Ending Surveillance-Based Gang Prosecutions

In 2014, Taylonn Murphy, Jr. was part of the largest mass arrest in New York City history. 103 young people believed to have gang connections from the Grant and Manhattanville Houses were swept up in the bust. At the time, Taylonn was charged with assault and criminal possession of a weapon. Two years later, Taylonn’s charges had been upped to second degree murder. Even though the prosecution had no physical evidence of Taylonn’s involvement in any crime, he was convicted. At just 21 years old, he was sentenced to 50 years to life in prison. How did this happen?

The case against Taylonn depended on informants trading testimony for shorter sentences and circumstantial evidence derived from social media. These practices have been codified by Manhattan DA Cy Vance into a technique, what he calls Intelligence-Driven Prosecutions and a database, referred to internally as the Crime Prevention Sytem. Both of these vaguely-named tools are supported by Palantir software, developed specifically to offload prosecutorial work to algorithms. Taylonn’s case may be extreme, but it’s only one example of the processes used by Vance to use surveillance and technology to bring the weight of the criminal justice system down on young Black and brown men under the guise of prosecuting gangs.

Are Intelligence-Driven Prosecutions Really So Smart?

After he was first elected in 2009, Cy Vance immediately set to work creating a variety of processes that his office describes as “data-driven.” In Vance’s own words, his approach was inspired by Bill Bratton’s broken windows policing strategies.

These processes include a unit that scours social media for information, and a database that tracks what’s found. Among the information that is tracked is supposed gang membership. Vance has not revealed how someone is tagged as a gang member in his database, but it’s safe to assume that his criteria are similar to those of the NYPD for their own database:

[I]ndividuals can be added to the database if they “admit” to being members of a gang or if they are identified as such by “two independent and reliable sources.” In the absence of identification, the NYPD may choose to add an individual to the list if they meet at least two of a wide-ranging list of criteria that include one’s presence at a “known gang location,” association with “known gang members,” social media posts, scars, tattoos, and the use of gang “signs” and “colors.”

The NYPD’s so-called ‘gang database’ may be biased, but it’s actually more transparent than Vance, who refused to provide even a racial breakdown of his own database.

What’s more, there is no way for someone to see the information about them in Vance’s database, nor can they contest the information if it is incorrect. There’s no clear definition for what a “gang” is or what it takes be tagged as a member of one.

Worst of all, much of the information is gleaned in “debriefs” held by Vance’s office with defendants. According to Kerry Chicon, an ADA who helped develop the processes under Vance:

We pull people arrested on low-level misdemeanor charges, maybe two or three a week. We read them their Miranda rights. About 80 percent of them will talk. If you speak to a 16-year-old, they might tell you, ‘This kid is running things, this kid is a hanger-on.’ That’s how we find out information like whether a gang has changed their name.

Vance’s office is questioning teenagers arrested for low-level crimes, extracts information from them, and then uses that information to build cases and to increase penalties against defendants, just like what happened to Taylonn. Charges are increased, bail is requested or increased, plea bargains are denied.

I’ve seen this myself in court: when a defendant’s file is marked with a gang alert stamp, it’s kept in a separate pile. Unlike the other cases, gang alert cases are not offered an immediate disposition. In order to be offered a plea bargain, those defendants will have to offer up information about their friends or family. Many of them won’t be offered a plea at all and will only be left with the option of pleading guilty to the higher charge or going to trial, spending months, if not years languishing on Riker’s Island if they can’t pay bail.

The 103 defendants from the Grant and Manhattanville Houses sweep were all considered gang members by law enforcement. Of them, 94 took guilty pleas. Many of them traded information for lighter sentences. This is how the Vance’s database grows — defendants considered to be gang-affiliated are coerced into exchanging unverified information to access plea bargains that are available to other defendants as a matter of course. Once the DA’s office has the information, Palantir takes it from there.

Palantir: The Force that Powers Gang Prosecutions

Palantir is probably best known for powering ICE’s raids. Founded by Peter Thiel, a hedge funder and Facebook board member, Palantir specializes in “big data analysis.” As a private company, none of its software or algorithms are subject to public oversight. Palantir’s work with Vance’s office is entirely opaque — the connections it draws changes outcomes for defendants both in and out of the courtroom, but Vance’s wide legal discretion means that none of this work is on the record or challengeable by those who are affected.

Jay Stanley, of the ACLU, believes that Palantir’s widespread monitoring is a “true totalitarian nightmare.” Palantir’s software is essential to the recent massive ICE raids and also for the kinds of mass arrests of young men of color that Taylonn Murphy was caught up in.

What Does It Mean to Be Tagged as a Gang Member?

Overwhelmingly, the people tagged as “gang members” are Black and brown men. The NYPD database is 98.9% people of color, including 66% Black and 31.7% Latinx. While Vance has not released the racial breakdown of the people his office considers to be “gang members,” from what I’ve seen in court, this is true of his office, as well.

In the popular imagination, gang membership is tied to criminal activity, especially violence. When a defendant is tagged as a gang member, whether it has anything to do with what they’ve been charged with, whether it’s even true, in the courtroom, that tag colors their perception by the prosecution, the judge and the jury.

“The mere use of the label renders you guilty in the eyes of the court,” said Anthony Posada, a supervising attorney with Legal Aid’s Community Justice Unit, who is representing an accused gang member in his lawsuit against the NYPD. “We’re seeing people being criminalized, found guilty by association, in court, where you’re supposed to be presumed innocent until you’re proven guilty beyond a reasonable doubt. What is happening is a practice by which assistant district attorneys are relying on the gang database to label people and prejudice their cases.”

What I’ll Do Differently

As District Attorney, I will immediately cancel all contracts with Palantir. I will stop using the gang alert system. Plea bargain and charging decisions will be based on the facts. I will not include assumptions about gang membership in any database. Each individual defendant will be treated fairly based on their own actions. For too long, men of color in Manhattan have been trapped in a system that criminalizes them by association. When I am elected DA, that system will end.