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The publication of a new report presents hard questions of one of the country’s most famous prosecutors, making a case that he used his discretion in unrestrained and unfair ways to bring charges against young people of color. The report, published by CUNY Law Professor Babe Howell and covered at length by Alice Speri at The Intercept, explores the actions of Preet Bharara, the former U. S. Attorney for the Southern District of NY, best-selling author, frequent cable news pundit, host of a popular podcast, and a darling of Obama’s DOJ. The report indicates Bharara criminalized swathes of young black youth who were not gang members or accused of any violence by bringing gang indictments against them.  

Conspiracy doctrine is a problematic framework for prosecutors, explains Howell, one that does not require proof that a person committed a particular crime, was present at the time of the crime, or even knew of the crime in order to be arrested, prosecuted and jailed. All it requires is for prosecutors to “point to commission of crimes as proof or agreement” that there was a conspiracy to commit those crimes by all members of a gang or crew.

In the case of the Bronx 120, the name given to the hundred-and-twenty young men arrested en masse in Eastchester Gardens and the surrounding neighborhood on the morning of April 27, 2016, Preet Bharara announced proudly thereafter that the raid was believed to be the “largest gang takedown in New York City history.”

What Howell’s report reveals in excruciating detail is that, in fact, half of the defendants arrested that night were not alleged by the State to be gang members at all, and two-thirds of the defendants were ultimately convicted based upon drug sales (the majority of which related to marijuana) or other non-violent offenses, rather than the gun or violence-related charges that prosecutors relied on to justify the “mass takedown.”

Yet, Howell laments, “Despite warnings relating to the potential for abuse and unfairness of conspiracy charges, their use has been tolerated and continues. Conspiracy charges have been used with increasing frequency in New York…”

“In conclusion, the Bronx 120 indictments appear not only to be overbroad and unfair, but they seem profoundly unwise. Prosecutors can use mass conspiracy indictments to round up local crews and gangs and to erase the difference between bad actors and their friends and peers. But they should not. Even the privileged among us would not choose to be held criminally responsible for the conduct of fraternity brothers, high school friends, or even drama club or math team members. Bad decisions and conforming behavior are the norm for adolescents and young adults, but many avoid engaging in violent conduct and others can be helped to develop non-violent responses. Conspiracy is a powerful tool but should not be leveled against the least powerful among us; instead, our goal should be constructive interventions and individualized justice with full due process of law.”

These issues arising out of Preet Bharara’s work at the Southern District are reminiscent of the situation faced by another former prosecutor seeking the national Democratic Party limelight. Open File readers are all too aware that when current Presidential hopeful, Kamala Harris, was the AG of California, she acted as accomplice to the Orange County District Attorney’s office when it perpetrated grave misconduct against criminal defendants by seeking to uphold its ill-won convictions. Like Harris, Bharara shouldn’t be crowned a ‘hero of The Resistance’ until he publicly apologizes for his own serious abuses of prosecutorial power.

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