To hear the media tell it, Manhattan district attorney Cyrus Vance Jr. is soft on white-collar crime. First came the news that an attorney for Ivanka Trump and Donald Trump Jr. had arranged a fund-raiser for Vance after he refused to prosecute them for fraud. Then there was Vance’s decision not to file sexual-assault charges against Harvey Weinstein, even though police had caught the Hollywood mogul on tape confessing to the crime. Last month, spurred by a story in New York, Governor Andrew Cuomo ordered the state attorney general to investigate Vance’s handling of the case. The incidents have cost the DA: During his uncontested election for a third term in November, 10 percent of voters were so fed up with him that they went to the trouble of writing in someone whose name wasn’t Cy Vance.
But all the attention on Vance’s treatment of the rich and powerful has obscured a more surprising aspect of his record: The DA, who styles himself a progressive reformer, is actually far more punitive toward poor and minority defendants than his counterparts in other boroughs. According to a report issued last year by a special commission on Rikers Island, Vance’s office was responsible for almost 38 percent of the city’s jail population in 2016, even though it handled just 29 percent of all criminal cases in New York. “No other borough comes close,” the report concluded. Brooklyn — despite having a million more residents than Manhattan — accounted for only 22 percent of those behind bars.
Vance’s selectively tough approach to law and order continued last year. Even as the DA supported the growing movement to close Rikers, his office continued to fill the jail at a far higher rate than other boroughs’ DAs. As of December, according to data published by the Department of Correction, a third of the city’s inmates — including 2,251 at Rikers — had been sent there from Manhattan.
That parade of imprisonment is compounded by Vance’s onerous demands for bail. In 2016, the DA’s own statistics show, his office detained 17 percent of those it charged with misdemeanors or minor infractions — anything from smoking a joint to jumping a turnstile. Only Staten Island, with one-seventh as many petty crimes as Manhattan, matched that level of incarceration.
Then there’s Vance’s notoriously stingy approach to providing defense attorneys with the police reports and witness statements they need to defend their clients. While most of the city’s other DAs have moved toward the practice of “open file discovery,” releasing crucial records shortly after arraignment, Vance pursues what defense attorneys call “trial by ambush,” using the narrow requirements in the state’s law on pretrial disclosure — considered one of the most restrictive in the nation — to withhold vital evidence from indigent defendants until the last possible moment. As a result, public defenders say, poor clients in Brooklyn can easily obtain evidence that is denied to those accused of similar crimes in Manhattan. “It’s two boroughs divided by a river,” says Bill Gibney, a veteran of the Legal Aid Society, the city’s oldest and largest public defense organization. “Different policies, different results.”
In a lengthy interview, the usually mild-mannered Vance bristles at any suggestion that his office takes a different approach to justice based on class or race. “Do we treat the wealthy different than others purposely? The answer is no,” he says hotly. Any such suggestion is “offensive,” he adds, pointing to two recent cases prosecuted by his office: “Ask the two young white men just convicted of rape, both from wealthy families.”
In Weinstein’s case, Vance says, his office’s sex-crimes prosecutor decided the charges were unprovable. “A judgment was made — that I could not disagree with — that we wouldn’t go forward with that case,” he says. “It was a B misdemeanor at the time,” he adds dismissively.
That comparison, however, serves only to underscore the way Vance’s office takes a different approach to the poor. Ordinary misdemeanors like the one Weinstein faced usually don’t merit personal attention from the DA — and usually wind up with the accused being prosecuted. “We see a lot of complaints drawn up with a lot less evidence,” says Edward McCarthy, a Legal Aid supervisor who has two decades of experience in Manhattan’s criminal courts. Jonathan Oberman, a professor who trains public defenders at Cardozo Law School, also scoffs at Vance’s reasoning. “There are conflicting stories from a witness?” he says. “Okay — then just apply the same standard to poor and low-income people and let them derive the same benefit.”
Such criticisms are especially awkward for Vance, who prides himself on being at the forefront of progressive reform. In 2010, Vance became the first DA in the state to create a special unit to address wrongful convictions — but ever since, he has refused to disclose whether the unit has actually exonerated anyone. During our interview, however, Vance reverses himself and provides me with a list of seven names. “I was told you’d asked for this, and I said we should provide it,” he tells me. He had previously kept the cases secret, he explained, because “generally speaking, there’s a view that these people want the cases behind them.”
On closer scrutiny, though, it turns out that one of the defendants on Vance’s list was convicted after a retrial, while another was released only after he pleaded guilty to lesser charges. All told, after eight years, Vance’s unit has exonerated only five defendants who were wrongly convicted — compared to two dozen in Brooklyn. Vance’s office is “much more interested in preserving convictions than in taking a fresh, objective look at all the evidence,” says Robert Gottlieb, a former member of Vance’s transition committee who has been seeking to win exoneration for a defendant named Jon-Adrian Velazquez since 2011. “I call it the conviction-rejustification unit,” adds Ron Kuby, who has won several wrongful-conviction claims on behalf of clients in both Brooklyn and Manhattan. “Their method is to collect evidence to attack your witnesses and your argument.”
In recent months, seeking to bolster his image as a reformer, Vance announced that his office will no longer demand bail for most misdemeanor charges. He has reduced penalties for marijuana possession and reinforced a vow he made last year not to prosecute most cases of fare evasion. He proudly displays a chart showing that his office has reduced the number of misdemeanors it prosecutes by 26 percent since 2014. Prosecutions for smaller-time offenses, like unlicensed vending or taking up more than one seat on the subway, have plunged by 87 percent.
But critics say Vance is taking credit for broader trends he has no influence over. “The reason marijuana arrests went down was because of political pressure,” says Issa Kohler-Hausmann, a Yale Law School professor and the author of Misdemeanorland. “There was a massive campaign against low-level arrests that targeted blacks and Hispanics. It had nothing to do with Cy Vance being a good guy.”
Lawyers for the poor, meanwhile, say that Vance has failed to enforce many of his much-heralded reforms. “We’re still getting bail requested on people who are not a flight risk charged with misdemeanors and nonviolent felonies,” says Tina Luongo, chief attorney for criminal defense at the Legal Aid Society. “The entire nation is talking about not setting bail for these groups of people, but somehow he can’t inspire or motivate his staff to do it. It’s frustrating to hear somebody boast themselves to be about reform and not recognize that they are running almost two separate shops of prosecution — one for people with access and influence and one for poor people.”
Click here for more from The Marshall Project: Vance the philanthropist, Vance and the hide-the-evidence game, Vance and the rise of reform DAs.