things of that sort.
What is your expectation for how much your policies would cut the budget of the DA?
You know, the aim would be 50 percent. But if we could do more, we’ll do more. We just spend hundreds of thousands of dollars prosecuting cases that relegate people to debt collectors for the court system. When we clean those cases out, we’re going to see we don’t need an office of this size, with so many different moving parts, all contributing to the very issues we’re fighting against.