(Content note: this article contains mentions of intimate partner violence and abuse)
While running for office in September 2020, then-Manhattan District Attorney candidate Alvin Bragg tweeted in support of Tracy McCarter, a domestic abuse survivor who had been charged with second degree murder after the death of her abusive ex-husband, James Murray: “I #StandWithTracy. Prosecuting a domestic violence survivor who acted in self-defense is unjust.” Advocates took Bragg’s statement as a hopeful promise, but in the months following his election, he grew increasingly tight-lipped about McCarter’s case, leaving her at the mercy of a criminal justice system that has mismanaged prisoners’ safety in the midst of a pandemic and has an even worse track record in supporting domestic abuse survivors.
After being charged with her ex-husband’s death in 2020, McCarter, a 46-year-old nurse, was locked in Rikers Island for six months while COVID-19 ravaged New York City and posed a significant threat to those detained in the city’s jails. Two weeks after DA Bragg tweeted his support of McCarter during his campaign, McCarter was released on home detention in her Harlem apartment, where she’s remained for the last 18 months as her case winds through the system. In the middle of this March, McCarter was joined by her attorneys, her family and friends, and a growing cohort of supporters to hear the outcome of her first court hearing of 2022. McCarter’s attorneys had sought modified bail restrictions that would allow her to leave the state to receive inpatient treatment in Florida for her deteriorating mental health, urging Judge Melissa C. Jackson to consider McCarter’s recent hospitalization due to ongoing PTSD and trauma.
Judge Jackson denied the request for modified bail restrictions, and Bragg, whose successful run for office included avowed support for domestic abuse survivors facing charges stemming from their abuse, has failed to answer questions about dismissing McCarter’s charges or provide any indication that he plans to do so. If convicted, McCarter could face a sentence of 25 years to life. McCarter’s indictment and Bragg’s unwillingness to drop her charges reveal the consequences of carceral feminism—reliance on the carceral system to address gender-based violence—and how the myth of the “progressive prosecutor” obscures how the criminal legal system compounds harm for survivors like McCarter who have already faced unimaginable violence.
McCarter was still at Rikers when organizers at Court Watch NYC, which collects and publishes data about prosecutors’ behavior through observing court hearings, first learned about her case. McCarter first met Murray in 2014 and married him five years later. In an interview with The Intercept, Ashley Gray, a friend of McCarter, described their marriage as a “Dr. Jekyll and Mr. Hyde situation” marked by Murray’s alcoholism and abuse of McCarter. Not long after their marriage, McCarter moved out to protect herself from his abuse, later explaining to The Gothamist that she “could not continue to put [herself] at risk.” On March 2, 2020, McCarter let Murray into her home to sober up after he locked himself out of the Airbnb he was staying at, but later that evening, Murray began demanding money for alcohol. He grew angry and physically aggressive after not finding any cash in her purse. To shield herself, McCarter held up a knife, but Murray continued charging at her, causing the knife to pierce his chest. After a neighbor heard McCarter’s screams for help, the police were called and arrived to find McCarter attempting to administer first aid. Later that night, Murray was pronounced dead, and McCarter was arrested.
The then-Manhattan DA Cyrus Vance denied McCarter bail and pushed to keep her in pretrial detention despite the suspension of grand jury proceedings due to the spread of COVID-19. McCarter was held in Rikers Island and subjected to conditions that would be a public health nightmare even outside of the context of the pandemic. During the earliest days of the pandemic, McCarter said that she and others who were held at Rikers were only given a single mask to be reused for the duration of their incarceration, and hand sanitizer was removed from the jail’s clinic. Rikers staff routinely wore masks incorrectly or not all. In addition, McCarter’s time inside also meant missing the birth of her first grandchild, the loss of her job, and a suspension from the nursing courses that she had been taking at Columbia University.
Given the role that McCarter’s history of abuse played in her case, volunteers at Court Watch NYC reached out to Survived & Punished New York City (S&P), a coalition of defense campaigns and grassroots groups committed to both ending the criminalization of survivors of domestic and sexual violence and eradicating the culture that contributes to it. Organizers with S&P reached out to McCarter and also connected with her family, answering their questions and providing them with support through check-ins and sending care packages. With McCarter’s permission, the group coordinated the “I Stand With Tracy” defense campaign, publicly advocating on her behalf and using social media to uplift her story and garner more media attention around it. By September 2020, pro bono lawyers had taken on McCarter’s case, and she was granted release on electronic monitoring. However, despite these victories, the primary goal of having McCarter’s case dismissed remains unfulfilled, as does Bragg’s seeming commitment to not prosecute survivors of domestic abuse.
As reported by Prism, more than 80% of women detained in jails in the U.S. are survivors of abuse. In New York, two-thirds of women incarcerated for killing someone close to them had been abused by that person, and a great deal of discourse and advocacy around the criminalization of survivors has rightfully focused on those currently in prison. In New York State, the passage of the Domestic Violence Survivors Justice Act in 2019 opened the opportunity for these incarcerated survivors to seek reduced sentences because the judicial system failed to properly recognize the role their abuse played in the offenses for which they were convicted.
McCarter’s case, however, reveals the importance of making those connections before sentencing and draws attention to the fact that prosecutors’ offices can decide at any point pretrial to drop charges. When increased media coverage around McCarter’s case began to coincide with the 2021 Manhattan District Attorney race, it posed a direct query to candidates who claimed they supported survivors and would seek an end to their criminalization: will you drop the charges against Tracy McCarter?
The myth of the progressive prosecutor
Bragg continues to claim that cases involving domestic abuse survivors have “significant profound importance” to him pointing to his appointment of Joyce Smith, a career prosecutor whose past work has largely focused on domestic violence cases, to head his office’s trial division as evidence of his commitment. But in a town hall hosted this February by the People’s Coalition for Manhattan DA Accountability, Bragg remained vague about how and if he will prosecute future cases involving survivors of domestic abuse. Prism reached out to DA Bragg’s office for this article, but they declined to comment. Bragg’s refusal to drop McCarter’s charge now that he is in office after his willingness to publicly tweet that ongoing prosecution of her case would be “unjust” has not only frustrated advocates, but also speaks to the political utility of making commitments toward progressive demands while on the campaign trail even if a prosecutorial candidate has no intention of fulfilling them.
The deepened understanding of which promises to make and which key issues to support has largely been shaped by the growing movement to elect progressive prosecutors. While abolitionist groups like S&P recognize the importance of mounting accountability campaigns to pressure district attorneys into using the power of their office to drop charges, they also remain wary of the idea of the progressive prosecutor. A prosecutor’s willingness to not pursue charges against survivors of domestic abuse does not inherently render their office progressive.
Regardless of their actions in individual cases, prosecutors are part of the carceral system, and painting them as “progressive” dangerously obscures this critical fact. Samah Sisay, an organizer with S&P, notes that prosecutors enjoy a substantial level of distance in the public imagination from police primarily because people have street interactions with police officers but less daily contact with prosecutors’ offices. That distance can keep the actual function of prosecutors elusive, preserve the perception that they are effective agents of public safety, and shield them from some of the criticism that has been wielded against police both historically and into the present day.
“One of the questions we always ask people who are claiming to be progressive prosecutors is, ‘Will you commit to decline to prosecute certain things and to reduce your office budget?’” Sisay said. “Because otherwise your purpose is to prosecute people in jail. So if you’re not actively reducing your budget and declining to prosecute, then being a ‘progressive prosecutor’ is an oxymoron.”
Groups like S&P hope that demands to defund the police will extend to prosecutorial offices if those connections are made more clear, which is critical given the deep financial ties between prosecutors’ offices and mainstream anti-violence organizations. Last year, S&P released “No Good Prosecutors,” a zine that details how prosecutor offices receive funding via both the city budget and asset forfeitures. In FY 2021, New York City allocated $125 million to the Manhattan DA’s office, which as of June 2017 also had $730 million in federal and state asset forfeiture funds. The zine outlines how that funding then gets funneled toward not just staffing, but a variety of different initiatives, such as the Manhattan DA’s Criminal Justice Investment Initiative (CJII), which has received over $415 million as of 2019.
According to CCJII’s 2020 Annual Report, $41.7 million has been redirected toward nonprofits that serve survivors of domestic violence and gender-based violence. S&P writes that “while this may seem like a promising advancement to some, this channeling of money actually chains these organizations to prosecutors specifically, but also the City’s criminal legal system more broadly.” The zine authors note that these organizations remain silent around cases of criminalized survivors, illustrating how “the nonprofit model discourages biting the hand that feeds it, and so many of these organizations choose proximity to carceral power and money over being in solidarity with the most marginalized survivors the system abuses.”
The relationship between these service providers and prosecutors’ offices can also deter survivors themselves from seeking the assistance they need when attempting to leave abusive situations. Among the provisions in many of these grants is that these organizations must work with local law enforcement, meaning that survivors interested in getting assistance from these organizations are first required to file a report to the police. This further entrenches false assumptions about the efficacy of police and prosecutors in dealing with domestic violence and helping survivors feel safe.
“You can literally go into these domestic violence organizations, and there are police officers or individuals from the prosecutor’s office who are permanently [stationed] there,” said Sisay. “[But] the reason many people do not come forward about the abuse that they experience is because oftentimes it’s at the hands of intimate partners—people they love—so the idea of having to report to the police in order to get services scares people away.”
That fear is only compounded for survivors who are also engaged in other activities that are criminalized, such as sex work. In an effort to seek assistance and protection from abuse, those survivors recognize they themselves might be subject to arrest. For abolition feminists, who view the carceral system not as a way to curb domestic violence, but as a continuation of it, these limitations only prove how ineffective it is to combat domestic abuse by partnering with law enforcement and prosecutors’ offices.
The road to abolition feminism
The ties between prosecutorial institutions and domestic violence organizations has been entrenched in criminal law dating back decades. Between 2002 and 2018, 87 Family Justice Centers opened across the country, many with grant money from the Department of Justice. In Nassau County, New York, grounds are being broken for the county’s first Family Justice Center, a project that was developed with the help of former interim DA Joyce Smith, who now sits on DA Bragg’s team.
In “Gender-Based Violence, Law Reform, and the Criminalization of Survivors of Violence,” Leigh Goodmark, law professor and director of the Gender Violence Clinic at the University of Maryland Carey School of Law, explains that even the 1994 Violence Against Women Act (VAWA) should be understood primarily as a funding bill that funnels money into the criminal legal system, not toward domestic abuse survivors. Goodmark writes that in 2019, two of VAWA’s largest programs channeled $268 million to courts, police, prosecutors, and community-based agencies that support and advance law enforcement’s mission.
“VAWA has promoted criminalization in other ways,” writes Goodmark, “by defining intimate partner violence using the language of the criminal law, creating new crimes of intimate partner violence, and predicating eligibility for grant funding on the adoption of mandatory or preferred arrest policy.”
While carceral feminism purportedly seeks to protect survivors, it actually leads them to being caught in the criminal legal system when they seek avenues for self-defense. That criminalization and unwillingness to believe survivors occur especially in cases where survivors don’t adhere to what Goodmark describes as ”victim stereotypes” that frame the “perfect victim” as meek, docile, and white.
“The legal system is confounded by women who fail to fit victim stereotypes—who use force to defend themselves or who are angry, for example,” writes Goodmark. “Such women face a hostile legal system disinclined to believe their claims.”
Black women, like McCarter, certainly evade this stereotype, and the racial dynamics of her relationship with her ex-husband Murray, who was white, further complicate it. According to a 2014 analysis of FBI data conducted by the Urban Institute, in homicide cases where the offender was a woman and the victim an adult man, those involving Black women were far less likely to be justified when the victim was white as opposed to cases where the victim was Black. While 13.5% of homicide cases involving a white woman offender and a Black male victim were found to be justified, only 2.9% of homicide cases involving a Black woman and white men were.
Advocates for McCarter and others facing similar charges say that carceral feminist approaches will always adversely impact survivors because the criminal legal system draws a steadfast line between those who enact harm and those who endure it. Sisay of S&P says that many of the women she is in contact with who are currently incarcerated at New York State’s Bedford Hills Prison are also survivors of domestic violence, sexual violence, and abuse and were imprisoned for their acts of self-defense.
“[They] had the audacity to try and survive that situation and because of that, now, they are the aggressor and they are the ones being prosecuted,” Sisay said. “There’s no room for understanding that it is a very nuanced situation people find themselves in and the things they need to do in order to survive.”
That lack of nuance holds true in cases not involving survivors of domestic violence as well. As Holly Krig, an organizer with Moms United Chicago, a grassroots group that has been pivotal in organizing defense campaigns for criminalized survivors, wrote in Truthout, “these efforts have also challenged people to think about all of incarceration as a criminalization of survivors of one form of violence or another, whether that violence be family-based violence, police violence, or the violence that is poverty.”
Expanding these critiques of how the carceral system responds to violence of all types can open the opportunity for abolition feminism which, as Goodmark describes, “repurposes the money, time, and energy now being poured into the criminal legal system to rebuild community ties, envision strategies for addressing violence that do not involve the violence of the state, and implement those projects. Rather than making the private public, as early anti-violence advocates sought to do, abolition feminism makes clear the connections between state violence and ‘private’ violence.”
In practice, that could look like diverting funds away from entities like local prosecutors’ offices and directly into grassroots organizations that support survivors of domestic violence. By removing law enforcement ties, these groups can offer more protection for survivors who need urgent assistance and care but who understandably may not wish to report to the police or risk arrest for defending themselves.
While McCarter’s story illuminates the urgency of abolition feminism, the outcome of her case will far precede the opportunities and possibilities that such an approach would create for other survivors. McCarter’s next hearing is on April 5 at which her trial date will be set. Advocates continue to place pressure on DA Bragg to dismiss the charges against McCarter and make right on not just his past tweets, but also his overarching commitment to ending the unjust prosecution of survivors.