Defense of the Bronx DA Policy to Decline to Prosecute

The Bronx District Attorney’s Office has declined to prosecute more cases than the other New York City District Attorney’s Offices. Declining to prosecute cases that cannot be proven, where witnesses are uncooperative, or where the cases are almost certain to be dismissed at a later date is a good policy.

Declining to prosecute these cases means that an arrest has been made, but the cases are not docketed with the court and that the defendants are set free immediately. By comparison, a dismissal happens after a case is docketed and the defendant is brought to court.

WNYC has issued a twopart report, excoriating the Bronx DA’s Office for this policy, which it deems anti-victim.

Rights of the Accused Come First

The Anglo-American criminal justice system is designed to protect the rights of the accused. The victim does have certain rights in the system, but the priority is the it is better for 10 guilty men go free than for one guilty one to go to jail.

Worrying about the victim must be secondary to the concern about prosecuting individuals who cannot be proven guilty. Without cooperating witnesses, there is no way the cases can be proven. To argue that these cases, which will be thrown out later, should be prosecuted anyway only displays the ignorance of the criminal justice system. What purpose does it serve to take a person who cannot be proven guilty, and drag them through court, cost them lost work hours, and make them bear the expense of a defense attorney (or the taxpayer expense of a public defender or assigned counsel)?

It is a Waste of Judicial Resources

It is a waste of judicial resources and prosecutorial resources to prosecute cases that go nowhere.

Cases that are “put through” are docketed by the court, arraigned, and require the accused to be housed and fed by the police and court officers pending the arraignment. After arraignment—if bail is set—the accused may be imprisoned in the city jails at Riker’s Island, and all defendants must come back to court several times until their cases get dismissed. The DA’s offices, public defenders, and courts are swamped with too many cases. Adding more cases, all of which will be eventually dismissed, is a waste of limited judicial resources.

Waste of Police Resources?

Much of Ailsa Chang’s argument is that it is a waste of police resources to throw out these arrests. That is not true. Firstly, it is the responsibility of the prosecutors to ensure justice, not to worry about whether the police money is being properly spent. Secondly, wasting judicial resources would be throwing good money after bad.

It is, however, a waste of police resources to make bad arrests. It is a waste to make arrests, but not do proper investigations and not be able to bring an alleged victim to the district attorney within 24 hours of an arrest. The NYPD, despite the hard work of their officers, does not train their officers how to properly conduct these investigations and work with the DA’s offices to ensure that these cases “stick.” The prevailing culture of the NYPD is such that once an arrest is made, the police officer is done. Investigations are not done as a matter of course, the cooperation of the witnesses is never taken into account when making arrests.

The article quotes Eugene O’Donnell, a professor at John Jay College of Criminal Justice, saying that “with the limited resources this city has . . . the police can’t afford to make so many arrests that go nowhere.” That is true, but the answer to this is better policing and full investigations before arrest.

These Cases are Bad

The truth is that because the victims are uncooperative, these arrests can go nowhere.

The article quotes:

WNYC first asked [Chief ADA Odalys] Alonso in late 2011 why her office has the highest decline-to-prosecute rate in the city. She said it’s because her office is just more careful in the beginning about weeding out cases that don’t fly – such as an improper arrest, sloppy police paperwork or weak evidence. . . . Almost half of all the cases dropped by her office were thrown out because the victim didn’t cooperate.

The article focuses on the 24-hour rule and how that is not enough time. What matters is the level of cooperation of the witnesses. No rule is written in stone and prosecutor discretion allows the office to wait longer if the need arises. Prosecutorial discretion also allows the cases to be brought back later if circumstances arise.

The second part of the article, focuses on the “stop snitchin’” attitude prevalent in places like the Bronx, but it does not change the DA’s responsibility to prosecute only those cases with merit. Even those cases mentioned in the article have victims that are not cooperating. Chang argues that since other DA’s press charges that they know will eventually be dismissed, the Bronx should do it as well. If the charges cannot “stick,” they should not be brought in the first place.

District Attorney Robert Johnson is right to focus on the cases that can be proven. It is only be trying those cases that the office can demonstrate its commitment to justice. It is that commitment and its demonstration that can end the stop snitchin’ culture. When the guilty get punished with the help of the community, the community sees that the district attorney’s offices, the police, and the people are all on the same side.

Prosecuting bad cases only undermines the authority of the law. The interests of justice demand that prosecutors exercise their discretion and decline or dismiss those cases that cannot be proven.


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