Tom Suozzi offers oversimplified critique of Manhattan DA’s prosecution policy

Manhattan District Attorney Alvin Bragg attracted attention, including criticism, for implementing new prosecutorial policies shortly after taking office Jan. 1. Critics perceived a memo by Bragg as laying out policies that would treat some cases too lightly, such as those involving resisting arrest and armed robbery. 

A Democrat running for governor of New York, Rep. Tom Suozzi, was one of those taking a shot at Bragg, a fellow Democrat. Suozzi posted a campaign advertisement to his Twitter account on Jan. 21 that featured a tough-on-crime message.

"The Manhattan DA is actually proposing to downgrade armed robbery to a misdemeanor, and to stop prosecuting resisting arrest," Suozzi’s ad said.

However, the reality is more complicated than that. In addition, shortly after Suozzi’s ad stopped running, Bragg released a new memo clarifying his policies.

In a Jan. 3 memo, Bragg said his office would increase its emphasis on both "diversion" and "declination."

It defined diversion 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." It defined declination as a decision not to prosecute a case after an arrest was made. 

Bragg argued that investing in alternatives to incarceration would reduce recidivism and allow his office’s resources to be dedicated to the most serious, and often violent, crimes. Reducing the prosecution of nonviolent offenses would disproportionately benefit people of color.

In the memo, Bragg said a robbery that might otherwise qualify as a felony should be prosecuted as a misdemeanor "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." 

The memo also said that resisting arrest would not be prosecuted by his office unless accompanied by another charge not included on the list of offenses the office was generally declining to prosecute. 

The list of cases the office wouldn’t be prosecuting included marijuana misdemeanors, including selling more than three ounces; not paying a public transportation fare; trespassing, except a fourth-degree stalking charge; certain cases of obstructing governmental administration; and prostitution.

Suozzi’s advertisement summarized these changes without adding important nuance.

Under Bragg’s memo, not all armed robberies would be downgraded to misdemeanors, just those determined not to "create a genuine risk of physical harm."

And under the memo, resisting arrest would continue to be prosecuted if it accompanied another prosecuted crime.

The Jan. 3 memo drew criticism from residents, police, and some politicians; they argued that Bragg’s insistence on downplaying the role of incarceration made streets less safe and left police vulnerable. 

Criticism intensified after news reports of a case that Bragg’s office prosecuted as a misdemeanor. The suspect was alleged to have stolen about $2,000 worth of cold medicine from a drug store while wielding a pocket knife and threatening a manager. It was the man’s 39th arrest.

Critics said that if the case had been heard two weeks earlier – under the previous prosecutorial policies – it would have been tried as robbery in the first degree, a felony.

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Later, when a gunman fatally shot two New York City policemen on Jan. 21, the wife of one of the officers used the funeral as a platform to criticize Bragg. 

Under increasing pressure over his office policies, Bragg on Feb. 4 issued an updated memo, acknowledging that his Jan. 3 memo had become "a source of confusion, rather than clarity."

The new memo addressed both the prosecution of armed robberies and of resisting arrest.

"A commercial robbery with a gun will be charged as a felony, whether or not the gun is operable, loaded, or a realistic imitation," the new memo said. "A commercial robbery at knifepoint, or by other weapon that creates a risk of physical harm, will be charged as a felony. In retail thefts that do not involve a risk of physical harm, the office will continue to assess the charges based on all of the aggravating and mitigating circumstances presented."

As for resisting arrest, the memo said, "Violence against police officers will not be tolerated," the updated memo says. "We will prosecute any person who harms or attempts to harm a police officer."

A spokeswoman for Suozzi said their ad campaign ended Feb. 2, two days before Bragg issued the updated memo. The advertisement remained on Suozzi’s official Twitter account as of March 16. Because the ad aired before Bragg updated his policies, we will only consider its description of the initial policies for our Truth-O-Meter rating. 

"The fact is that the Manhattan district attorney put out a ‘day one’ memo stating that his office would not prosecute some crimes, including some armed robberies and resisting arrest, and the Suozzi campaign aired an ad highlighting Bragg’s new policies," said Kim Devlin, a senior advisor to the Suozzi campaign, told PolitiFact New York. 

Suozzi’s ad said, "The Manhattan DA is actually proposing to downgrade armed robbery to a misdemeanor, and to stop prosecuting resisting arrest."

Suozzi was referencing Bragg’s initial announcement of new policies on prosecuting, or declining to prosecute, certain offenses.

Bragg did lay out changes to his office’s policy on prosecuting armed robberies and resisting arrest in his initial memo. However, Bragg did not say his office would refuse to prosecute these crimes entirely; he offered a range of exceptions that would allow both offenses to be prosecuted as felonies in certain circumstances. Suozzi’s ad did not reflect this nuance.

We rate the statement Half True.