Richard Aborn: A Progressive Running for Manhattan District Attorney
For the first time in 34 years, Manhattan will elect a new District Attorney. For decades, the office has been run by District Attorney Robert Morgenthau, who at 90, is stepping down. There are three Democrats competing to replace him in a primary that will be held September 15. With no Republicans running, the winner of the primary will get the job. The candidates are: Richard Aborn, Cyrus Vance and Leslie Crocker Snyder, each of whom worked as prosecutors in Morgenthau’s office for varying periods of time.
Once considered the “dark horse” in the primary, Richard Aborn has been gaining ground against his opponents. The race seems to be wide open. As one political consultant puts it, Aborn has developed into "a real contender." Of the three candidates, he’s claiming the mantle of “most progressive.” He’s been endorsed by New York’s Association of Legal Aid Attorneys, Congressman Jerrold Nadler and LA Police Chief Bill Bratton. The tagline on his website is “Proven Crimefighter, True Progressive.”
The issues section of Aborn’s website states his position on everything from juvenile justice reform, wrongful convictions, drug law reform and LGBT rights, to violent crime, gun control, white collar crime, terrorism and the death penalty. As to concrete plans, here are his position papers on wrongful convictions and juvenile justice reform. You can read more about the contrast between the candidates in this New York Times recap of their recent debate.
Last week, I interviewed Richard Aborn by telephone for just over an hour. He knows I’m a partisan criminal defense lawyer, looking to protect the rights of the accused. I had a lot of questions. I liked some, but not all, of his answers. My conclusion: On many important issues, Aborn really is progressive. Even better, he’s already laid out concrete plans for implementing reforms. Here’s what I learned from the interview:
His Overall Philosophy:
We have to change from a reactive to a preventive model of criminal justice. We need to get people out of jail. Alternatives to prison for non-violent offenders, including drug and mental health treatment and vocational training, will reduce recidivism and increase public safety.“First and second-time non-violent offenders deserve an opportunity to rebuild their lives.” These offenders need to be identified early, at the original interaction with a district attorney. There needs to be targeted intervention, tailored to the individual offender, not “one size fits all” justice.
The Death Penalty:
Aborn is a strong opponent of the death penalty. While New York does not have a death penalty, he says that if the legislature tries to restore it, he will lead a fight against it.
Aborn has given a lot of thought to issues surrounding wrongful convictions. Assistant DA's will be encouraged to come forward if they believe the wrong person is charged. “Every case will begin with the question, ‘Do I have the right person?’”
He will require mandatory taping of custodial interrogations of those accused of violent crimes. All eyewitness identification procedures will be conducted in a double-blind and sequential manner, with the appropriate cautionary instructions provided to the witness. (In a double-blind procedure, neither the witness nor the test administrator knows the identity of the suspect. In a sequential procedure, the witness views suspects one at a time, rather than in a group.) Training will be developed and provided to prosecutors to assist them in recognizing factors leading to false confessions.
Aborn supports making DNA testing available to inmates with plausible claims of innocence, if a DNA sample exists, regardless of whether they pleaded guilty or were convicted at trial. If the sample is available, the testing should be done as fast as possible.
Aborn, who served on the NYS Bar Association Task Force on Wrongful Convictions, emphasizes the need to provide financial assistance and support services to the wrongly convicted. They should receive financial assistance immediately upon release from prison to help them get back on their feet. At a minimum, they should leave prison with the same support services provided to those being released on parole, including housing, medical and mental health services and vocational training. (Currently, the wrongfully convicted leave prison with nothing.)
He supports a law mandating minimum compensation for wrongfully convicted persons. He also supports expunging criminal records of the wrongfully convicted, including records of arrest, conviction and sentencing.
While Aborn led the fight to expand the use of DNA testing in 2006 to include all persons convicted of a crime, he says he does not support DNA testing for everyone upon arrest.
Aborn received the endorsement of at least one wrongfully convicted person, Jeffrey Deskovic, even after one of his opponents, Leslie Crocker Snyder, said Deskovic was her inspiration for changing her mind about supporting the death penalty.
Police and Prosecutorial Misconduct:
Aborn will create an “Office of Professional Responsibility” (OPR), similar to the one that exists within the Department of Justice. Cases will be tracked by OPR to flag errors and identify any misconduct. Allegations of prosecutorial misconduct will be investigated quickly and completely. Wrongful convictions will be studied to identify their cause and establish best practices to avoid re-occurrence. Guidelines will be established and safeguards implemented to prevent mistakes from occurring in the first place. When police misconduct is identified, it will be reported both to the DA and to relevant commanders in the Police Department.
In addition to addressing past allegations, the OPR will be proactive, providing training to prosecutors. The training topics will include compliance with professional ethics and exercise of prosecutorial discretion.
The OPR will also handle complaints against prosecutors filed by members of the public. Its website will provide clear instructions on how to file a complaint. To increase transparency, the OPR will publish regular reports which will be posted to the DA’s website. Case reviews will be shared with the police department.
Like wrongful convictions, this is an area where Aborn clearly shines. New York is one of only two states that treats 15 year olds as adults. His proposals include: focusing on early intervention for at-risk youth by providing mental health treatment, increased after-school programs, life-skills training and other measures aimed at preventing crime and reducing recidivism; raising the age of juveniles eligible to be charged as adults and keeping juveniles charged with non-violent crimes out of adult court and prisons entirely. He recognizes the danger children face by being placed in adult facilities and that psychological treatment is a greater deterrence to youth crime than incarceration. He also understands that children and adolescents lack the neurological capacity to fully understand the consequences of their actions and the ability to control their impulses. He will utilize “peer courts” rather than family courts and criminal courts for non-violent, minor offenses, and restorative justice principles in sentencing for minor crimes.
Drug Law Reform:
Aborn supports repeal of the Rockefeller drug laws, stating, "Drug kingpins deserve prison. First and second-time non-violent offenders deserve an opportunity to rebuild their lives." He also supports medical marijuana.
Indigent Defense and Trials:
There should be no trial by ambush and no trials by overburdened indigent defense lawyers. “I take the second word in criminal justice very seriously.” He’s a strong supporter of the Sixth Amendment right to counsel. Public defenders must not be burdened with excessive case loads. This leaves them with insufficient time to spend with each client and on each case. They should be paid more money so that more qualified lawyers are attracted to the job.
Misdemeanor Cases and Quality of Life Crimes:
Aborn believes arresting people for quality of life crimes is okay. "A trip to misdemeanor court can be an important experience." What’s not necessary is requiring a conviction and jail sentence in every case. Providing an incentive to succeed is a better idea. He praised a model used in a nearby county where all those charged with a misdemeanor go to a specific building. The courtroom is on the first floor. Floors 2 through 5 are occupied by social service agencies, including one floor dedicated to providing continuity of services. The offender goes from the courtroom up through the various floors, so by the time he leaves that day, he’s been evaluated and matched with a program which begins right away and his progress is monitored for its duration.
Replicating the Community Policing Model
DA’s will be assigned to particular neighborhoods and get out in the community, replicating the community policing model. They will partner with community groups. Aborn believes this will create safe harbors protecting those who tend to fear coming forward to law enforcement, including immigrants, battered women, and members of the LGBT community.
Using Technology to Create Data Modules
Aborn says a big problem is the lack of data modules to match defendants to particular treatment and social programs. Data needs to be collected on which programs work and which are ineffective. His recently released plan (PreventStat) is modeled on CompStat and has been endorsed by Bill Bratton. He promises to implement the technology necessary to obtain this data.
As I mentioned at the beginning, there are some areas where Aborn could be more progressive. Among them:
Charging Juveniles as Adults:
Will he agree to allow neutral judges rather than prosecutors to make decisions whether to charge juveniles as adults? Not in the case of violent or serious crimes. He prefers the DA’s office and “skilled prosecutors” make the decision when a serious or violent crime is at issue. He has no objection to neutral judges making the call on other crimes.
How would he classify a juvenile accused in a residential burglary where weapons were possessed but no one was injured? He puts that in the violent crime category, because “it’s the intent, not the result” that matters most.
Life Sentences for Juveniles:
New York doesn’t have a law providing for life without parole for juveniles charged as adults. No juveniles in the state are serving life without parole. But they can get a sentence of up to life for various crimes. According to a recent report by the Lyndon B. Johnson School of Public Affairs at the University of Texas (Austin), every state allows juveniles to be tried as adults or some crimes, and more than 20 states permit pre-adolescent children as young as 7 to be tried in adult courts.
What is Aborn's position on when juveniles serving life with parole or double-digit sentences for violent crimes should be eligible to have their sentences reviewed for early release? He thinks courts should set a minimum sentence, e.g., 15 to life, 20 to life, 25 to life, and they would eligible for release after serving 85% of the minimum.
On Gun Control:
Curbing the use of illegal firearms is clearly one of Aborn’s greatest passions. As a homicide DA, he became convinced that illegal guns were a huge cause of deaths. He left the DA’s office in large part to become involved in the national effort to ban illegal handguns. He believed that the way to cut down on illegal weapons was through a national law and he served as President of Handgun Control, Inc. (now the Brady Campaign). He was the principal strategist behind passage of the Brady Bill. He also helped pass a law that provides that any gun sold in New York must be fired first and its casing digitized and entered into a database.
He insists he has nothing against the lawful possession of firearms. His goal is to break up the market for their illegal distribution.
Yet, he supports the New York law that requires a three year mandatory minimum sentence for possessing a loaded firearm in a place other than one’s home or business, even if no one is injured and the person does not intend to harm another person. (While the legislature was considering the bill, he sat on the Law Enforcement Council that endorsed the law and he still supports it.)
On the use of testimony of an accomplice who is receiving leniency for own misdeeds in exchange for cooperating against a partner in crime: Would he support a policy requiring corroboration of accomplice testimony by non-accomplice testimony or other independent evidence before a grand jury could find probable cause or a jury could find proof beyond a reasonable doubt? Aborn says "No, it’s not necessary." He’s in favor of disclosure of the terms of the cooperation deal (which he acknowledges is already mandated by law).
Fully Informed Juries
Would he object to juries being informed when a defendant is facing a mandatory minimum sentence if convicted? Yes, because juries are supposed to be independent and objective arbiters of fact and it would alter the role of the jury.
Overuse of Life Sentences
Are there too many people serving life sentences? A new report by the Sentencing Project finds that 140,000 inmates nationwide are serving life sentences. 2/3 of them are African American or Latino. In New York, 1 in 6 inmates is serving life. 83.7% of these inmates are minorities while 16.3% are white. The full report is here.
Aborn says it’s an impossible question to answer without knowing the specific crimes for which they were sentenced. He doesn’t think life without parole should be limited to crimes in which a death occurred. For example, he supports life without parole for very heavy narcotics kingpins and serial offenders like rapists.
Trial vs. Management Experience
One other issue has emerged in the race: The distinction between trial experience and management experience and the importance of each to the job. How does Aborn respond to the claim that his opponents have greater trial experience and that this is a handicap for him?
Aborn says it is not the job of the District Attorney of a major city to try cases. It’s his or her job to manage the office, supervise hiring, set policy and budget and ensure the office is performing at peak levels. It’s also the DA’s job to be the external spokesperson for the office on cutting edge issues and to serve as a “bull horn” to the legislature for needed changes.
Only 2% of the cases that come before the DA ever go to trial. The last time Morgenthau appeared in court was in the 1980's, and that was to argue an appellate decision.
Aborn says he has the most management experience. He ran the nationwide organization for Handgun Control, Inc. (now the Brady Campaign.) He’s the managing partner of Constantine Cannon, a firm with offices in NY and DC, that employs more than 60 full time lawyers and up to 180 counsel retained for special cases. He’s responsible for the firm’s budgeting. He manages the technology used by the firm in complex litigation.
Is Aborn Really Progressive?
As a defense lawyer, of course I would prefer to hand the “progressive” mantle to a politician who agrees there should be no mandatory minimum sentences because every sentence needs to be individualized, based not just on the seriousness of the crime but the history and characteristics of the offender; that juveniles should stay in the juvenile system but if the law provides for adult charging, neutral judges, rather than prosecutors should make the decision; juveniles serving long sentences, particularly life sentences, should be eligible for regular sentence reviews and early release; we should seek the imposition of fewer sentences of life without parole for adults and abolish them for juveniles; that many misdemeanors can be handled by civil citations; we should not arrest for quality of life crimes; corroboration should be required for accomplice testimony at both the grand jury and trial stages; and juries should be informed if a conviction requires a mandatory minimum sentence.
However, I doubt there’s a candidate for District Attorney anywhere in the country who holds all these views. If they did, I suspect they wouldn’t be running for District Attorney, they’d be running for the legislature or applying to head up a public defender’s office.
So, let’s ask a different question: Will Richard Aborn's progressive-minded changes to the DA’s office result in positive and concrete reforms which will reverberate throughout the criminal justice system in Manhattan? The answer is yes.
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