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.

The Manhattan District Attorney’s Office is huge. It prosecutes 100,000 cases a year. It employs 500 Assistant District Attorneys and 700 staff members. [More...]

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.

Wrongful Convictions:

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.

Juvenile Justice

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.)

Accomplice Testimony:

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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    Thanks Jeralyn (none / 0) (#1)
    by squeaky on Mon Aug 10, 2009 at 12:28:17 AM EST
    I asked about the race in the last open thread, because it appears that all three contenders are racing to gain support of progressives.

    They all seem to have the same platform. I will be meeting Leslie Crocker Snyder tomorrow night at my local pub. Great to have this post so that I can grill her with specific questions about how she would be more progressive than Aborn.

    Great, I'll be interested to hear (none / 0) (#2)
    by Jeralyn on Mon Aug 10, 2009 at 12:32:36 AM EST
    her answers.

    No Show (none / 0) (#11)
    by squeaky on Tue Aug 11, 2009 at 09:23:22 AM EST
    I went with questions in hand and she never showed up. Not sure what happened. Maybe her host, who had spent the day at the Pub's annual golf outing, had a few too many, which seems to be par for the course for that particular event..  

    Be sure to ask her about (none / 0) (#6)
    by scribe on Mon Aug 10, 2009 at 09:26:54 AM EST
    her seeming penchant for holding fundraisers in bars, especially the one she held in a bar that had been shut down for all the shenanigans that had been going on there.

    More seriously, while I think Ahorn would make a fine Manhattan DA and his policy proposals are, by and large (save for the stupid gun control fetishism*), sensible, IMHO he has no realistic chance of winning.

    The race is down to Vance and Crocker-Snyder and, as yesterday's NYDN editorial endorsing Vance shows, Crocker-Snyder has squandered whatever goodwill she had built over the years by her repeated flip-flopping on hot-button issues.  Once, while a judge, she wanted to be the one who gave a particular convicted person the needle, then she moderated her position, then went back, then found a new concern for the wrongly-convicted innocent.  Then there was her criticizing Morgenthau for his financial frauds units.  (Darling of Wall Street fraudsters, she was then.)  The only principle to be found in her is that of winning her next election.

    The problem with Ahorn is not in his positions.  As TL notes, his positions indicate that anywhere other than NYC he would be either running for State Assembly or to head the public defender's office b/c he is entirely too liberal to bea prosecutor elsewhere.  The problem with Ahron is that he is the insurgent in a three-candidate race and, as the insurgent is also more likely to take votes from Vance than from Crocker-Snyder.  She has the authoritarian/thug/cop vote and neither Vance nor Ahorn will ever get any of that.  With Ahorn taking votes from Vance, it is entirely likely that Crocker-Snyder will win more by the two "more" "progressive" candidates devouring each other's support than by her beinga superior candidate or office-holder.

    And if you think that won't happen - that's exactly what happened earlier this spring across the river from NYC, in Hoboken.  Two "better on-the-issues" candidates (the big issue being overdevelopment) ate each other up in the initial election, resulting in a runoff. In the runoff, the machine candidate won and (as many predicted) was marched off in handcuffs within a month of taking office. (The big surprise was the speed of election-to-arrest.)  Had the weaker, insurgent candidate done the right thing and backed out, there would not have been any need for a runoff and the machine candidate would not have won.
    *  This fetishism was on display most recently in an email I got from the Corzine campaign, trumpeting his signing a bill which will limit New Jerseyans to buying one handgun a month.  (BTW, New Jersey's state Constitution does not protect a right to bear arms)  It's an utterly useless bill, but now it is the law.  He put it ahead of a bunch of other more-pressing issues in bills on his desk for sigature.  Foreclosure relief, first among them. In signing this particular bill, Corzine also validated a couple years' worth of NRA propaganda.  About February 08, the NRA openly was pushpolling in NJ and elsewhere, asking whether you thought "liberal Barack Obama would impose a quota on how many guns you could buy".  I noted that push-polling then, and now see Corzine walking right into it.


    Minor Point (none / 0) (#5)
    by nyjets on Mon Aug 10, 2009 at 07:23:35 AM EST
     "(Disclosure: I support gun rights and oppose almost all gun control measures, including the Brady Bill.) "

    A agreed and disagreed with various points that you made but this line stood out.

    I am not opposed to people owning guns. But some gun control measures are necessary. Not everyone should be allowed to own a gun. Some felons for example should not be allowed to own a gun. Some people with mental problems should not own a gun.

    Furthermore, there should be ways to license guns and and people who are licensed to carry guns. Honestly, there should be reasonable limits to who carries a gun and where you carry the gun.

    I am not against the 2nd amendment BTW. What I am saying is that reasonalbe gun control laws are necessary.

    many people feel the way you do (none / 0) (#9)
    by Jeralyn on Mon Aug 10, 2009 at 09:53:35 AM EST
    But I have written so many times about second amendment rights that I thought I should add that. Maybe it wasn't necessary, I didn't mean for it to stand out.

    and I just removed it (none / 0) (#10)
    by Jeralyn on Mon Aug 10, 2009 at 09:58:13 AM EST
    from the article. Thanks for pointing out that it "stuck out." That wasn't my intent.

    I live in NYC and will vote Aborn (none / 0) (#7)
    by lilybart on Mon Aug 10, 2009 at 09:39:11 AM EST
    I got a flyer in the mail and actually read it!! As a DEM in NYC who always votes straight DEM ticket (except for Bloomberg) and I told my husband, we are voting for him.

    thanks for highlighing him here

    by saying I vote straight Dem ticket (none / 0) (#8)
    by lilybart on Mon Aug 10, 2009 at 09:40:31 AM EST
    I meant that I rarely read anything that comes in because I just pull the Dem levers and primaries are not usually that contested.

    you really oughtta read ... (none / 0) (#12)
    by vacant on Tue Aug 11, 2009 at 05:05:57 PM EST
    if you're interested in getting better democrats in office, you really should be voting in the primaries.  you might clearly identify with the democratic party on national issues -- as clearly most new yorkers and manhattanites do -- but when folks assume that going into the voting booth on the day of the general election and pulling a straight democratic ticket is enough participation for them, the myriad evils of machine politics take control.  (i would venture to guess that the identification of the democratic party with rampant corruption at the local level in urban areas probably costs democrats in national elections some non-negligible number of votes.)  contrary to what you say, in new york city, because everyone is a democrat, the intra party primaries is where the action is -- that's the election that matters.