Where law-and-order justice still reigns in New York city

Neck and neck with Melinda Katz, the Queens borough president, Cabán ran a campaign that attracted the endorsement of Alexandria Ocasio-Cortez and seemed to signal that the wave of progressive prosecutors elected to big cities across the country — from Chicago to Dallas to Philadelphia — had arrived in New York.

But you wouldn’t know it in Staten Island, the last holdout borough with a law-and-order brand of criminal justice, where the incumbent district attorney, Michael McMahon, is coasting toward re-election unopposed. While the city’s other prosecutor’s offices have adopted the trappings of reform, if not always its substance, his has generally defied the trend. Local advocates may disagree with many of his positions, but as in more conservative areas nationwide, they are uncertain if they should hope for more.

If McMahon drew any meaning from Cabán’s surprisingly strong showing, he tries not to show it. “There was a primary in Queens?” he asked in mock ignorance. Silver-haired and dapper at 61, he was seated in his ninth-floor office in the Mark A. Costantino Judicial Center, with a view of the tankers traversing Upper New York Bay and the skylines of the other boroughs beyond. But his focus is firmly on Staten Island.

The borough’s voters know McMahon well. A Democrat first elected to New York City Council in 2001 by the island’s diverse North Shore, where he lives in the affluent Randall Manor neighborhood, he then won a seat in Congress in 2008. His moderate record there, including his vote against the Affordable Care Act, put him at the dead center of the ideological spectrum but was not enough to stave off defeat two years later during the Tea Party wave.

The seat for district attorney opened in 2015, and he ran against a career prosecutor who criticized him as a politician inexperienced in criminal law. McMahon won handily. Largely absent from the contest was any discussion of the death of Eric Garner during an encounter with the police on Staten Island the year before and a grand jury’s subsequent decision not to indict any involved officers. McMahon avoided commenting on the case itself, but he suggested his predecessor could have better explained the investigation and grand jury process to the public. This week, federal prosecutors also declined to bring criminal civil rights charges in the case.

As the DA, McMahon maintains the busy public schedule of a politician. Staten Island is the only borough with its own major daily newspaper, the Advance, and it covers his appearances frequently. The elevator bay at the district attorney’s office is decorated with recent clippings: a veteran’s event on Flag Day where McMahon spoke, a ceremony to rename a street for a police chief.

He has also attracted new resources to the office, expanding its budget from $11 million in 2016 to $17 million in 2019, increasing the number of attorneys by 58%, and opening new bureaus to investigate narcotics crimes, address domestic violence and engage with community members about their concerns.

On high-profile issues, McMahon has made a habit of parting ways with the city’s more progressive district attorneys. In 2017, when the city’s other prosecutors collectively dismissed 644,000 decade-old summons warrants for minor offenses, he was conspicuously absent.

After the Brooklyn and Manhattan district attorneys announced last summer that they would stop prosecuting arrests for marijuana possession and public smoking, McMahon criticized the change as rash and said he wouldn’t join them. Controlling for population, in 2018 Staten Island had more convictions for marijuana possession in the fifth degree — typically charged when someone is caught smoking or holding a small amount in public view — than any other borough, according to an analysis of data from the State Division of Criminal Justice Services.

And this spring, after prosecutors from New York and elsewhere voiced support for ending cash bail, McMahon published an op-ed in the Advance warning that the current wave of criminal justice reform would “sweep us back to the Dark Ages of criminality of the ’70s and ’80s, and give the wild gangs, violent thugs, death-dealing pushers and violators of women and children the keys to the city.”

His office employs bail more often than other city prosecutors’, too, demanding it for a higher share of misdemeanor and nonviolent felony cases than any other borough, according to 2018 data from the New York City Criminal Justice Agency. And public defenders say his office is more intransigent in plea-bargaining, giving defendants little room to resolve their cases without criminal penalties.

“While other district attorneys in New York City — especially the Manhattan and Queens offices — have gotten a lot of attention recently for their more punitive and regressive approaches to prosecution, I think Mr. McMahon has sailed under the radar for too long,” said Insha Rahman, the director of strategies and new initiatives at the nonprofit Vera Institute of Justice.

But McMahon rejects the characterization of being behind the times. “It’s sometimes misconstrued that we oppose reform,” he said. “It’s quite the opposite. I think in many ways, we’re ahead of the curve.”

One area in which that might be the case is his approach to the opioid epidemic, which was cresting in Staten Island when he took office. Early in his term he personally led the development of the Heroin Overdose Prevention and Education (HOPE) diversion program for people with little or no criminal record who are arrested for a minor drug offense. HOPE allows them to avoid a court appearance entirely, directing them instead to a peer mentor and treatment services. Since its inception in January 2017, 570 people have completed the program, and Brooklyn, Manhattan and the Bronx have replicated it.

But the term McMahon most frequently invokes to describe his approach is “balanced.” And true to his word, no sooner was he done describing HOPE to me than he burnished his tough-on-crime credentials by boasting that his office was the first in New York City to bring manslaughter charges against a drug dealer for the overdose death of a customer.

Christopher Pisciotta, the head of Legal Aid’s Staten Island office whose attorneys represent the majority of defendants charged by the district attorney’s office, said he welcomed McMahon’s diversion program for those eligible to participate. “I’ve got to give him credit: I think it was an innovative program at the time.” But Pisciotta was critical of how HOPE excludes people with lengthier criminal histories and said it should be greatly expanded. Advocacy groups point out that, overall, the number of people diverted to treatment services by other Staten Island programs has actually fallen.

Diane Arneth, executive director of Community Health Action of Staten Island, which worked with McMahon to develop HOPE, said she would also like to see the criteria for eligibility expanded. Nor did she defend the hard line McMahon has taken toward other substances. “The district attorney and I probably don’t agree on his approach to marijuana, and we can agree to disagree,” she said. “But we found common ground in this other area, so I am not going to throw the baby out with the bath water.”

The political reality is that the voters McMahon depends on for re-election are more conservative than the electorate in the other boroughs. The share of Staten Island’s population that is white is double that of the city as a whole, and 70% of the borough’s residents were born in New York state, compared with 48% citywide.

There are more homeowners, too: In Staten Island, 2 in 3 homes are owner-occupied; citywide, 1 in 3 are.

Although registered Democrats still outnumber Republicans, elected officials there must be ever mindful of their right flank, said political consultant Jerry Skurnik, who counts McMahon among his clients. “For a Democrat on Staten Island,” he said, “that comes with the territory.” (Rep. Max Rose, a moderate freshman Democrat representing the area, is another politician who has had to balance appealing to conservatives with speaking out on reform.)

Members of law enforcement are overrepresented on Staten Island, too, where they make up a higher share of the population than in any other borough, and McMahon has earned the enthusiastic endorsement of many of their unions, including the Detectives’ Endowment Association.

“The detectives love Mike,” said Tom Scotto, 76, a former president of the association who served as a detective on Staten Island for 14 years and later retired to the island’s conservative South Shore. His daughter and son also joined the police department, and two of his grandsons are officers in the borough’s 120th precinct. Scotto said he sees the district attorney at nearly every police function. “Not for publicity — he just shows up, shakes hands and has a beer.”

But McMahon doesn’t shy away from those with a different vision for his office. Mike Perry, who grew up in the Richmond Terrace public housing project and helps run the community-based anti-violence nonprofit True 2 Life in the Stapleton section of the borough, is emphatically opposed to much of how the criminal justice system operates. But he says that McMahon has spoken supportively of True 2 Life’s work and participated in several of its events.

“A lot of times, DAs are distant, but McMahon has been in the communities. He’s been out there. And we appreciate him for that.”

Where law-and-order justice still reigns in New York city

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