This Public Defender Has Fought the Manhattan D.A.’s Office. Now She Wants To Lead It.
Eliza Orlins, who is running in the June 22 primary, lays out how she would overhaul the "prosecutorial-industrial complex."
Daniel Nichanian | April 19, 2021
This article originally appeared on The Appeal, which hosted The Political Report project.
Eliza Orlins, who is running in the June 22 primary, lays out how she would overhaul the “prosecutorial-industrial complex.”
Manhattan District Attorney Cy Vance said on Thursday that he would seek to vacate 100 convictions that were obtained via the work of NYPD officer Joseph Franco, who is indicted for perjury and falsifying testimony. The Brooklyn DA had made a similar move a week earlier.
But these rare announcements—targeting one police officer who left behind such an explosive trail—cannot conceal the serial pattern of New York DAs depending on officers they already know to be unreliable in order to keep locking people away, as The Appeal and other outlets have long documented. Franco’s own history shows what prosecutors have to gain from this. Most of his cases that are being vacated ended in guilty pleas. The weight of an officer’s testimony can pressure defendants into taking a prosecutor’s deal rather than challenging the officer at trial. And when the actions of line prosecutors come under scrutiny, their bosses tend to fight oversight or isolate the allegations.
“This is the system working as designed,” Eliza Orlins, a career public defender who is running for DA in Manhattan, told The Appeal: Political Report about Franco in a Q&A.
Orlins is making the case that voters need to elect someone who has never been part of what she called the “prosecutorial-industrial complex” to overhaul this system.
The crowded field includes other candidates who have never worked as prosecutors, namely civil rights attorney Tahanie Aboushi and Assemblymember Dan Quart. But Orlins notes that she is the only candidate with a background as a public defender, so she has spent her “entire career going up against the Manhattan DA’s office.”
“As a public defender, I have seen the way that my clients who are predominantly Black and brown people are treated by the criminal legal system,” she said. “They’re more likely to have money bail set on them pretrial, more likely to receive higher plea offers that result in incarceration, more likely to be charged with drug possession or some of these low-level offenses.”
Orlins said she would not seek tougher sentences against people who refuse to plead guilty, with an eye to ending the practice of incentivizing defendants to take a plea offer. She laid out why she would stop seeking cash bail and only seek pretrial detention in “extreme circumstances.”
Orlins, like some of her opponents, is also making the case for significantly downsizing the scope of prosecution—the vast majority of current cases, she says, involve things that the criminal legal system should not be concerned with. She vows to outright decline to prosecute many misdemeanor and low-level felonies including sex work, as well as drug possession and low-level drug sales. “Public health problems like substance use disorder, should be addressed in public health sectors and not within the criminal legal system,” she said.
On the other hand, she says she wants to ramp up prosecuting some offenses, including labor and environmental crimes and violations of labor rights, in the name of broadening what is seen as a threat to public safety. “Safety should be defined as the ability to live, to live without fear and be provided for,” she said.
The race to replace Manhattan’s retiring DA, Cy Vance, has been shaped by debates on how the next prosecutor can best bring about criminal justice reform and decarceration. In February, for instance, an organization of public defenders hosted a forum featuring four of the candidates (Orlins, Aboushi, Quart, and former deputy attorney general Alvin Bragg) to dig into what separates the most progressive contenders.
This is the Political Report’s third Q&A with a Manhattan DA candidate, following interviews with Aboushi and Quart. The Political Report is also probing the direct contrasts between them with a series that has so far covered the war on drugs, sex work, and statewide advocacy.
The interview has been condensed and lightly edited for clarity.
The Brooklyn DA announced last week that he would seek to vacate 90 convictions in cases involving police officer Joseph Franco, who is accused of perjury. By contrast, when news broke last week that prosecutors had withheld evidence in a case in Queens, the DA declined to review their past cases. What do you make of these decisions, and how would you handle past cases that may involve misconduct? [Note: This interview took place before the news on Thursday that the Manhattan DA would seek to vacate 100 cases that involved Franco.]
I’m absolutely appalled by the revelation that Franco lied in 90 cases, and I’m glad that [Brooklyn] DA Gonzalez is dismissing those cases, but Franco is not unique.
As someone who spent my career as a public defender, I know that these cases are not an anomaly or an aberration, and that there is so little accountability for police officers who lie. I have seen that time and time again. Even when I’m able to show proof that they were lying, the best case scenario is that the case gets fully dismissed but typically it results in no accountability for the police officer. That officer is allowed to continue to operate, testify, and make arrests.
This is the system working as designed, and it’s going to continue unless we change the way the system is actually working.
And how frequently do you think similar issues exist within the ranks of prosecutors?
Prosecutors for far too long have been able to also operate with impunity, to uphold this system and be complicit in this continuing misconduct. And overhauling the system means holding prosecutors accountable as well. There has to be someone there who is an outsider, someone who has not played an active role or held a position of leadership in a prosecutor’s office.
I am really excited to be able to take on this role as the only public defender running. We can’t entrust these reforms that are so desperately needed to career prosecutors. As the only person who spent my entire career going up against the Manhattan DA’s office, I know exactly the ways in which we need to bring about this systemic change and what I would do to change things.
So, if the issue goes beyond accountability for specific officers or prosecutors, how will you go about questioning past cases more broadly?
The DA must be proactive. That is why I have proposed a conviction review unit that is fully independent, one that doesn’t just look back on cases years or decades after the damage has been done but is ensuring in the moment that these cases are justly executed. One that protects against wrongful convictions, broadly defined: In many cases, someone is facing long-term incarceration for something where the law has changed, it’s been decriminalized, it’s something I’m declining to prosecute, it’s associated with a prosecutor or a police officer who is known to have committed misconduct. This has to be a broad, overreaching review.
We know that prosecutorial decisions compound racism in the legal system. Studies have shown that in New York, Black people are more likely to receive pleas or sentences that carry jail or prison time. How would you change the handling of prosecutions to confront this?
As a public defender, I have seen the way that my clients, who are predominantly Black and brown people, are treated by the criminal legal system. They’re more likely to have money bail set on them pretrial, more likely to receive higher plea offers that result in incarceration, more likely to be charged with drug possession or some of these low-level offenses.
That’s why I’ve put out a robust decline-to-prosecute policy: Not prosecuting the overwhelming majority of misdemeanors and low-level felonies will make a huge difference, as well as abolishing money bail and using pretrial detention only in the most exceptional circumstances, and not replacing money bail with some dangerousness standard or risk algorithms that we know are also systematically racist.
And what we can do is have an ongoing analysis that is really public and transparent, so that if there are any disparities we are addressing that in the moment.
You mentioned limiting pretrial detention. You say in your platform that you would set a “presumption of release in all cases.” What are the factors that will determine whether and when your office honors that presumption, or lifts it and recommends pretrial detention in a given case?
In New York, bail can only be based on a person’s risk of flight. Under my leadership, the Manhattan DA’s office would only seek pretrial detention in extreme circumstances — as in, for example, those rare cases where someone’s wealth, means, resources, connections, and/or ability to flee the jurisdiction are so significant that no set of release conditions (including extensive pre-trial supervision, which would also only be requested in extreme circumstances) would be extremely unlikely to mitigate them. Any request for pre-trial detention would have to be made directly to me or one of my high-level supervisors.
This policy, coupled with your vow to never seek cash bail, goes further than the 2019 bail reform, which was fought by police unions and many of New York’s DAs; they said increased pretrial releases posed risks to public safety. How would you respond now to those arguments made by other prosecutors, and how would you prepare to answer similar pushback if you were elected?
We know how damaging the Willie Horton effect is, and that one exceptional circumstance is often used to then create this long-term, very damaging narrative. But we have to make sure that this doesn’t impact the way that we talk about these things. Money bail is deeply discriminatory, it doesn’t prevent crime, it’s not necessarily to ensure someone’s return since there are many less restrictive alternatives available, and it fundamentally destabilizes people’s lives.
We’ve been sold a false choice between public safety and incarceration. As Americans, we’ve been told the only way to keep our community safe is by locking people up, even if it’s pretrial, even if they’re supposed to have the presumption of innocence. The presumption of innocence is only really applied to people who have the money to buy those freedoms.
This presumption of release has to apply to everyone. You should be at liberty when you fight your case. People who are at liberty have better outcomes in their cases. They’re more likely to continue to fight their case and find out more evidence along the way; they’re able to continue to go to work, to put food on the table for their family.
In your platform, you focus on the importance of ending the “trial penalty,” which means not seeking a heavier sentence at trial against people who refused a plea deal. In your experience, how does this practice harm defendants, and how would this change make for a fairer system?
The overwhelming majority of cases result in pleas of some sort, and most of it is because of the system’s unbelievably coercive nature. Many times, I’ve had clients who were unconstitutionally stopped or searched. We’ve gotten up to the brink of a hearing on that, and then the DA would say, “We’re offering probation now, but if we do this hearing we will be recommending the minimum on the top charge of the indictment,” and my client has to decide between risking years of incarceration or challenging what we know was an unconstitutional stop and search. It is critical that someone should have the right to challenge the constitutionality of a search or seizure, that they should be able to exercise their right to go to trial and cross examine witnesses against them, without the overwhelming fear of this massive penalty if they choose to do that.
In terms of resources and time, the criminal legal system processes this large a volume of arrests and cases by relying on people pleading guilty. How would you ensure you’re not stuck managing a system that is administratively dependent on keeping up that premise and on pressuring people to plead out? How would you break that logjam?
The system, as it is working right now, does require pleas in order to keep going because it churns so many cases. When I’m elected, it will likely and hopefully produce an increase in the number of cases that go to trial: People should have that right. And the way in which we’re going to make sure that doesn’t create some backlog is by declining to prosecute what we estimate to be around 70 percent of the cases that are coming through, cases that never should have been in our criminal legal system to begin with. We will be able to accommodate trials when people want to exercise their right to go to trial or challenge the constitutionality of a search.
Let’s talk more about your platform of declining to prosecute many offenses, which includes categories like sex work and drug possession. Why do you think this is the best approach for a DA to take regarding lower-level arrests?
To the extent that someone needs services, they should be able to opt in and have those services provided to them independent of and outside of the punitive structures of criminal court.
Public health problems, like substance use disorder should be addressed in public health sectors and not within the criminal legal system. Diversion courts or problem solving courts, are another net-widening intrusion into people’s lives.
Some prosecutors talk of those same courts and programs as modes of reforms. So can you say more about why you see them as punitive and how you saw that play out in your own cases, for instance when it comes to substance use?
With regards to drug treatment courts, first of all, you have to beg to get into them: I have had clients who signed HIPAA releases so that every medical record they have ever had in their entire lives can be turned over to the DA’s office to review; then the DA’s office has still found that they don’t think this person is worthy of participating in a treatment program. Even once they’re in, there’s such a lack of understanding of what it means to go through recovery: You get penalized for any regression and you relapse. In some of these courts, my clients have to pay out of pocket for the privilege of participating, and they have to waive constitutional rights; and then they face terms of substantial incarceration if they relapse or fail out of the program in some way.
So how should New York State change its laws on drugs to be in line with your perspective? Oregon recently decriminalized drug possession, for instance. Should New York follow suit?
It’s so exciting to see progress across the country, and it’s thrilling to see that this is an issue that is coming to the forefront because the war on drugs has not kept us safe. It is my sincere hope that New York will follow in his footsteps of Portugal, of Oregon, to decriminalize all drugs. We need to make sure that people who need services are receiving them, and treatment is available.
Drug possession is on the list of offenses you say you would decline to prosecute. In light of this perspective, how would your office handle drug sales?
Low-level drug sales are also something I would decline to prosecute. As a public defender, I’ve had clients who have been targeted by undercover police officers: They go up to and approach people who are clearly suffering from substance use disorder, pretend to be dope sick, beg for someone to hand over some of their own stash, and then an entire narcotics team swoops in. All of a sudden my client is facing years in state prison.
But I haven’t categorically said that I would end prosecution of A1 drug sales. There are certain things that we have to consider in protecting New Yorkers, if kilos of fentanyl or heroin are being trafficked into Manhattan and someone is engaging in that.
We’ve talked about why you argue that in some areas the criminal legal system is used too broadly. You’ve also talked about ramping up the prosecution of some behaviors like housing fraud or labor rights. How do you negotiate the balance between those aspirations?
We far too often narrowly define public safety. Safety should be defined as the ability to live, to live without fear and be provided for. We also tend to exclude the safety to live in one’s home, to have enough food on the table, and to be able to drink clean water and breathe fresh air.
We should be talking about holding corporations accountable when they break the law and when they exploit workers, when they put people’s lives at danger, or the slow violence of environmental crimes that take place over years or decades.
I think the systemic over-prosecution of low-level offenses, and the systemic under-prosecution of some of these repeated larger crimes, result in a larger cumulative effect on public safety that I want to take on when I take office. Really, it’s standing up for the same people, the people who are the most hurt by so many of these systemic failures.