A Powerful D.A. Fought New York’s Reforms. His Challenger Wants to Push Them Further.
Matt Toporowski, up against the former head of the DA’s association, says he would “walk down the halls with advocates and lobby for progressive reform.”
Daniel Nichanian, | April 30, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
A Q&A with Matt Toporowski, who is running for DA in Albany against the former head of the prosecutors’ association to “walk down the [legislature’s] halls with advocates and lobby for progressive reform.”
In a brief stretch from 2018 to 2019, New York shed its reputation as one of the states most friendly to prosecutors. It created the nation’s first independent commission to investigate prosecutorial conduct, and it adopted a slate of reforms improving defendants’ pretrial rights.
But a judge blocked this commission in January. And lawmakers rolled back the pretrial reforms last month, loosening new requirements that prosecutors promptly share material with the defense, and expanding the circumstances when someone can be detained pretrial.
Throughout this rollercoaster, district attorneys fought doggedly against new constraints, led by the District Attorneys Association of New York (DAASNY), the group that lobbies in the name of state prosecutors, and by Albany County DA David Soares, who presided over DAASNY last year.
Soares sternly denounced the proposed commission as well the pretrial reforms during the legislative debates. And he kept up the pressure after their adoption; he helped file DAASNY’s lawsuit against the commission, and he advocated for the state to retreat on the pretrial reforms. In announcing his re-election bid in January, he cited these reforms’ “threats to public safety” as an impetus for seeking a fifth term.
Matt Toporowski, an Albany attorney and former prosecutor, is now challenging Soares in the Democratic primary, scheduled for June 23.
And Toporowski has taken the opposite approach on each of these issues.
In a wide-ranging Q&A with the Political Report, available below, he supported the bail and discovery reforms adopted last year. He defended the state’s embattled independent commission as essential to ensuring that “prosecutors are answering to someone.”
And he said he wanted to use the influence of the DA’s office to champion progressive change beyond those measures. A DA should “walk down the [legislature’s] halls with advocates and lobby for progressive reform,” he argued, and not partake in “fearmongering campaigns against reform.”
Last year’s pretrial changes, first: Soares has complained that they created too big a burden on law enforcement, but Toporowski describes the added work as an opportunity to reduce the volume of criminal cases. He said the police should be thinking about arresting fewer people, and that the DA’s office should decline to prosecute some lower-level charges.
Toporowski echoed those DAs who have recently laid out categories of cases they will decline to prosecute. If elected, he said, he would not charge cases involving marijuana possession, driving with a suspended license, and loitering for prostitution; he described the latter charge as a “ploy for police to interact and potentially harass certain individuals.” He added that he would expand diversion for drug-related offenses, and work to avoid incarceration over technical violations of parole and probation. That last issue resonates during the COVID-19 crisis; the first incarcerated person who died in New York was held on Rikers Island for a minor parole violation.
“To address the issue of mass incarceration, you do it on the front end with what to charge and what not to charge, and you do it on the back end with parole and probation,” Toporowski said.
He is a former prosecutor in Soares’s office, and resigned in 2015. He says his wish to resolve lower-level cases without “probation or a jail sentence” and “with an eye towards second chances” ran against an office culture that involved “punishing to punish.” He added, “I decided to run to change that culture.”
In the course of our conversation, Toporowski voiced a number of other commitments on issues that New York advocates have championed.
He said he would establish a list of police officers who have a history of misconduct and whose testimony he would not rely on, and that he would be open to making that list public, something only two New York DAs have done so far. He endorsed a proposal meant to release more older prisoners by making them eligible for parole; he added that his office would be more proactive at encouraging the parole board to grant parole applications. And he said he would not file murder charges in the aftermath of an overdose, a punitive trend among DAs.
Moreover, Toporowski said he would champion legalizing marijuana, and would back the creation of a safe injection site. Soares has also supported both of these reforms, including by writing an opinion piece calling for marijuana legalization and signing a legal brief defending the legality of safe injection site.
This year’s primary is the mirror image of the 2004 election for Albany DA, which was Soares’s first win. Then aged 34, just as Toporowski is now, Soares ousted Paul Clyne, the incumbent DA and his former boss. That campaign was defined by Soares’s reform-minded call to repeal the state’s exceedingly harsh Rockefeller drug laws.
Five years later, in 2009, New York repealed those laws, a major win for state reformers.
But the hold of tough-on-crime politics has further weakened since then, whereas the scope of reform proposals that are making it into mainstream debates have grown. In 2019, Tiffany Cabán’s bid for Queens DA spotlighted how grassroots organizing has pushed the boundaries of progressive prosecution in New York.
This year’s Albany election may have even bigger repercussions for statewide policy. “Albany is the state capital, so the DA here is heard more clearly by the legislature,” Toporowski said.
The Q&A was condensed and lightly edited for clarity.
Your opponent David Soares mentioned his opposition to New York’s 2019 pretrial reforms as a motivation for running when he announced his candidacy in January. He described them as “threats to public safety” because they will enable some “accused violent criminals [to be] released.” Last month the state rolled back part of the reforms. Let’s start with the bail reform; what is your perspective on both the 2019 law, and on your opponent’s arguments against it?
I was wowed that it finally leveled the playing field between prosecutors and defense attorneys—in terms of discovery, the ending of cash bail—that it would make things more fair in a system that has traditionally been a one-sided power structure. And so I was really in favor of these reforms. As a local defense attorney, I was excited: Many more of my clients wouldn’t be in jail pretrial, I could speak with them more often, go over the evidence with them in person, and certainly the pleas that they would be taken would be more thought out, and with the help of counsel spending more time with them. Not this practice of leveraging plea bargains because the person is sitting in jail, and without access to discovery.
The DA here was a vocal advocate, as the head of the DA association, in opposing these reforms. He participated in these fearmongering campaigns against reform. Here’s the reality: More people were just going home and then returning to court, but that’s not newsworthy. What’s newsworthy is when someone gets out on bail and they commit some crime, and then we’re saying it was because they were released. It wasn’t because of that. It’s because of whatever issues the person had: It could have been the mental health or substance abuse issues, which can be worked out better while the person is out on bail, versus in jail where there’s less services.
I think it’s a clear difference. He opposed these historic reforms. My campaign has always been supportive. I stood with the advocates over at the Capitol in support of these reforms before they were rolled back. And that’s why this is a significant race. Albany is the state capital, so the DA here is heard more clearly by the legislature. You’re a stone’s throw from the legislature; you can walk over there, you can walk down the halls with advocates and lobby for progressive reform.
So you disagree with your opponent’s view that the bail reform implemented in January threatened safety.
You’ve got to remember New York State has valued the presumption of innocence very highly since 1971. The value in our state has always been liberty pretrial, and detention the carefully limited exception. And this reform finally brought us there, it made that a reality for so many people. And to say that we’’re less safe because of this reform? These reforms were rolled back within four months of being enacted. I don’t think we have the data to show that more crime occurred. It was very soon. And it was because of these vocal law enforcement advocates, including my opponent who fearmongered about this.
Besides bail, another major 2019 reform that you mentioned concerned discovery rules: it required prosecutors to turn over evidence within 15 days. Your opponent has complained that this overwhelms prosecutors’ capacity, and that too much material would be shared due to the law. Do you agree with those complaints?
The turning over of evidence quickly is critically important to the system. This quick free flow of information means that we could resolve cases quicker, that people accused can make decisions more intelligently and quicker, or go to trial quicker. It all works together to make sure that the system is working like it should: the right to speedy trials is being respected, the right to discovery to confront the evidence of witnesses against you is all being respected. So I don’t think that it’s too quick. What I think is that it forces modernization in the DA’s office: getting the equipment that you need to digitize a lot of these documents, to get them to the defense that way, to get them from the police agencies quicker.
That’s also important because I think it’ll make the police think more critically about the discretion that they have when they’re arresting people for certain crimes that are violations, whether they want to use that discretion a little more cautiously, because they know they can’t just hand someone a ticket and walk away. They know that if they’re going to make an arrest, there’s gonna be a process behind that, they got to get information over quickly, all the documents need to be turned over, including potentially their own record of discipline or misconduct. It’s so important to have a little more critical thinking behind these discretionary points.
In terms of [the concerns over] the sharing of more information, I think that’s a result of fearmongering. I think that the DA here participates in this fearmongering: He said cases were going to be dismissed because of these laws, that they couldn’t comply, that they’d have to share victims’ information. This was all false. The reality is that the law actually said you have to turn over adequate contact information for any potential witnesses; if it’s a victim, adequate contact information can simply mean an email address, you could create a phone number through one of these companies where the phone number is not your actual phone number.
You mentioned that the added burdens of discovery laws could help rein in decisions made by the police. Does that apply to prosecutors? Reform advocates in New York have suggested that, even if the discovery reform asks prosecutors to do more, that would be good if it gets them to see that “bringing a new prosecution is no longer costless.” Do you share that perspective, and is it important to you to reduce the volume of criminal prosecutions?
I do. It all works together in terms of forcing the prosecutor, the police to make decisions more critically and whether or not to arrest or prosecute cases at all. Again it goes to how the prosecutor uses discretion. The prosecutor working diligently to turn over evidence, if it creates more work, the result is to use that discretion more critically. That’s what progressive criminal justice is about: It’s being more critical about using discretion. That turns into you don’t want to prioritize certain cases, or decline to prosecute low-level petty offenses that are either prosecuting poverty or substance abuse. There are things that we are prosecuting that are things of the past, like marijuana. It’s led to mass incarceration for specific communities, communities of color.
I’d like to dig into this point about not prosecuting some offenses. David Soares, the current DA, announced in 2018 he would stop prosecuting possession of up to 2 ounces of marijuana. Since then, other DAs have announced bigger declination policies; Rachael Rollins, in Boston, ran and won on a list of 15 lower-level charges she would not charge. Are there specific charges that you would decline to prosecute if elected DA?
Soares said he’s not going to prosecute up to class B misdemeanor possession of marijuana; that’s two ounces. We’re going to pass that and say we’re not going to prosecute misdemeanor possession of marijuana, period, which goes up to eight ounces. We’re not going to prosecute technical probation or parole violations for people testing positive for use of marijuana. Also, looking at past convictions for marijuana, and requesting some resentences or expunging those convictions. The bigger point is that legalization is coming. I would be vocal and supportive of legalization, regulation, and the reinvestment of the tax revenue: It would produce significant tax revenue, we could reinvest into the communities of color that were previously policed aggressively, our schools, our healthcare systems.
Other categories that we are looking at decline to prosecute: A lot of the loitering charges. Loitering for gambling, it’s really just policing young kids who are standing around a corner. Why are we prosecuting this charge? Loitering for prostitution is something that we’re looking at declining to prosecute. It is a charge that you’re just looking at a person and thinking, “Well, they look like a prostitute.” Really it is a ploy for police to interact and potentially harass certain individuals. And then petty larceny: When you have petty larcenies for under $100, there are people that are stealing stuff they need to survive. I’m not saying we wouldn’t prosecute those at all. What I’m saying is that we will try and give those people the services they need, so that you’re not punishing these people for this poverty, that you are not saddling them with even a misdemeanor conviction because that’s going to have real effects on housing, future employment, that you’re diverting those cases out of the system.
I ultimately resigned from that office because I would prosecute misdemeanor lower-level offenses with an eye towards second chances. I worked in diversion courts and on lower level offenses misdemeanors, particularly petty larcenies when people were stealing items that they needed to survive, when they were under $100, and the victim in these petty larcenies were the Walmarts and the Targets. I would divert those cases and resolve them without probation or punishment, and I made sure that these people were either in the treatment that they needed and were going to continue that as part of the resolution of the case, and I thought that was sufficient. Whereas the DA’s office, they wanted probation or a jail sentence. And that happened a couple times, till it came to a point where I just kept disagreeing about this and that led to my resignation, among other cases that I thought that they were just punishing to punish.
You are describing your departure from the DA’s office, I think, as fueled by the view that their practices were too harsh or punitive. Is your motivation to run to change that?
It’s also just a focus on winning and convictions. The culture there is this desire to win at all costs.
Prosecutors never lose at trial because the job is only to do justice, to present evidence and whatever the jury says, that’s the result. You can’t lose as a prosecutor if you view your job that way. If you view it as adversarial, focusing on convictions, you get your priorities all twisted and then you get into a situation where you’re trying to win at all costs. I saw that when I worked there, and I saw that as a defense attorney. I decided to run to change that culture.
I want to return to my question on charges you would decline to prosecute: Some DAs are declining to prosecute people for driving with a suspended licence due to financial obligations. Virginia ended the suspension of licenses over a failure to pay court debt last week, but a bill to do the same in New York has not passed. As DA, would you prosecute people driving with such a suspended license?
No, I don’t plan to prosecute people for driving with a suspended license. Again, this goes to who you are prosecuting by what you are prosecuting. Oftentimes people who get jammed up on parking tickets are working class people moving from job to job, or parking on the street at a construction site for example. I don’t think they should be penalized with more fines, court costs, hiring a lawyer and taking time away from work to appear in criminal court on a minor traffic offense.
You have mentioned the need to approach substance use issues differently. We are increasingly seeing DA candidates say that we should approach substance use as a matter of treatment, but that can cover many different ideas. What does it mean to you to rethink approaches to the opioid crisis and addiction more broadly?
The opioid crisis is a public health epidemic and should be treated as such. In upstate New York, it has taken many young people’s lives, including a friend and highschool classmate of mine. Attending that funeral was hands down one of the saddest moments I’ve experienced.
I would expand the use of our treatment courts. If a crime is really fueled by substance abuse, we need to be more open to diverting those cases. A lot of the services that you can provide for treatment from opioids are better outside of a jail, and limited in a jail. If someone addicted to opioids committed a burglary, they could get thrown in jail for six years, and still have that addiction problem, and get out and reoffend. People are going to get clean when they want to, and that takes some flexibility and some effort in our drug courts. This also goes to, if the local hospital, the local medical professionals were to think it was wise to establish a safe location for people to use or dispose of needles, I would be in support of that.
OK, my next question was going to be about safe injection sites. David Soares joined a brief in support of Philadelphia’s site, and Mayor Bill de Blasio in New York City proposed creating a pilot program for some sites in New York City. So you would support potentially implementing and expanding this to Albany?
Yes, I would support safe injection sites.
As the opioid crisis has grown, we’ve been a surge of DAs nationwide, including some in New York, who are filing homicide charges in the aftermath of an overdose. Is that a sort of charge you’d use if elected?
No, I don’t plan to charge murder in the wake of an overdose. To now charge individuals with the highest crime in our land when the corporation behind Oxycontin, essentially legal heroin, has made billions is completely unfair. Many people addicted to heroin now were first prescribed opioids to deal with an injury. In fact, the drug was pushed on them because it was addictive. Overdoses often occur among people sharing these lethal drugs — siblings, partners and friends. What about the parent who has Oxycontin in their medicine cabinet, should they be charged if their child takes it and overdoses or shares it with a friend?
We’ve talked about the debates around last year’s pretrial reforms. Another recent New York reform was a commission to investigate prosecutorial conduct. David Soares called it “outrageous” and unconstitutional. DAASNY has since sued over the commission. Do you think this commission is desirable?
I’m in support of a commission on prosecutorial conduct. The purpose behind that law is to ensure that somebody is watching the prosecutor, that the prosecutors are answering to someone and that they are following their ethical obligations to turn over favorable evidence to the defense to prevent things like wrongful convictions.
That was the purpose behind this commission on prosecutorial conduct. The advocates behind that were people like Jabbar Collins, Jeffrey Deskovic, people wrongfully convicted who spent years or decades in prison because the prosecutors that they had on their cases were cutting corners, not turning over evidence that they should have. Without this commission, they don’t answer to anyone,
And regardless of what happens in the legislature, I’m going to establish a conviction integrity unit in the office, which Soares doesn’t have, and also a compliance unit that trains, supervises and rewards prosecutors, when they’re turning over favorable evidence to the defense, and also a police misconduct database. These are the critical best practices you put in place in a DA’s office to prevent wrongful convictions.
Police misconduct is as big a topic as prosecutorial misconduct, of course. Two DAs, Brooklyn’s Eric Gonzalez and Staten Island’s Michael McMahon, have made public lists of police officers who they have determined to not be credible, vowing to not call or rely on them. Would you implement such a “Do Not Call List,” and would you make it public?
You need accountability, and to get the community’s trust you need transparency. When we’re talking about something as important as people’s freedom and reputation, we need to make sure that the people accusing them are trustworthy and that their words aren’t just taken for granted. Again, if you have a culture of just winning convictions, you’re going to get to a situation where people are focused more on winning rather than on what the actual truth is. The prosecutor’s job is to seek the truth, and to seek the truth properly you need to have a database on police officers that have been less than trustworthy, have cut corners, or have engaged in misconduct. I’m happy to have that database in my office and share it publicly with the officers that have been really reprimanded for misconduct.
Some lawmakers introduced a bill last year to eliminate felony disenfranchisement in New York and guarantee the right to vote to all voting-age citizens. A GOP Assemblymember who represents Albany, Steve Hawley, called it “insulting” to “members of law enforcement and the criminal justice system who worked diligently to get these dangerous predators off the street.” If you were DA and the bill were to pass, would you find it “insulting?”
I think that’s offensive to society, to say that we’re just going to throw people away and label them as a convict or felon, and so they can’t vote ever. It is really a myopic view of people and humanity. The reality is that if people commit a crime and they’re held accountable and serve their time, they should be allowed to reenter society, respected and really supported to get back on track. I’ve seen it with people that are working on my campaign, formerly incarcerated people. Everybody has multiple chapters in life. And so when we’re saying that we’re going to give people the right to vote that have committed crimes, what we’re saying is we value people and that people should be heard. This is a critical right for people and they should feel like they are being heard and valued.
To clarify, the “insulting” remark was specifically about a bill that would allow all citizens to vote, including people in prison. So at what point do you think people have the right to vote? Would you favor the right to good at the point where they leave incarceration, or are you open to when they’re incarcerated as well?
I’m open to expanding the right to vote to include people presently incarcerated and presently on parole, I would say, for the reasons I just mentioned in terms of valuing people and not simply labeling them.
COVID-19 has made many prosecutors, sheriffs, and law enforcement around the country try to empty their jails and prison. Central New York jails have faced issues too. What would you do if you were DA now to protect people detained in prisons and jails and also working there?
What I would be doing is joining applications with the local public defenders to release at risk people from the jail or not putting them in if they are highly at risk to COVID. It’s a life or death situation. This is an issue that everybody should be concerned about. You have staff there, and people go in jails and they come out. In these situations where this disease could spread like a wildfire, it’s going to affect the larger communities as a whole. So my position would be to put less people in, not recommend bail on the majority of cases that are coming in, and certainly if there’s people there that are at risk to get them out.
This highlights the two systems of justice. Who got released was people with wealth, access and connections. Michael Avenatti was released from jail. Michael Cohen was released because he was at risk. And then you contrast that with someone like Michael Tyson at Rikers, who was accused of a technical violation [of parole], and he died because of COVID in jail. You want to avoid that happening and address that inequity.
These technical violations have been in the crosshairs of reformers long before COVID-10. So do you think people are incarcerated too aggressively over them outside of the current context? How would you set up supervised release to not trip people up and send them to prison?
Yeah, to address mass incarceration, you have to understand that these technical violations—not being on time, not being home, associating with the wrong person they’re so discretionary—and they can be so minor. To trip someone up and throw someone back in jail because of them, I think, is unfair. So I am moving away from prosecuting these technical violations. I said earlier I wouldn’t prosecute technical violations for positive tests for marijuana.
To address the issue of mass incarceration, you do it on the front end with what to charge and what not to charge, and you do it on the back end with parole and probation.
You also mentioned releasing at-risk prisoners; there’s been a push, as you know, to release elderly people. And that too is something advocates had championed before COVID: One bill would make incarcerated people who are at least 55 eligible for parole after 15 years in prison. The idea is to fight against the excessively long sentences that condemn people to die in prison. Would you support this “elder parole” bill? What else would you do against excessively long sentencing?
I am in support of a bill like that. I just participated in a rally yesterday with Capitol Area Against Mass Incarceration and the RAPP campaign (Released Aging Individuals in Prison) calling on on Governor Cuomo to release people at risk in our aging prison population in light of COVID. What I think you can do more is establish a unit in the office, sort of a post-conviction unit along a conviction integrity unit, to weigh in on these parole decisions. Someone comes up to the parole board, they’ve served their time, prosecutors can weigh in, draft letters and review behavioral history while the person was incarcerated and say it’s appropriate to release this individual. So it’s being more proactive about this: This is what it means to be progressive, it means taking action within the office, and that’s how I would go a step further than supporting a bill; let’s establish a unit in the office.
So the idea would be to be more proactive about encouraging parole grants? Making people eligible for parole only goes so far if the parole board denies applications.
That’s fair to say. It reminds me of the scene in Shawshank Redemption where Morgan Freeman comes up for parole time and time and time again and they just rubber stamp deny, deny, deny. At the end he just says, “I’ve been here for X amount of years. I wish I could go back, and I think about it every day. So go stamp what you want.” And then they release him. People that have been there for so long that have served their time and are reformed, they should be released and given the opportunity to live the other chapters that they have in their life.