Bill Bratton, former NYPD Commissioner:
“I don’t know how Mr. Adams is going to {reduce crime} when the DA is effectively handcuffing
the police.”
Yeah, great question. Mayor Adams can’t do it alone. He needs the buy-in from other elected
officials, people who are elected to protect the citizens of NYC.
ALVIN L. BRAGG, JR.
DISTRICT ATTORNEY
DISTRICT ATTORNEY COUNTY OF NEW YORK ONE HOGAN PLACE
New York, N. Y. 10013 (212) 335-9000
To: All Staff
From: AlvinL.Bragg,Jr.
Re: Achieving Fairness and Safety
January 3, 2022
Growing up in Harlem in the 1980s, I saw every side of the criminal
justice system from a young age. Before I was 21 years old, I had a gun
pointed at me six times: three by police officers and three by people who
were not police officers. I had a knife to my neck, a semi-automatic gun
to my head, and a homicide victim on my doorstep. In my adult life, I
have posted bail for family, answered the knock of the warrant squad on
my door in the early morning, and watched the challenges of a loved one
who was living with me after returning from incarceration. Late last
year, during a stretch of multiple shootings within three blocks of my
home, I had perhaps the most sobering experience of my life: seeing ––
through the eyes of my children–– the aftermath of a shooting directly in
front of our home, as we walked together past yellow crime scene tape,
seemingly countless shell casings, and a gun, just to get home.
In large part because of these experiences, I have dedicated my career to
the inextricably linked goals of safety and fairness. This memo sets out
charging, bail, plea, and sentencing policies that will advance both goals.
Data, and my personal experiences, show that reserving incarceration for
matters involving significant harm will make us safer.
The policies are premised on several key principles.
• Invest more in diversion and alternatives to incarceration: Welldesigned initiatives that support and stabilize people – particularly
individuals in crisis and youth – can conserve resources, reduce reoffending, and diminish the collateral harms of criminal prosecution.1
1 Michael Mueller-Smith & Kevin T. Schnepel, Diversion in the Criminal Justice
System, 8 THE REV. OF ECON. STUD. 2, 883–936 (2021), https://doi.org/10.1093/restud/
rdaa030 (finding that diversion cuts reoffending rates in half and grows quarterly
employment rates by nearly 50% over 10 years); Amanda Agan, Jennifer Doleac &
Anna Harvey, Misdemeanor Prosecution (Nat’l Bureau of Econ. Res., Working Paper
No. 28600, 2021), https://www.nber.org/system/files/working_papers/w28600/
w28600.pdf (finding non-prosecution of a nonviolent misdemeanor offense leads to
large reductions in the likelihood of a new criminal complaint over the next two years);
David Huizinga & Kimberly L. Henry, The Effect of Arrest and Justice System
Sanctions on Subsequent Behavior: Findings from Longitudinal and Other Studies, in,
THE LONG VIEW ON CRIME: A SYNTHESIS OF LONGITUDINAL RESEARCH 244 (Akiva M.
Liberman, ed., 2008); John Laub & Robert Sampson, Life-Course and Developmental
Criminology: Looking Back, Moving Forward, J. OF DEV. AND LIFE-COURSE
CRIMINOLOGY (2020).
Day One Letter January 3, 2022 Page 2 of 3
• Reduce pretrial incarceration: Particularly given the ongoing crisis
at Rikers, we must reserve pretrial detention for very serious cases.
The data show that the overwhelming majority of those released
pretrial do not commit a violent crime while at liberty.2 Studies
show that even three days in jail can lead to a loss of housing,
employment, and strain family connections and increase the
likelihood failure to appear in court.3 Studies also indicate that
incarceration, in and of itself, can create public safety risks.4
• Focus on Accountability, Not Sentence Length: Research is clear
that, after a certain length, longer sentences do not deter crime or
result in greater community safety.5 Further, because survivors and
victims of crime often want more than the binary choice between
incarceration and no incarceration, we will expand our use of
restorative justice programming.6
• Limit Youth in Adult Court: Research shows that brain
development continues until up to age 25,7 youth are
physiologically subject to more impulsive behavior, and are still
capable
2 New York City Mayor’s Office of Criminal Justice, How many people with open
criminal cases are re-arrested? (December 2021), http://
criminaljustice.cityofnewyork.us/wp-content/uploads/2021/12/Pretrial-DocketedRearrest- Contextual-Overview-December-2021-Update.pdf (finding that from
January – June 2021 fewer than 1% of the 45,000- 50,000 people out pretrial are
arrested for nonviolent or violent felonies each month); see also, Pretrial Release
Dashboard, New York City Criminal Justice Agency, https://www.nycja.org/
pretrial-release-dashboard (including pretrial outcome data through October
2021).
3 Christopher Lowenkamp et al., The Hidden Costs of Pretrial Detention, THE
LAURA AND JOHN ARNOLD FOUND., https://craftmediabucket.s3.amazonaws.com/
uploads/PDFs/LJAF_Report_hidden-costs_FNL.pdf. 4
Studies in New York City, Miami, Pittsburgh, Philadelphia, and Houston
comparing similar people released and detained before trial consistently found a
modestly greater risk of re-offending once the pretrial period ends for detained
individuals. For New York City, see Emily Leslie & Nolan Pope, The Unintended
Impact of Pretrial Detention on Case Outcomes: Evidence from New York City
Arraignments 60 J. OF L. AND ECON. 3, 529-557 (2017), http://
www.econweb.umd.edu/~pope/pretrial_paper.pdf; for Miami and Philadelphia,
see Will Dobbie et al., The Effects of Pre-Trial Detention on Conviction, Future
Crime, and Employment: Evidence from Randomly Assigned Judges (Nat’l.
Bureau of Econ. Research, Working Paper No. N22511, 2018), https://www.
nber.org/papers/w22511.pdf; for Philadelphia and Pittsburgh.
5 Five Things About Deterrence, NAT’L INST. OF JUST., NCJ No. 247350 (2016),
https://www.ojp.gov/pdffiles1/nij/247350.pdf; Daniel S. Nagin, Deterrence in the
Twenty-First Century, in 42 CRIME AND JUSTICE IN AMERICA, 1975-2025,
201-202 (Michael Tonry, ed., 2013); Damon M. Petrich, et al., Custodial
Sanctions and Reoffending: A Meta-Analytic Review, 50 CRIME AND JUST.
(2021), https://www.journals.uchicago.edu/doi/10.1086/715100 (finding
custodial sanctions have no effect on reoffending or slightly increase it when
compared with the effects of noncustodial sanctions and that incarceration cannot
be justified on the grounds it affords public safety by decreasing recidivism).
6 Heather Strang, et al., Restorative Justice Conferencing (RJC) Using Face-toFace Meetings of Offenders and Victims: Effects on Offender Recidivism and
Victim Satisfaction. A Systematic Review. 9 CAMBELL SYSTEMATIC REVIEWS 1,
1-59 (2013), https://onlinelibrary.wiley.com/doi/abs/10.4073/csr.2013.12
(reviewing 10 randomized control trials and finding face-to-face restorative
justice conferences are cost-effective in reducing reoffending and increasing
victim satisfaction).
7 See e.g., Jay N. Giedd, Structural magnetic resonance imaging of the adolescent
brain Adolescent Brain Development: Vulnerabilities and Opportunities, 1021
ANN. N.Y. ACAD SCI. 77 – 85 (2004); Jay N. Giedd et al., Brain development
during childhood and adolescence: A longitudinal MRI study, 2 NATURE AND
NEUROSCIENCE 861-863 (1999); Jim Casey, The Adolescent Brain: New
Research and its Implications for Young People
Day One Letter January 3, 2022 Page 3 of 3
of growth and maturation. Prosecuting youth in our adult criminal court
system can lead to recidivism,8 making neighborhoods less safe.
• Actively Support Those Reentering: Supporting those returning from
incarceration reduces recidivism and thereby makes communities safer.9
We will scale up our support for services for those reentering and
participate substantively in the parole process with a presumption in
favor of release.
Please note that a number of the policies set forth below create
presumptions requiring supervisory approval and/or a writing to
overcome the presumption. These presumptions are intended to reflect
the fact that no set of policies can cover all factual circumstances.
These policy changes not only will, in and of themselves, make us safer;
they also will free up prosecutorial resources to focus on violent crime.
To that end, new initiatives and policies on guns, sex crimes, hate
crimes, and other matters will be announced in the coming weeks. We
also are mindful that, in all of the work we do, discovery logistics are a
constant challenge, and we will be dedicating significant resources to
address this challenge.
Finally, while my commitment to making incarceration a matter of last
resort is immutable, the path to get there through these policies will be
dynamic, and, not static, and will be informed by our discussions
(starting this week in the Trial Division) and our work together in the
weeks and months ahead.
Attached are the day one policies and procedures relevant to the above.
Transitioning from Foster Care YOUTH OPPORTUNITIES INITIATIVE 7-8 (2011), https://
assets.aecf.org/m/resourcedoc/AECF-theAdolescentBrain-2011.pdf.
8 David Wilson et al. Police-initiated diversion for youth to prevent future delinquent
behavior: a systematic review 14 CAMBELL SYSTEMATIC REVIEWS (2018), https://
onlinelibrary.wiley.com/doi/full/10.4073/csr.2018.5 (finding police-led diversion of
low-risk youth who come into contact with the justice system is more effective in
reducing a youth’s future contact with the justice system compared to traditional
processing); Jeffrey Fagan, Aaron Kupchik & Akiva Liberman, Be Careful What you
Wish For: Legal Sanctions and Public Safety Among Adolescent Felony Offenders in
Juvenile and Criminal Court, Columb. Univ. Pub. L. & Legal Theory, Res. Paper
Series (2007) (finding that serious adolescent offenders prosecuted in the criminal
court are likely to be rearrested more quickly and more often for violent, property and
weapons offenses, and they are more often and more quickly returned to incarceration);
see also, Benjamin Steiner & Emily Wright, Assessing the Relative Effects of State
Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance? 96 J.
CRIM. L. & CRIMINOLOGY 1451, 1451 (2006), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=491202#; Jill Wolfson, CHILDHOOD ON TRIAL: THE FAILURE
OF TRYING & SENTENCING YOUTH IN ADULT CRIMINAL COURT (2005).
9 See E.g., Blair Ames, NIJ-Funded Research Examines What Works for Successful
Reentry, The National Institute of Justice, National Institute of Justice, (Oct. 7, 2019),
https://ojp.gov/pdffiles1/nij/252734.pdf
POLICY & PROCEDURE MEMORANDUM
SUBJECT: Day One Polices & Procedures
The following policies and procedures are effective immediately.
A. CHARGING
The Office will not prosecute the following charges, unless as part of an
accusatory instrument containing at least one felony count:
• a) Marijuana misdemeanors, PL §§ 222.30 and 222.50.
• b) The act of refusing to pay the fare for public transportation
under Theft of Services, PL §165.15(3).
• c) Trespass, PL §§ 140.05, 140.10, 140.15, unless the trespass is a
family offense pursuant to CPL § 530.11, accompanies any charge
of Stalking in the Fourth Degree under PL § 120.45, or is approved
by an ECAB supervisor.
• d) Aggravated Unlicensed Operation, VTL § 511.1. Note that any
vehicular collision resulting in any physical injury should be
pursued as an act of reckless driving, reckless endangerment,
negligent or reckless assault, failure to yield, or any other
applicable statute. This policy addresses only criminalization of a
ALVIN L. BRAGG, JR.
DISTRICT ATTORNEY
TO: All Staff
FROM: Alvin L. Bragg, Jr. CC:
DATE: Monday, January 03, 2022
EFFECTIVE: Monday, January 03,
2022
failure to pay fines and does not address the criminalization of
dangerous driving. Also, this charge may be prosecuted as part of
any accusatory instrument containing a charge of Vehicle and
Traffic Law 1212, 1192, or 511.2.
• e) Any violation, traffic infraction, or other non-criminal offense
not accompanied by a misdemeanor or felony.
• f) Resisting Arrest, PL § 205.30, except for the act of resisting
arrest for any crime not included on this declination list.
• g) Obstructing Governmental Administration in the Second
Degree, PL § 195.05, other than for the act of significantly
physically interfering with the lawful arrest of another
Day One Polices & Procedures January 3, 2022
Page 2 of 7
person. Significant physical interference includes, at a minimum, the
acts of shoving, tackling, pushing, punching, and other similar acts.
Otherwise, this charge must be approved by an ECAB supervisor.
h) Prostitution, PL § 230.00. ECAB supervisory approval required to
prosecute Patronizing a Person for Prostitution under PL § 230.04. This
does not include any felonies, or coercive practices regularly performed
by those who traffic in the sex trade or related crimes such as money
laundering.
i)
Outdated offenses such as Obscenity, PL Article 235, and Adultery, PL §
255.17.
Misdemeanor charges for which a desk appearance ticket is required by
law shall be offered diversion. Diversion is defined as the opportunity to
complete a short but meaningful programming mandate after arrest
through a community-based provider, based on the needs of the person
arrested. Upon completion of the mandate, the Office will decline to
prosecute the case.
• a) Consistent with past policies, those arrested and offered
diversion will be permitted to consult with an attorney regarding
their options.
• b) If the person accepts the diversion, the Office will work to
ensure they do not need to appear in court, including if their
diversion mandate is not complete before their scheduled
appearance.- Cases for which a desk appearance ticket is issued but not required
by law to be issued will be offered the diversion option defined
herein, unless: a) the allegations include any sex offenses, assault,
menacing, any allegation of harm or the threat of harm to another
person, or offenses requiring an order of protection during the
pendency of the case; or b) based on a holistic analysis of the case,
diversion would be inconsistent with public safety goals. - The Office will continue to screen desk appearance ticket cases to
ensure that diversion is not presumptively offered in rare but
important instances of great public concern where such tickets are
required by law, such as cases involving white collar theft, the
death of another person by an act of driving, and other cases for
which non-carceral sentences would not be presumed as per the
policies on carceral dispositions described infra. - ADAs should use their judgment and experience to evaluate the
person arrested, and identify people: who suffer from mental
illness; who are unhoused; who commit crimes of poverty; or who
suffer from substance use disorders. Immediately identify such
cases to an ECAB supervisor. Charges should be brought
consistent with the goal of providing services to such individuals,
and leverage during plea negotiations should not be a factor in this
decision.
Day One Polices & Procedures January 3, 2022
Page 3 of 7
B.
PRETRIAL DETENTION - There is a presumption of pre-trial non-incarceration for every case
except those with charges of homicide or the death of a victim, a class B
violent felony in which a deadly weapon or dangerous instrument causes
serious physical injury, sex offenses in Article 130 of the Penal Law,
domestic violence felonies or charges of PL § 215.50, public corruption,
rackets, or major economic crimes, including any attempt to commit any
such offense under Article 110 of the Penal Law. For any charge of
attempt to cause serious physical injury with a dangerous instrument,
ADAs must obtain the approval of an ECAB supervisor to seek pretrial
detention.
The following offenses shall be charged as follows:
• a) An act that could be charged under PL §§ 160.15 (2, 3, or 4),
160.10(2b), or 160.05 that occurs in a commercial setting should
be charged under PL § 155.25 if the force or threat of force
consists of displaying a dangerous instrument or similar behavior
but does not create a genuine risk of physical harm.
• b) The possession of a non-firearm weapon under Penal Law §
265.02(1) shall not be charged unless as a lesser included offense,
and § 265.01 shall be charged instead.
• c) Residential burglaries: An act involving theft of property from a
storage area or other portion of a dwelling that is not accessible to
a living area that could be charged under PL § 140.25(2) should be
charged only under PL §140.20 and not under PL §140.30 or PL
§140.25(2).
• d) Commercial burglaries: An act involving theft of property from
a commercial establishment that could be charged under PL §
140.25(2) because such establishment is technically part of a larger
structure that contains dwellings shall only be charged under §
140.20.
• e) Drug cases: If there is a reasonable view of the evidence
indicating that a person arrested for the sale of a controlled
substance is acting as a low-level agent of a seller, such person
shall be charged with 220.03 and no felonies and therefore offered
diversion. Also, unless such charge is a lesser included offense or
unless the defendant actually sold a controlled substance, the
offense of Penal Law § 220.06 shall not be charged and 220.03
shall instead be charged.
Prosecution may be deferred if the discovery available at the time of
arraignment is so sparse, or so potentially voluminous, that the ADA
believes it poses a significant risk that the Office will not meet its
discovery requirements in arraigning the case immediately, provided that
doing so poses no public safety risk. Delaying a case while we gather all
the evidence and make sure it is appropriate to file an accusatory
instrument will ensure that we are in full compliance with the letter and
spirit of discovery requirements.
Day One Polices & Procedures January 3, 2022
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• a) Exceptions will be granted in extraordinary circumstances,
based on a holistic analysis of the facts presented, criminal history
(particularly any recent history of not returning to court without
sufficient cause or explanation), and any other information
available.
• b) An ADA may request pretrial detention in such extraordinary
circumstances after submitting the Application for Pretrial
Detention form to their ECAB supervisor.- Where release is recommended, the following rules apply:
• a) The Office will consent to release on recognizance
whenever release is recommended by the CJA risk
assessment or if it is the defendant’s first arrest. Exceptions to
this rule apply in the following circumstances: a violent
felony involving serious physical injury, a class A, B, or C
violent felony; or where the defendant lacks a NYC address
and does not have a phone to receive court appearance
reminders.
• b) In any other circumstance, the Office will consent to
supervised release, or other support strategies to ensure
returning to court. - For cases where there is no presumption of non-incarceration, the
Office should carefully consider all known facts. Special
consideration should be given to any request for pre-trial detention
for following individuals who face unique hardships, such as
individuals with health conditions that could suffer serious harm or
death if incarcerated. - When requesting bail, ADAs must request a partially or unsecured
bond in the same amount as the cash bail request. - If defense counsel requests, ADAs working in the arraignment
parts shall inform defense counsel prior to their client’s
arraignment of the Office’s bail request and any plea offer. - For those individuals whose conditions, particularly their physical
and mental health, change during incarceration, the Pathways to
Public Safety Bureau will review and consent to a change in bail or
release conditions if necessary. - If individuals miss court dates, ADAs shall contact defense
attorneys to request them to provide the reason for the violation or
failure to appear in court. If the person fails to appear but there is
no evidence that the person intentionally attempted to flee from
law enforcement, such as evading police or giving a police officer
an alias, then recommend release upon the original conditions. - If there is an allegation that an individual has violated a condition
of release, ADAs shall contact the defense attorney to determine
whether the violation of the condition is related to circumstances
such as health issues, transportation or child care issues. If there is
clear evidence that the person willfully violated conditions of
release, ask for the next-least
Day One Polices & Procedures January 3, 2022
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restrictive condition to ensure they fulfill the conditions of release.
Supervisory approval is required for any deviation from this policy. - In appropriate cases, the Office will consent to excusing the defendant
from having to attend routine court appearances.
C. DISPOSITIONS - The Office will not seek a carceral sentence other than for
homicide or other cases involving the death of a victim, a class B
violent felony in which a deadly weapon causes serious physical
injury, domestic violence felonies, sex offenses in Article 130 of
the Penal Law, public corruption, rackets, or major economic
crimes, including any attempt to commit any such offense under
Article 110 of the Penal Law, unless required by law. For any
charge of attempt to cause serious physical injury with a dangerous
instrument, ADAs must obtain the approval of an ECAB
supervisor to seek a carceral sentence.
• This rule may be excepted only in extraordinary
circumstances based on a holistic analysis of the facts,
criminal history, victim’s input (particularly in cases of
violence or trauma), and any other information available.
ADAs shall also consider the impacts of incarceration on
public safety, the impacts of incarceration on communities,
the financial cost of incarceration, the racially disparate use
of incarceration, and the barriers to housing, employment,
and education created as a consequence on a period of
incarceration.
• An ADA may request incarceration in such extraordinary
circumstances after submitting the Application for Carceral
Sentence form to their supervisor at least 3 business days
prior to the court date upon which such disposition is sought,
and after such supervisor so approves. - For cases in which there is no presumption of non-incarceration,
there is also no presumption that incarceration is the appropriate
outcome. ADAs should consider whether a carceral sentence is
appropriate based a holistic analysis of all known facts. - ADAs shall presumptively indict both top counts and lesser
included counts when presenting cases to the grand jury, permitting
a wider range of statutorily permissible plea bargaining options.
This presumption can be overcome with supervisory approval. - When seeking a carceral sentence, the following rules apply,
absent exceptional circumstances:
• For a determinate sentence, the Office will request a
maximum of 20 years.
• For an indeterminate sentence other than one with a
maximum of life, the Office will request no more than a
maximum of 20 years, absent exceptional circumstances.
Day One Polices & Procedures January 3, 2022
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D.
c. For an indeterminate sentence with a maximum of life, the Office will
request no more than a minimum of 20 years, unless required by law.
• The Office shall not seek a sentence of life without parole.
• In exceptionally serious cases such as homicides where lengthy
periods of incarceration are justified, ADAs shall consider the use
of restorative justice as a mitigating factor in determining the
length of the sentence, only when victims or their loved ones
consent. - If a case is determined to be appropriate for a disposition involving
services, the Office will rely on outside professionals to determine
the appropriate service and length of placement, and shall analyze
cases involving substance use and mental illness through a public
health lens. The Office shall not require proffers for such services. - Restorative justice programming will be expanded significantly,
including for violent felony cases in which the victim consents. - For any case in which a person violates the terms of a non-carceral
sentence or pre-plea programming mandate, the Office will seek a
carceral “alternative” only as a matter of last resort. The Office
will take into account that research shows that relapses are a
predictable part of the road to recovery for those struggling with
substance abuse, and the Office will reserve carceral
recommendations for repeated violations of the terms of a
mandate.
SPECIAL PROCEDURES FOR CASES INVOLVING JUVENILES
AND YOUNG ADULTS - For adolescent offenders charged with offenses defined in
subdivision 1 of CPL §722.23, the Office shall presumptively not
file motions preventing removal to family court unless the charges
are extremely serious and the young person does not demonstrate
amenability to the services available in Family Court. An ADA
may overcome this presumption only after submitting the
Application Opposing AO Removal form to their supervisor no
later than 10 days after arraignment, and after such supervisor so
approves. - For adolescent offenders charged with offenses defined in
subdivision 2 of CPL §722.23, the Office shall presumptively
consent to removal to family court under CPL § 722.23(2)(e)
unless the charges are extremely serious and the young person does
not demonstrate amenability to the services available in family
court. An ADA may overcome this presumption only after
submitting the Application Opposing AO Removal form to their
supervisor at least 3 days prior to the hearing held pursuant to §
722.23(2)(a), and after such supervisor so approves. - The Office will consent to the removal of all juvenile offenders to
Family Court pursuant to CPL § 722.22, permitting the court to
make its own analysis of the statutory factors,
Day One Polices & Procedures January 3, 2022
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E.
where required, unless consent is not statutorily justified under
paragraph b of subdivision 5 of § 722.22. - For those cases not removed to Family Court, determinations as to
the appropriate disposition will be based on identifying underlying
needs and what services and supports can be provided to the
person charged and their caretakers to address those needs
ultimately improving public safety. We will rely on communitybased programs already in use in the Youth Parts as well as adding
restorative justice practices to accomplish these goals. - For those cases not removed to Family Court, the Office will
consider removals to Family Court based on continuing behavior
while cases are pending in criminal court, and sealing of charges
upon demonstration of rehabilitation. - For those cases involving adults under the age of 25, ADAs should
make an individualized determination of the appropriate outcome
for each case recognizing that the same brain development
variables that illuminate our views on juveniles should play a role
in our determinations of young adult cases. Some offenses
committed by persons in this age range are attributable to lack of
impulse control, peer pressure, and the lack of insight and
appreciation of consequences that comes with age. Therefore,
ADAs prosecuting those under the age of 25 should consider
dispositions aimed at rehabilitation, including reducing charges,
offering deferred prosecution, or offer pleas that permit a person to
avoid a criminal record, depending on the circumstances of each
case including the input of victims.
SPECIAL PROCEDURES FOR CASES INVOLVING
NONCITIZENS
The Office will seek dispositions that avoid immigration consequences
for all misdemeanors, and all felonies for which non-carceral outcomes
are the presumptive outcome. The procedures for seeking a disposition
that carries immigration consequences in any such case are the same as
the procedures for seeking a carceral disposition for cases in which nonincarceration is the presumption.