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I've seen a lot of public defenders dunking on this tweet, and with good reason. The policy @TahanieNYC rolled out today has some good elements, but it backtracks from commitments she's made. @shaunking's hyperbole about it being the best plan ever is out of touch with reality. https://twitter.com/shaunking/status/1329192792522973185
Some background: when cops arrest someone they fill out some charges in a form, but it doesn't mean anything. In NY it's prosecutors who choose which crimes, if any, to charge someone with. That usually happens at the Early Case Assessment Bureau (ECAB) prior to arraignment.
If ECAB chooses to charge you with a crime, it can't be undone. It may hang over you for months or years. Even if it's dismissed or you're acquitted, it'll be on your rap sheet forever. So you'd rather get rid of a charge the minute before arraignment than the minute after.
. @TahanieNYC's diversion program is based out of ECAB, which means it would prevent people from being charged in the first place...or would it? The language on the website is unclear & talks about declining (pre-charge) or dismissing (which sounds like post-charge).
More importantly, the new diversion policy seems to back away from promises Aboushi has made elsewhere to "never prosecute any recreational drug use or possession." This is increasingly a necessary promise for anyone running as a progressive prosecutor. https://www.tahanieforda.com/vision
Aboushi's diversion policy categorizes drug possession offenses as level 1 or, for higher quantities, level 2 or 3, but it doesn't promise not to prosecute them. Instead there's a "presumption" that level 1 offenses will be declined/dismissed. For levels 2 & 3 it's worse:
Aboushi will still prosecute you for a level 2 or 3 drug possession offense unless you "avoid rearrest for a felony offense for six months" (level 2) or complete whatever programming the DA's office orders you to do (level 3).
Remember how I said cops fill out some charges in a form when they arrest you but it's meaningless? That's what your diversion would rest on. Cops arrest the wrong people, pick out the wrong charges, & sometimes just make things up. An arrest doesn't involve proof.
An arrest is not a reliable indicator of anything & shouldn't be used as a substitute for a conviction. If you're arrested by a cop who claims you committed a felony, @TahanieNYC will prosecute you for drug possession despite claiming she'd "never prosecute" that offense.
There are a number of other level 1 offenses that have only a "presumption" of nonprosecution: loitering, prostitution, resisting arrest, refusing to aid a police officer, possession of graffiti instruments, fortune telling, etc. But why should these ever be prosecuted?
The only answer I can imagine is something like "what if someone's loitering while also committing murder," but in that case you can just charge them with murder! I cannot imagine an example of loitering so egregious as to require prosecution for that specific charge.
. @TahanieNYC has previously pledged to decline to prosecute crimes of poverty & sex work. But her diversion plan explicitly identifies a number of offenses at levels 1, 2, & 3 as "crimes of poverty," plus prostitution, & leaves the door open to prosecuting them.
While @TahanieNYC apparently backs away from her earlier promises, two other #ManhattanDA candidates reaffirmed their commitment tonight to never prosecute drug possession. Both @elizaorlins & @janosmarton have also promised not to prosecute sex work or crimes of poverty.
As for the rest of the plan, I'm glad to see @TahanieNYC supports diverting charges like low-level assault & burglary by default, but the devil is in the details & this program still places a lot of power over people's lives in the hands of prosecutors. https://twitter.com/Michelle_Mc_G/status/1329240776178589696?s=20
