As even the Supreme Court has acknowledged, plea bargaining is the heart of the criminal legal system.[1] In New York, approximately 99% of misdemeanor cases and 94% of felony cases are ultimately resolved through guilty pleas.[2] In many — if not most — of those cases, the guilty plea is the result of a negotiated plea agreement between the prosecutor and the defense attorney. Although plea bargains can provide benefits to people accused of crimes, there are many characteristics of the plea system which make it coercive. As the Innocence Movement has made clear, even innocent people regularly plead guilty to crimes they did not commit. 

The plea system is a symptom of an out-of-control criminal legal system that arrests and prosecutes far too many people, particularly people of color. Plea bargaining allows the criminal system to churn through this mass of cases efficiently. But justice — not efficiency — should be the goal of the criminal system. 

The plea bargaining system in New York City is beset with racism. The Manhattan District Attorney’s office is significantly more likely to offer plea deals that include prison time to Black people.[3][4] One of the main factors that prosecutors in Manhattan currently use to determine the plea offer that someone will receive is their prior conviction history. Given the systemic over-policing of Black and Brown communities in New York, people from those communities are far likelier than their white counterparts to have previous convictions, and therefore to receive worse pleas.[5] 

My office will implement several reforms to address the coercive force of plea bargains, shifting the focus from efficiency to fairness and justice. Since the plea process intersects with so many areas within the criminal legal system, many of these reforms overlap with other areas of reform I have outlined. 

Ending the trial penalty

As District Attorney, I will put an end to the trial penalty in plea offers. Someone who opts to go to trial will not be punished for that decision: the plea offer will not become worse because that person has chosen to hold my office to their burden of proof. If someone who has been accused of a crime wants to resolve their case before a trial, my office is committed to presenting them with a fair and just plea offer. That plea offer will remain the same throughout the case and will not change because that person has chosen to pursue pre-trial hearings or go to trial.[6]

There are many negative outcomes to our current lack of pre-trial hearings and trials. Police searches and seizures are rarely litigated and therefore so much police misconduct remains hidden. In order for the Fourth Amendment to have meaning, people accused of crimes must have the opportunity to challenge police conduct. In addition, when cases do not go to trial, the creation of new law through appellate review is stunted. Jurors are meant to be a check against government misconduct, but they cannot serve this function if there are no trials. For all these reasons, criminal trials are critical and people should not be punished for going to trial. 

In order to facilitate this policy change, I will make crucial updates to the intake and initial charging process. My office will make sure that initial charging decisions are fair, rather than simply charging people with the highest possible offense as the current DA does. Charging people fairly from the start will make it possible for my office to keep charges consistent throughout the entire process of prosecuting a case. I will also ensure that the initial screening of incoming cases is thorough and comprehensive, to decrease the likelihood that charges change as new evidence comes to light.  

After a trial, the judge is responsible for sentencing in accordance with state sentencing laws. While the District Attorney cannot guarantee that someone will not receive a higher sentence after a trial than the one they received in the plea offer, my office will make make every effort to ensure that sentencing recommendations post-trial that are in line with our pre-trial offers, including working around mandatory minimum sentences and sentencing enhancements wherever possible. Finally, I will lobby for legislative change to reform mandatory minimums and harsh sentencing laws. A robust system of trials is critical to an open and fair adversarial justice system. 

Banning coercive plea negotiating tactics

I will ban coercive plea negotiation tactics, including exploding offers, “take-it-or-leave-it” offers, and offers that come with the threat of more serious charges if the person who has been accused refuses the plea offer.[7] These tactics are coercive and have no place in a fair justice system. 

Prosecutors often require that people accused of crimes waive most of their rights at the time of the plea, including the right to appeal, to discovery, and to challenge evidence that has been obtained in violation of their Fourth, Fifth, or Sixth amendment rights.[8] To get some sense of how pervasive and problematic this practice is, in some places prosecutors have required people to waive their right to effective assistance of counsel. During the pandemic, several federal prosecutors have required people to waive the right to petition for compassionate release in the future as a precondition for a plea bargain.[9] These requirements mean that a guilty plea becomes nearly unreviewable. The right to appeal and other constitutional and statutory rights should not be traded away as bargaining chips in the plea negotiation process. I will not require anyone to waive their right to appeal when they accept a plea. 

Providing a check against systemic government misconduct — especially police misconduct

As discussed above, the prevalence of plea bargaining deprives people who have been accused of crimes the opportunity to investigate and uncover government misconduct that occurred in their case. This practice also has system-wide implications: trials and pretrial motions provide an important opportunity for the public to learn about, and challenge, police practices that may be unconstitutional or unethical — particularly since most plea offers require people to waive appellate review, which averts the possibility of legal challenges to law enforcement or other government measures.[10] By effectively forcing the vast majority of people to accept guilty pleas, prosecutors prevent evidence of systemic misconduct from coming to light.[11]

My policy of eliminating the trial tax will likely produce an increase in the proportion of cases that go to trial. The number of criminal trials in New York has significantly decreased in the past several decades.[12] This practice of increased pleas as opposed to trial mostly came about in response to the “tough on crime” mass incarceration policies that began in the 1980s. My office’s policy will be to decline to prosecute almost all low-level offenses. Decreasing the intake of cases into the criminal legal system will allow us to reduce the number of plea bargains in favor of trials for those wishing to exercise their constitutional rights. Further, by banning coercive plea negotiating tactics that force people to waive their constitutional rights, I will ensure that avenues for investigating and contesting government and police misconduct remain open.

Discovery reform

Despite recent discovery reforms in New York State, people are still forced into a position of accepting or rejecting a plea offer before they have had an opportunity to review discovery materials, including exculpatory information.[13] My office will go above and beyond the requirements of federal law and New York law to ensure that everyone accused of a crime has full access to discovery and sufficient time to review such discovery before making a decision about a plea offer. 

As the Supreme Court has commanded, the duty of the prosecutor is to do justice, not achieve outcomes. Wherever a standard is created for ethical prosecutorial conduct, it will be my office’s policy to exceed it. It will be my office’s policy to make Brady material available to defense counsel the moment my office is aware of it, even at arraignment. It will be our policy to ensure that all people accused of crimes have all discovery materials in the DA’s possession at the time of a plea, and to ensure that discovery is turned over as soon as my office obtains it, not at intervals set by the court. 

Furthermore, our policy will be to maintain records on every instance of police misconduct, be it physical abuse, other civil rights violations during police-citizen encounters, or instances of perjury, and to ensure the defense bar is made aware of them. Further, even in this early stage of the campaign I have been in close consultation with scholars and experts in the field of prosecutorial legal ethics to help guide my policies in this area. I will continue this practice for the remainder of the campaign and after I assume office. 

Finally, I will hire and empower a District Attorney of New York Ombudsman to oversee our legal ethics policies, ensure that they are being carried out in each and every department in the office, investigate allegations of behavior that violate our policies and suggest corrective action, and continue to refine our policies.

Eliminating pretrial detention

In my Pretrial Fairness & Abolishing Money Bail policy, I committed to eliminating pretrial detention except in the rarest of circumstances. A significant body of literature confirms that pretrial detention induces guilty pleas, including of innocent people.[14] A study of over one million criminal cases over the course of five years in New York City found that people charged with misdemeanors were 7% likelier to plead guilty if they were detained pretrial, compared with similarly situated people who had been released; among people charged with felonies, those who had been incarcerated pretrial were 10% likelier to plead guilty compared with their peers.[15] Another large study found that pretrial detention resulted in a 4.7% increase in the likelihood that someone accused of a crime chose to plead guilty among people who would likely have otherwise been acquitted, diverted, or had the charges against them dropped.[16]

The evidence is clear: the enormous harms of jail lead many people to plead guilty simply to avoid or reduce the amount of time spent in pretrial detention. By largely eliminating pretrial detention, my office will create a much fairer plea bargaining process, removing the coercive threat of jail time as a motivation to take unfavorable pleas. People facing charges will be able to fight their cases from outside of jail and determine the best course of action based on the strength of the prosecution’s case against them, the plea offered, and their desire to exercise their constitutional right to a trial. 

Increasing transparency

I also commit to making the plea process more transparent to the courts and to the public. Too often plea bargaining is shrouded in secrecy. Lawyers make hallway deals and there is no record of how and why the deals are negotiated. This is antithetical to an open and public adversarial system. Prosecutors in my office will be required to record the offer made and the reason behind the offer. They will also be required to put these reasons on the record.[17] 

Information about plea offers will be included in the extensive data published as part of my office’s transparency mission. I will require all plea offers to be on the record, even if the person accused of a crime rejects the offer.[18] Publishing this data is necessary for the public to be fully informed about the inner workings of the DA’s office and to hold me accountable. It is also a necessary precondition for defense attorneys to determine whether their clients are being offered fair pleas, in line with the plea offers the similarly situated clients have previously received. By failing to publish data about plea offers, the current DA’s office has made it extraordinarily difficult to precisely determine the extent to which racism or other biases affect plea offers. 

Avoiding severe collateral consequences, especially for immigrants

With the understanding that many people accused of crimes are facing severe collateral consequences as the result of their convictions, my office is committed to working with people accused of crimes to secure outcomes that avoid some of the worst of these consequences, particularly negative immigration consequences.[19] I recognize that prosecutors are often “gatekeepers” to our unfair federal immigration system and that plea bargaining is a way to keep non-citizens out of the hands of an immigration system where they are often without counsel and without options.[20] I take seriously the responsibility to protect non-citizens from the harm inflicted by our country’s harsh immigration system.

Policy Changes

• As District Attorney, I will abolish the trial tax by maintaining consistent plea offers if someone chooses to exercise their constitutional right to a hearing or trial, and keeping our sentencing recommendations post-trial consistent with our plea offers.
• I will ban coercive plea negotiation tactics, including exploding offers, “take-it-or-leave-it” offers, and offers that come with the threat of more serious charges if the person who has been accused refuses the plea offer. 
• My office will never require people to waive their constitutional right to appeal or to receive discovery as a precondition for a plea.
• It will be my office’s policy to ensure that all people accused of crimes have all discovery materials in the DA’s possession at the time of a plea, and to ensure that discovery is turned over the instant my office obtains it.
• My office will publish extensive datasets about pleas — including publishing plea offers that were rejected — to create a transparent plea bargaining process.
• My office will always consider collateral consequences — particularly immigration status consequences — when making plea offers, and do everything possible to avoid those consequences.

[1] Supreme Court of the United States. Missouri v. Frye, Syllabus, https://www.supremecourt.gov/opinions/11pdf/10-444.pdf.

[2] “The New York State Trial Penalty: The Constitutional Right to Trial Under Attack,” New York State Association of Criminal Defense Lawyers, March 2021,  www.NACDL.org/NYSTrialPenaltyReport.

[3]  Kutateladze, Besiki L., and Nancy R. Andiloro, “Prosecution and Racial Justice in New York County — Technical Report,” January 2014, https://www.vera.org/downloads/Publications/race-and-prosecution-in-manhattan/legacy_downloads/race-and-prosecution-manhattan-technical.pdf.

[4]  Kutateladze, Besiki L. and Victoria Z. Lawson, “Is a Plea Really a Bargain? An Analysis of Plea and Trial Dispositions in New York City,” Crime & Delinquency 64:6, pages 856-887, Feb 2017, https://doi.org/10.1177/0011128717695224. See also: Ram Subramanian et al., In the Shadows: A Review of the Research on Plea Bargaining, Vera Institute of Justice, Sept. 2020. 

[5]  Kutateladze, Besiki L., and Nancy R. Andiloro, “Prosecution and Racial Justice in New York County — Technical Report,” January 2014, https://www.vera.org/downloads/Publications/race-and-prosecution-in-manhattan/legacy_downloads/race-and-prosecution-manhattan-technical.pdf.

[6]  If my office discovers new evidence that changes the crime, we would reserve the right to change the offer. 

[7]  For a list of coercive plea negotiation tactics, see: Cynthia Alkon, “Hard Bargaining in Plea Bargaining: When Do Prosecutors Cross the Line,” Nevada Law Journal, 2017, https://scholarship.law.tamu.edu/facscholar/862/.

[8]  “The New York State Trial Penalty: The Constitutional Right to Trial Under Attack,” New York State Association of Criminal Defense Lawyers, March 2021,  www.NACDL.org/NYSTrialPenaltyReport.

[9]  See United States v. Sembrano, No. 19-cr-00651-CRB-1, 2020 WL 3161003, at *2 (N.D. Cal. May 28, 2020); see also Order Rejecting Plea Agreement, United States v. Osorto, 445 F. Supp. 3d 103, 104–05 (N.D. Cal. May 11, 2020) (No. 19-cr-00381-CRB-4).

[10]  “The New York State Trial Penalty: The Constitutional Right to Trial Under Attack,” New York State Association of Criminal Defense Lawyers, March 2021,  www.NACDL.org/NYSTrialPenaltyReport.

[11] Ibid.

[12] Manhattan DA Data Dashboard, data.manhattanda.org.

[13] Brady requires the government turn over exculpatory evidence in their possession, but the Supreme Court has not extended the Brady requirement pre-trial. In fact, in United States v. Ruiz, the Supreme Court found explicitly that the government is not required to turn over impeachment evidence before the defendant accepts a plea. My office will commit to turning over all forms of Brady information before a defendant pleads guilty. 

[14] See, for instance: Dervan, Lucian and Vanessa Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem,” Journal of Criminal Law and Criminology 103, no. 1 (2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2071397. See also  literature; Carroll, Jenny E. “Pretrial Detention in the Time of COVID-19,” NULR Online (2020), https://northwesternlawreview.org/articles/pretrial-detention-in-the-time-of-covid-19/. 

[15]  Emily Leslie and Nolan G. Pope, “The Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from New York City Arraignments,” Journal of Law and Economics 60, no. 3 (2017), 529-557, https://perma.cc/C8NR-GGB8.

[16] Stevenson, Megan, “Distortion of Justice: How the inability to Pay Bail Affects Case Outcomes,” https://www.econ.pitt.edu/sites/default/files/Stevenson.jmp2016.pdf.

[17] Jenia Turner, “Transparency at plea bargaining,” 96 Notre Dame L. Rev. 973, 2021, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3545536.

[18] Ibid. 

[19] See the National Inventory of Collateral Consequences of Conviction, https://csgjusticecenter.org/publications/the-national-inventory-of-collateral-consequences-of-conviction/.

[20] Lee, Stephen, “De Facto Immigration Courts,” California Law Review 101, No. 3, June 2013,http://www.californialawreview.org/wp-content/uploads/2014/10/01-Lee.pdf.