This Week in Allegedly: Flamethrower Guy and Criminal Justice Reform

Hi there!

This week’s New York City crime and courts news is all over the place, as per usual. For starters: There’s an arrest involving a flamethrower. The Manhattan D.A.’s race, meanwhile, is heating up with several high-profile endorsements—and we still don’t even know if Manhattan District Attorney Cy Vance Jr. is running for re-election. More on that in The Allegedly List. For The Allegedly Original, we looked at how Joe Biden’s administration could impact criminal justice in New York City.  

And with that, happy reading!

The Allegedly List

Former Manhattan U.S. Attorney Preet Bharara on Tuesday endorsed Alvin Bragg, his former staffer, in the Manhattan District Attorney’s race. “It’s hard for me to imagine anyone better prepared to be Manhattan’s next District Attorney or with the qualities and perspective Alvin will bring to the job,” Bharara reportedly commented. In Bharara’s office, Bragg helmed a section that pursued cases on police-involved killings. Via New York Daily News

That’s not all on the Manhattan D.A. race: several Harvey Weinstein accusers, including one woman who testified against him at trial, are backing ex-prosecutor Lucy Lang to replace Vance. Lang, who worked in the Manhattan D.A.’s office, wants “consent” to be defined under New York State penal code and has promised to launch a sex crimes division that emphasizes justice for survivors. Vance has gotten a lot of flak for his office’s handling of sex crimes involving powerful men, including a decision not to prosecute Weinstein in 2015 and advocating for Jeffrey Epstein’s classification as a low-risk sex offender. Via New York Post 

An Army veteran and mailman who was behind bars 25 years for a murder he didn’t commit saw a Queens judge overturn his conviction Thursday. Ernest “Jaythan” Kendrick, 62, reportedly said in court: “I’m very, very happy today because I never thought this would happen—although I hoped and wished it would.” Kendrick also said: “No one really understands what it is to be in prison when you’re innocent. You know you’re innocent and you’re behind that wall. Civilization is not there.” Via New York Post

Remember that flamethrower guy, who was shooting fire from the roof of a Brooklyn bus? As it turns out, the alleged identity of said flamethrower guy is Brooklyn rapper Dupree G.O.D. He turned himself in to cops on Wednesday afternoon, several days after viral video of the fiery incident surfaced. Via Vulture

Harvey Weinstein does not have Covid-19 again. While he was reported to have coronavirus this spring, TMZ said earlier this week that he was severely ill, and a suspected Covid-19 case. Weinstein’s reps announced Thursday that his coronavirus test came back negative, which makes sense, considering the infinitesimally slim chance of getting Covid-19 twice. Via Vulture

Montoun Hart, who was acquitted in the 1997 slaying of a Bronx school teacher, was arrested for alleged drug trafficking. Prosecutors said that two undercover cops posed as customers, ultimately buying 44 weapons from him.  The Brooklyn D.A.’s office said that Hart’s alleged gun-trafficking ring sold guns originating from Virginia and South Carolina. Via New York Daily News

A fight club in the Bronx, apparently called “Rumble in the Bronx,” was busted by city sheriff’s deputies Saturday night. More than 200 people attended the unlicensed brawl, many of which weren’t wearing masks, officials said. Authorities arrested 10 people on charges such as unlawful assembly and participating in a prohibited combative sport. Via New York Times

The NYPD has overwhelmingly “reduced or rejected recommendations for stiff discipline” made by the Civilian Complaint Review Board, The New York Times reported. Data show that in approximately 71% of 6,900 CCRB-reviewed misconduct charges in the last 20 years where board members recommended significant discipline such as suspension or dismissal, the NYPD didn’t follow these recs. “In case after case, the records show that the Police Department often used its power over the disciplinary process to nullify the review board’s determination that serious misconduct had occurred and that the stiffest punishment should be meted out,” the newspaper said. Via New York Times

The Allegedly Original 

How Joe Biden’s Presidency Could Impact Criminal Justice in New York

By Victoria Bekiempis

President-elect Joe Biden has announced lots of plans for reforming the criminal justice system, including addressing deep-rooted problems in American policing. 

Among them: reducing the number of people behind bars, ending racial disparities and in doing so, foster “fair sentences,” and using the Department of Justice to tackle “systemic police misconduct.” He also wants to get rid of the death penalty, hoping to pass federal legislation and “incentivize states to follow the federal government’s example.” 

Of course Biden, like any president, isn’t in a position to unilaterally reform the criminal justice system with the swipe of a pen. Biden has to work with Congress. And if the Senate remains under G.O.P. control, that means Biden and the Democrats would have a lot of work ahead of them to get anything done. (Given that Covid-19 relief can’t even get meaningful bipartisan support, the chances of sweeping criminal justice reform with a Republican senate seem more than a bit slim.)

Perhaps most importantly, a lot of reforms would have to happen at the state and local level. As The Marshall Project points out, there are about 18,000 law enforcement agencies across the U.S., “all with their own rules and regulations.” So, something like Biden’s suggestion to bar chokeholds and no-knock raids wouldn’t be up to him on the local level. 

There’s still a lot Biden can accomplish. Allegedly spoke with several criminal justice veterans to get more info on what he can accomplish and how that affects New York City.  

There are a whole lot of things that, ideally, would get done legislatively,” said David Patton, executive director and attorney-in-chief of the Federal Defenders of New York, explaining: “That obviously takes a lot of time.”

“What the administration can do most directly, from day one, is [put] people in positions that have a lot of influence over how things work on a day-to-day basis in federal courts, starting with the attorney general—so making sure that he appoints someone as the attorney general who’s committed to criminal justice reform, and would issue policies regarding charging and sentencing, and disclosure of evidence, and positions on bail that are all consistent with reform proposals that the president signed off on during the campaign,” he said. “Here in New York, [it’s] who to appoint as U.S. Attorney for the Southern and Eastern Districts of New York.”

Typically, when the home state senator is the same party as the president, this senator has a lot of say in these appointees.  In New York, appointees “have effectively been selected by Sen. [Chuck] Schumer, and so part of what the Biden administration will need to do is make sure that they’re on the same page with Sen. Schumer about putting in place a real reformer.” 

Schumer’s office did not comment when contacted by Allegedly.

“Every Department of Justice puts forward certain policies as when to charge things and when not to,” Patton also said.

“Even with changes in policy and guidance from main justice, individual U.S. attorneys still have a great deal of discretion about who they charge and what they charge, and how they go about litigating a case once they’ve charged it,” he said. 

Take federal mandatory minimum sentences, for example. Even if they don’t get reformed legislatively, prosecutors have “an enormous amount of discretion” that allows them to make cases that wouldn’t result in mandatory minimums.  

With drug offenses, mandatory minimums are triggered by different amounts of weight that are involved in said offenses. 

“Weight oftentimes is really a poor proxy for culpability,” Patton said. “Somebody can have a very minor role in a drug conspiracy that involves a lot of drugs.”

So, prosecutors could elect to pursue these offenses in a way that doesn’t prompt mandatory minimums. 

“Someone can be charged in a way that takes into account the whole spectrum of issues that we hope could be taken to account in sentencing,” he said, “and it gives judges the discretion to consider those things.”

Rebecca Roiphe, professor of law at New York Law School and former Manhattan prosecutor, said that the U.S. Department of Justice can monitor abuses in law enforcement agencies if there are concerns about civil rights. The feds can investigate abuses and create a report, which can lead to a settlement and the installation of a monitor, who would oversee the settlement’s enforcement.  

This has an impact that exceeds local prosecution of rogue law enforcement officers. While local prosecutors can go after cops directly involved in misconduct, broader Department of Justice involvement can tackle patterns of abuse, potentially reforming police departments. 

(This hasn’t happened with the New York Police Department. As Ali Winston reported in The New York Review of Books, the NYPD hasn’t been subject to a federal “pattern-and-practice investigation and concurrent federal oversight” despite a litany of state-level misconduct investigations and civil rights lawsuits.) 

So how, exactly, would a Biden administration ramp up Department of Justice involvement? 

If Biden prioritizes civil rights in a way that President Donald Trump has not, situations where money is earmarked for certain things can create investigations and infrastructure for them, Roiphe explained. 

Under Biden, the Department of Justice’s Civil Rights Division,  which has been extensively hamstrung under Trump, will likely be funded in an entirely different way, giving it more power.

David M. Kennedy, a professor of criminal justice at John Jay College of Criminal Justice in New York City and director of the National Network for Safe Communities at John Jay, similarly spoke to the role of prioritization in an administration’s handling of justice issues.

“We saw police violence, and police misbehavior more broadly, as a real focus of the two Obama-Biden administrations, [but] very much not a focus in the Trump administration,” Kennedy said. “And I think there's every likelihood it will become a focus again in this administration.”

Kennedy pointed to Biden and Vice President-Elect Kamala Harris’ extensive work with criminal justice. Biden has long made criminal justice and policing issues a priority; Harris worked as District Attorney of San Francisco and Attorney General of California.

This will be The White House with the “greatest concentration” of criminal justice experience in American history, Kennedy said. 

“That's pretty unprecedented—to have that level of experience and commitment at the top of a federal administration, so I think it's very likely these issues will get a lot of attention.”

An administration’s budget could impact policing and other aspects of criminal justice policy, prioritizing investments into things such as drug treatment and homelessness, for example. 

“There are pretty important budget powers here,” he said.

Allegedly reached out to Biden’s transition team for comment. They did not respond.