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Locked up for three decades without a trial

A New York City man has been shuffled between Rikers Island and mental hospitals for 32 years.

Illustration by Michelle Mildenberg

Locked up for three decades without a trial

A New York City man has been shuffled between Rikers Island and mental hospitals for 32 years.

Mario Ramos can’t remember much from his life before he was sent to Rikers Island. His brother Frank, visiting him in jail, tries to jog his memory, reminding Mario of the time they saw an Arnold Schwarzenegger movie together in 1986, just before Mario was arrested. But Ramos, a 60-year-old diagnosed with chronic paranoid schizophrenia, says he never saw it. He also has no clear memory of July 27 of that year—the day he allegedly shot three people in broad daylight in Washington Heights.

When Frank asks about that day, Mario gives contradictory answers. At first he says he somehow found himself in a building where someone shot at him. Then he says he was already at Rikers or “Mid-Hudson,” a reference to the Mid-Hudson Forensic Psychiatric Center, where he has received treatment. What Ramos can recall are scattered snapshots of the correctional and mental institutions where he has spent the majority of his life while awaiting trial.

In a news account of the shooting, police noted that Ramos was incoherent and seemingly on drugs. A month after his arrest, Ramos pleaded not guilty. In January 1987, Judge Howard Bell ordered Ramos to undergo a competency evaluation. He was found unfit for trial, and the next month Bell ordered him moved from jail to a secured mental facility to see if he could be restored to competency. Ramos’s available case files do not make clear whether he was deemed competent for trial during this period. But by July of that year, Bell had ordered another mental competency test, triggering the whole cycle again.

Since Ramos’s arrest, eight judges have ordered at least 31 mental evaluations and multiple doctors have diagnosed him with chronic paranoid schizophrenia. Yet because his charges are so serious—initially for attempted murder and later for two intentional murders—Ramos cannot escape the criminal justice system.

Many states set a clear limit on the amount of time they hold people with mental health issues in jails and forensic psychiatric hospitals who have not been found competent to stand trial. But in some states, including New York, authorities can keep attempting to restore a defendant’s mental capacity until the person has served two-thirds of the maximum sentence he or she would receive if eventually found guilty. Ramos’s maximum sentence is life in prison, and so he sits trapped in Rikers, serving out two-thirds of his life, an unofficial sentence with no verdict and no certain end point.

The case is an example of how people with mental health issues can get lost in the criminal justice system, unable to undergo trial or receive permanent care in a civil institution. Ramos’s court-appointed lawyer is now attempting to get a judge to release him from criminal custody, arguing that despite being unfit for trial, his indefinite detention is a violation of due process. For Ramos to be civilly committed to a mental institution or to be released to his family, his attorney needs a judge to agree to a recently filed motion, which the Manhattan district attorney’s office could choose to fight at a hearing on Friday.

Mario Ramos before his 1986 arrest
Courtesy of the Ramos family

‘Sometimes people have to do something wrong to get help’

When he talks to his family at Rikers, Mario Ramos sits back or hunches over, yawning every few minutes. His sleepy eyes rest on his 84-year-old mother, Ita, who has driven from Rhode Island to see him. When Ita and Frank ask him questions, he speaks in quiet Cuban Spanish, never uttering more than a sentence or two. Asked about what he misses about the outside world, he says, “Nada.” His head droops as he speaks. When his brother asks him to explain, he responds, “Estoy aquí.” I’m here. His chin rests on the counter looking at us through the glass divider.

Ramos’s life wasn’t always like this. Along with his brother and his single mother, he came to the U.S. from Cuba by boat in 1980, looking for economic opportunity. Ramos bounced around the country, moving from Miami to New York to Rhode Island and back to New York over the next six years. His brother says it was hard for him to find work, not knowing English, and recalls him doing odd jobs to help provide for the family.

“He had to get a job at whatever he could, anything he could make money in, fixing roofs, painting houses,” Frank Ramos, 50, recalled of their time together in New York. “It was fun. My brother was always there caring for me. He used to take me to school. We used to play baseball and sometimes we used to play card games.”

Odd jobs alone weren’t enough to pay the bills, however, says Maira Soto, Mario’s girlfriend at the time. Soto says that around 1983, they moved from New York to Providence, Rhode Island, and Mario started selling drugs. “He didn’t have any other options. It’s very hard coming from Cuba in the 1980s,” Soto said in a phone interview. “No one wanted to give [us] a job because we [didn’t] speak English.”

“He did so much for me, buy me a car, buy me jewelry. In the ’80s, the money was flying off the street,” Soto said. But the couple soon fell into using cocaine themselves and Ramos’s mental health rapidly deteriorated, Soto recalls. “The mental health issues showed itself after the drugs. He would get violent, paranoid. Drugs made him think people were coming to get him.”

Soto and Ramos eventually moved back to New York, and Ramos resorted to petty crimes to feed the couple’s habit. He tried to sell drugs, but his growing paranoia made it difficult, she said. “Black people got the territory in Harlem; in Washington Heights, the Puerto Ricans wouldn’t let him join because they knew he was crazy,” said Soto, who said she left him in 1984 because of his drug use and occasionally violent outbursts. “He thinks everybody was out to get him.”

Frank Ramos was only a teenager at the time but sensed something was wrong. He said that in the weeks before the arrest, his brother sought help by going to a police precinct. “He said something bad was going to happen, so he wanted to turn himself in,” Frank remembers. “The police wouldn’t help him because he hadn’t done anything wrong. Sometimes people have to do something wrong to get help.”

Frank Ramos, Mario Ramos’s brother, standing in a parking lot on Rikers Island
Credit: George Joseph

‘How did it get to this point?’

On July 27, 1986, Ramos was found a few blocks from where a shooting had just taken place; a purse was found on the ground nearby. Police searched the purse and found a gun that matched the ballistics report of the bullets fired in the shooting.

A New York Times article about the incident said that Ramos “appeared to be under the influence of drugs” and shot at a man “for no apparent reason,” wounding two others in the process. Ramos was arrested, and soon more charges were brought against him. The prosecution determined that the gun found in the purse was also linked to a murder that took place on July 21, six days earlier. In November, he was indicted for a second murder, from 1982.

Lawrence Levner, Ramos’s original defense attorney until he died in 2006, argued that the charges should be reduced to manslaughter. Someone with chronic schizophrenia could not commit second-degree murder, he argued, which requires intentionality. But the charges were neither dropped nor reduced.

Despite repeated stints at mental hospitals, Ramos’s health never significantly improved in the decades that followed, according to court records. In a 1993 motion, for example, Levner pointed out that Ramos had gone through seven competency evaluations, all of which found him incapable of proceeding. One doctor who petitioned the court for permission to administer antipsychotic medication in 2004 testified that during a stint at Bellevue Hospital, Ramos was “unwilling to eat food because of delusions. He believes that as a ‘disciple of Christ,’ he doesn’t need food. He has disorganized thoughts and behaviors. He is not oriented to place, time, or person (he believes he is in China, and has another name).” Another doctor confirmed this, saying Ramos told him “he has never eaten food.”

During his decades in the system, Ramos has been evaluated at least 31 times and committed to mental institutions at least 29 times by judges. He or his attorneys have appeared in court more than 236 times, as Ramos has jumped between Rikers, court, state psychiatric facilities, and back. A handful of prosecutors have handled the case for the Manhattan district attorney’s office, including Patricia Nuñez, who took over the case in 1988 and prosecuted Ramos until 1997, when she was appointed to a judgeship in New York County Criminal Court.

When contacted by The Appeal, Nuñez remembered the case as unusually drawn out. “What happened over the years is that: I get ready for trial and he would then start acting irrationally, his attorney would ask for a 730 [New York’s term for a competency evaluation], he’d be unfit, go to Mid-Hudson, they’d put him on meds, he’d be fine, he’d go back to court, we start getting ready for trial again, and [while at Rikers] he’d go off his meds, he’d get 730’d, be unfit, go to Mid-Hudson, be OK on meds, but as soon as he comes back to court [and Rikers], he stops taking them. It was just a complete cycle. That’s what happened when I was handling the case. … When I left the office, someone else took it over and I don’t really know what happened to it after that.”

It’s not unusual for patients to resist taking psychotropic medicationand the state must meet a high burden before it can forcefully medicate someone with such drugs. Antipsychotic drugs can cause numerous side-effects, both physical and emotional, including chest pain, cardiac arrest, anxiety, confusion, and depression. In criminal psychiatric institutions, doctors can apply to courts to administer psychotropic drugs involuntarily to inmates. At Rikers, health authorities are not authorized to forcibly administer drugs, said Veronica Lewin, a spokesperson for NYC Health + Hospitals’ Correctional Health Services.

Ramos has been evaluated at least 31 times and committed to mental institutions at least 29 times by judges. He or his attorneys have appeared in court more than 236 times.

The case is now on the desk of Assistant District Attorney Kerry O’Connell, who has had it since 2004. When approached at a recent hearing on Ramos’s case, O’Connell told The Appeal, “You need authorization from my press office to speak with me.” The Manhattan district attorney’s office denied that request along with The Appeal’s request for information about the case.

Peter Zimroth, a longtime prosecutor who worked in the Manhattan district attorney’s office from 1975-80 said that given the seriousness of the charges brought against Ramos, “It’s something that the government isn’t going to want to just dismiss and send away without any kind of adjudication.” But, he adds, “When you look at it now, 32 years later, you look at it holistically, and say, ‘How did it get to this point?’”

He equates it to a plane crash. “If you research why a plane crashes, typically it’s not because of one thing. It’s almost always because of multiple errors, either human or mechanical.” It’s the same issue here, he said. “You need a lot of things to happen to get to the point where you have a case that’s 32 years old. … You have the passing of the baton of the case on all these different levels from the judge, defense attorney and prosecutor—they’re not necessarily errors, but it creates a situation where you can see something like this happen.”

Nuñez said, “The fact that it was a murder indictment [made it] difficult to try to offer him a plea bargain that maybe would have been acceptable to him,” she said. “A lesser case, a lesser charge, might have been more easily resolved with some kind of plea bargain that would have gotten him out of jail. But with a murder, that’s not really something on the desk.”

Defining a ‘reasonable’ period of time

In a recent op-ed, Alisa Roth, author of Insane: America’s Criminal Treatment of Mental Illness, reported that at any given moment, more than 40 percent of Rikers’s population is mentally ill, making it one of the largest providers of psychiatric care in the country. As of April 2018, she noted, in New York City, it took, on average, 43 days to complete an evaluation, and 186 people at Rikers were waiting for a mental health competency exam. Roth acknowledged that in recent years, Rikers has opened new mental health care units with specialized programming. These units have helped detainees take the medicine they need, and driven down self-harm and use-of-force incidents. But, she wrote, these units have far too little bed space for those on the island who are struggling with mental illness.

In an email to The Appeal, Lewin, the spokesperson for NYC Health + Hospitals’ Correctional Health Services, pointed to the agency’s recently announced plans to consolidate the management of its psychiatric evaluation court clinics in an attempt to cut wait times for detainees.

When asked about the quality of care people receive in civil facilities versus jails, Lewin said, “No level of care is superior to another—care is based on the needs of individual patients.” She noted that patients who need a greater level of care than they get in jails are transferred to psychiatric inpatient units “with dedicated psychologists, social workers, mental health clinicians, and psychiatric prescribers.”

But the frequent transfer of patients can wear on their health. In Ramos’s case, it has most likely hampered his ability to be restored to competency and go to trial, explained one Rikers employee, who requested anonymity because the person was not authorized to speak about the case. The added stress of the jail environment means that prisoners’ mental health issues can worsen upon their return to Rikers, even if they have improved to some degree after a hospital stay. In about 80 percent of felony cases, detainees who have been successfully restored to competency eventually revert to being found incompetent while held in the jail awaiting their next court dates, according to a 2012 Vera Institute of Justice study of Rikers detainees.

Going on and off medication, for instance, can exacerbate a patient’s illness. “While mental health staff are aware of this risk and attempt to mitigate repeated cycles to the hospital, Mr. Ramos’s case is an example that maybe these efforts have been exhausted,” the Rikers employee said. “Giving him Jackson relief would mean that he is released or in the hospital indefinitely, and not in a violent, notorious jail,” the employee said, referencing a judicial order that would remove Ramos from detention on the grounds that he will not become competent in the foreseeable future.  

Ramos is far from the only defendant trapped in Rikers because of mental health issues, the employee said. “The fact that he’s been going back and forth so many times is a testament to the fact that people are falling through the cracks.”

New York’s failure to limit the amount of time certain defendants with mental illnesses can be held in jail and forensic institutions conflicts with the state’s constitutional obligations, defense attorneys argue. The 1972 U.S. Supreme Court decision Jackson v. Indiana found that courts can only keep people incarcerated for a “reasonable” period of time while they try to restore their mental competency for trial. The definition of “reasonable,” however, has been left to the states. A 2017 survey conducted by the National Association of State Mental Health Program Directors found that of 37 responding states, 11 said they would commit someone during competency evaluation for at most one year, eight have a limit of one to two years, six will commit someone for over three years and four said the time of detention depends on the sentence length or nature of the case itself (as in New York). Nine said they have no specific limit.

The fact that he’s been going back and forth so many times is a testament to the fact that people are falling through the cracks.Anonymous Employee, Rikers Island

State laws like New York’s, known as Article 730, which directly link the amount of time a defendant can be held during competency evaluations to the charges they face, seem to “stand just in complete contrast” to the Jackson decision, said Jenny Semmel, supervising mental health attorney for the Bronx Defenders. “Whether someone is charged with a robbery or charged with a homicide, it shouldn’t impact the question of whether or not they can be restored to competency. … I would argue that there’s due process, equal protection, all those sorts of issues that could be raised.”

Silvana Naguib, a defense attorney now based in California who has represented scores of clients with mental health issues, was shocked to learn of Ramos’s decades in and out of Rikers. “This strikes me as beyond absurd,” she said. “I would even say 10 years is absurd. To have three times that is unfathomable in its absurdity.” She questioned why prosecutors would continue to pursue the case and why judges would allow it. “You can’t continue detaining the person. There has to be reasonable confidence the person will be restored in the reasonably foreseeable future.”

The 2017 study found that competency evaluations have significantly contributed to a rise in the number of criminal defendants receiving inpatient services at state psychiatric hospitals. The study notes: “Some states are experiencing such a dramatic increase in forensic patients (in particular defendants requiring trial competency evaluations or competency restoration services) that their state hospitals are operating at, or close to, maximum capacity.”

The issue of how to handle defendants deemed incompetent may be coming to a head, explained Richard Cho, director of behavioral health for the Council of State Governments Justice Center. Officials may be “trying to do right by them by taking into account their mental health,” Cho told The Appeal, but the result can be prolonged pretrial detention. “Tying them up in the competency evaluation process often is just kicking the can down the road.” This not only jeopardizes their constitutional rights, he says, it also results in poor treatment for the patient and high costs for the state. States, he added, are “beginning to see how many resources and people are caught up in this competency evaluation process and how that bottleneck is not getting addressed.”

‘This is not a life’

Ita, Mario Ramos’s mother, wants her son to come home with her to Rhode Island, where his younger brother, Frank Ramos, is an elder care specialist and could watch over him. “This is not a life,” she says in Spanish, clutching her green and yellow Santeria necklace and looking around the bare waiting room after visiting Mario. “I don’t see the justice in the U.S.”

Ramos’s family members feel they have no say in whether he remains cycling in the system, is released to an institution, or is given back to them.

On May 18, Ramos’s attorney Michael Conroy filed a motion to dismiss the case and find Ramos permanently unfit for trial. “It seems clear at this point he’s never going to be fit,” the attorney told The Appeal in the hallway outside the courtroom. On Friday, O’Connell, the Manhattan prosecutor, will have a chance to concede the motion, or fight it.  

Ita Ramos, Mario Ramos's mother
Credit: George Joseph

Even if a judge does grant the Jackson motion in this case, Ramos could still be held involuntarily in civil commitment if authorities deem he poses a danger to himself or the public. If Jackson relief is granted, doctors for New York State’s Office of Mental Health would decide whether they want to try to hold him involuntarily, explained Michael Neville, director of New York’s Mental Hygiene Legal Service. If they decide civil commitment is necessary, the office would then apply to the court to retain him in a civil facility outside of Rikers, at first for six months, then for a year, then two years, as deemed necessary, he said. A defendant can challenge these decisions every step along the way, notes Neville, who points out that authorities sometimes use an expansive definition of what it means to be dangerous. “They could argue, for example, that provocative behavior in the outside world could cause others to fight them,” he said. “It can be very broad.”

Sitting across from his family at a table at Rikers, Mario Ramos laughs when he hears about the possibility of spending more years of his life in a hospital, even though he says it would be better than jail, where he says fights often break out. “No quiero ir pa’lla,” he says multiple times. I don’t want to go over there.

The Rikers employee argues that the case’s seemingly never-ending proceedings speak to a larger constitutional issue with New York’s treatment of defendants with mental illnesses. “The overarching issue is that he should have never been detained this long in the first place,” said the employee. “At this point, he’s not guilty of anything. Even if people aren’t sympathetic to his charges, we haven’t proven him guilty beyond a reasonable doubt in the first place.”

Even if Ramos did the crimes he has been accused of, 32 years of being held involuntarily in jail and mental hospitals is punishment enough, argues Ita Ramos. “What is the use of the justice system if you can never finish paying for the crime?”

The Appeal Podcast Episode 5: How Silicon Valley Supports LAPD Surveillance

With Appeal staff reporter George Joseph.

LAPD officers line up in front of protesters.
Lucy Nicholson / Getty

The Appeal Podcast Episode 5: How Silicon Valley Supports LAPD Surveillance

With Appeal staff reporter George Joseph.

Tech companies like Palantir are teaming up with police departments to create real time “probable offender” lists of thousands of mostly African American and Latino people. These lists, and other “predictive policing” tools, create a feedback loop, trapping people of color and the poor in a cycle of monitoring, arrests, and further monitoring. The result is a dystopian system of surveillance and pre-crime. Our guest, Appeal journalist George Joseph, got his hands on confidential LAPD documents detailing these efforts.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Welcome to The Appeal Podcast. I’m your host Adam Johnson. The Appeal is a podcast on criminal justice reform, abolition and everything in between. You can follow us on Twitter @TheAppealPod and on Facebook at The Appeal Podcast. Large corporations like Palantir, are increasingly teaming up with police departments to create what is effectively a real time rap sheet on thousands of mostly African American and Latino people throughout the country. Our guest today, George Joseph, a writer at, he got his hands on one set of these documents by the LAPD that was made in concert with Palantir. These documents are a fascinating window into the truly creepy nature of these new pre-crime tools, what they mean for privacy and due process and we’re going to have him on to talk about this and how activists are fighting back against these forces.

[Begin Clip]

George Joseph: When police are sort of being tasked to just go after specific individuals because they happen to be on a list, even though there’s no sort of reasonable suspicion or probable cause against them, it really creates the environment for those who are targeted of a kind of police state where everywhere they go, every interaction they have with someone they know in their community is being potentially documented as being potentially to watch even if they don’t know it’s being watched.

[End Clip]

Adam: George, thank you so much for joining us on The Appeal. I really appreciate it.

George Joseph: Hey, thanks for having me Adam.

[Fade Music]

Adam: Uh, so you wrote a fascinating piece in May called “The LAPD Has a New Surveillance Formula Powered by Palantir,” which is an incredibly neutral and sober headline, but really I think in many ways downplays actually how pernicious this really is and I think when we talk a lot about new surveillance technologies we’ve almost become kind of immune to them. They sort of, oh well of course we’re being surveilled, but there’s tons of, of really dangerous stuff here that I want to get into and I want to talk about the broader trend of using what is effectively pre-crime as a tool to reinforce racist and anti poor policing regimes with, with the kind of new techno veneer. So can you start off by talking to us about what your article is covering, specifically the LAPD’s Chronic Offender Bulletins and their partnership with Palantir, can you sort of set the table for people?

George Joseph: Sure. So the LAPD has had a program known as the Chronic Offender Bulletin program, um, for several years, in fact, before Palantir software even came on board to the LAPD. What the basic idea of the program is, is that in select geographic zones, intelligence analysts in the department will look at individuals who have lengthy criminal histories and other kinds of factors and then kind of create a pile of sort of top target priorities for police. Now they claim that this isn’t being done, um, you know, to explicitly arrest them. But the documents that we found and were given by a coalition known as the Stop LAPD Spying Coalition, show that they’re very clearly being, um, sort of judged based on how many arrests of these kinds of individuals they’ve made. Even though the documents make clear these people aren’t actually wanted with any probable cause for arrest. Its just sort of setting up a system in which people get arrested because they’re somehow deemed priority arrests without any probable cause or reasonable suspicion beforehand.

Adam: There’s a series of criteria, correct, that are incredibly sort of vague and if you meet certain amount of points on that criteria, you get on this, this mystery list, correct?

George Joseph: Right. There’s actually a checklist that analysts are supposed to check off to decide who has the most points and thus who is the most quote unquote “probable offenders” who should be gone after. What’s new about our article is that we were the first to report on the newest updates of that checklist, which for example, enhance some of the penalties about guns that were in the previous version of the checklist. So now it’s not just having a handgun found on you counts against you, but also any other type of gun. So we’re seeing sort of the gun criminalization panic effecting people in this very day-to-day way. Um, in addition, there’s other categories that were already there, um, from previous versions and still are there, for example, how many times you’ve been stopped by police count against you in this formula. So you are considered more high risk and thus more, um, sort of prone to surveillance if police have stopped you a bunch of times. But can you really control something like that? Obviously not.

Adam: Yeah. And this is what activists have called a quote, “racist feedback loop”

George Joseph: Right.

Adam: Now, this may seem obvious to some, but for those who it’s not, this is the way people, quote unquote, you know, “interact” with police and it’s typically based on where they live because police surveil certain parts of the city more than others. Even if you adjust for crime rates it’s almost always disproportionately places where it’s people of color, Latino and black and they’re far more likely to have interactions with the police. And thus far more likely to be on this list and thus have further surveillance and then have more interaction with the police. Um, until you go down this, this feedback loop of what is basically just a kind of harassment regime.

George Joseph: Right. And it also creates this oversampling problem where they’ll say, ‘Look, this isn’t, you know, racially biased, this is neutral,’ but you start with the initial sample, which is already based on, as activists have called, kind of biased data in terms of where police are policing, who they’re stopping, what are your obviously poor black people mostly and also Latino people sometimes. Um, but then when that sample is created, a risk assessment formula is based on that data. So that’s just the first round because then that data is collected based on those standards which have already been set based on the previous, uh, biased data. And so what you’ll find, you’ll have this oversampling problem where you’re only looking for those kind of people again, um, and you’ll find even more of them because you’re increasingly not doing kind of randomized policing.

Adam: Right.

George Joseph: And so every iteration of the risk formula will be more targeted and more biased against very specific kinds of communities. Um, so we see this ratcheting effect that has real impact on people’s lives.

Adam: Yeah, I mean anyone who’s had the misfortune of living next to a frat house where you have a bunch of 18 year olds getting wasted and jumping off the roof and a series of sexual assaults that go completely ignored by the police, knows that where the police target these, these alleged crimes is obviously deeply racialized and they try to go for the lowest hanging fruit. Um, and it seems like in many ways this is compounding this problem. There’s, there’s one quote you have from someone who was in a focus group that was commissioned by the Stop LAPD Spying Coalition for, for a report that was released in May. He said, quote, “I feel like they already know who you are by the time they stop you and give you a citation. They already know your name and who you are hanging out with.” This is obviously very dystopian stuff. Can we talk about the psychological impact it’s had on those under its charge?

George Joseph: So when police are sort of being tasked to just go after specific individuals because they happened to be on a list, even though there’s no sort of reasonable suspicion or probable cause against them, it, it really creates the environment for those who are targeted of a kind of police state where everywhere they go, every interaction they have with someone they know in their community is being potentially documented as being potentially watched, even if they don’t know it’s being watched and so people pick up on that and it, uh, affects how they feel they can move around in the world. Um, it affects the degree to which they basically just feel freedom living in day-to-day life. Um, when we talk about sort of authoritarian regimes and other countries as US citizens, we often don’t think about how those same kind of intensive day-to-day surveillance tactics are being put on people here because it’s only going to a very targeted and racialized slice of the population.

Adam: Let’s talk about Palantir, the Silicon Valley startup that was behind, that provides the technology. Palantir has been in lots of stories involving police surveillance, government surveillance, a lot of military application. Now Palantir as you know was started by, paradoxically of course, a libertarian billionaire. I’m not quite sure what that term means. In 2003, you did mention though that this is, I think somewhat interesting is that of course Palantir was also created by the Central Intelligence Agency.

George Joseph: Yeah. They invested in it.

Adam: They were the first investor through In-Q-Tel, and then it sort of went into the shadows for a while and then kind of reemerged in 2005 as a full blown surveillance company that deals primarily with things like monitoring social media and doing data analysis for these kinds of surveillance technology. Can we talk about Palantir and what other cookie jars they have their hands in vis-à-vis pre-crime?

George Joseph: Yeah, so Palantir gets a lot more attention than other kinds of surveillance software firms because it has this very kind of shadowy history of CIA funding and Peter Thiel who does weird stuff with blood and stuff like that.

Adam: Right.

George Joseph: Um, but in reality, what their software’s doing isn’t actually very complicated, um, or even necessarily that sophisticated. What they’re doing is being good at cleaning up in connecting lots of very disparate sources of data, most of which police are already collecting. But I, I don’t mean to underestimate how powerful that is because, you know, 20 years ago if a name was just in a file cabinet somewhere and a gun was in another precinct cabinet somewhere else, those, that link wouldn’t have been necessarily made. Or if it were to be made, it would take a lot more effort and just hands on investigation. Now, as all of this data is being automatically uploaded into kind of readable formats, where interoperable databases are communicating with each other and linking the data points together about people’s homes, their associates, their guns, all kinds of objects associated with them, police can, with a few clicks, map out networks and communication patterns and location patterns that they never would’ve been able to, in the same amount of time as before. So it kind of is just making much more efficient, um, police practices that have existed for a long time but would never have been imaginable today. And there are other companies doing this as well.

Adam: Right. What are those companies?

George Joseph: IBM, for example, used to have a, a, a pretty well known program called Coplink, which they recently sold to another company called Forensic Logic. I think that’s considered one of the bigger rivals to Palantir’s data software. There’s other companies like Cellebrite, which specialize in doing cell phone extraction and then with the extraction of that data, doing some of the same kind of link analyses that we see with Palantir where they’ll tie together people’s contacts and sort of make maps of their communications networks and that kind of thing. So it’s not really the software that matters as much as the ease with which police can grab data and connect data, which is what Palantir does specifically for the LAPD with this program. And because of the mass of this data, it becomes pretty powerful.

Adam: So let’s back up here in, in the people you’ve spoken to, and I know you, I know you’ve done quite a bit of reporting in this space for years now, what are the legal ramifications if any, are these police departments pretty good at kind of avoiding overt First Amendment violations or other kinds of regulations? And to what extent is the current legal literature, as it were, or the laws, catching up to this technology?

George Joseph: That’s a good question. I’m not a legal expert on, on what laws govern what’s increasingly known as “predictive policing.” Um, but what we see is that police are very careful in their language about what they’re doing when they engage in these kind of programs. So for example, with the LAPD program, they’ll give officers a printout of an individual with all their information and their face and where they’ve been stopped recently and their history, of one of these so called priority or chronic offenders. But on the sheet it’ll say ‘This is only for informational and law enforcement safety purposes. We do not have probable cause to arrest this person.’

Adam: Right.

George Joseph: So they’re winking at their officers like ‘Just say no, this guy is of person of interest, but we can’t technically go after him unless you happen to see him doing something which we’re hoping you will do if you’re constantly following them around and eventually catch them doing something.’ And we know that that’s the implication because in the slides we published, the LAPD would for example, say things like, ‘Commander should be telling their supervisors how many people from the list have been taken off and taken into custody since the week started and analysts are expected to maintain a list of sort of a deck of 12 priority offenders and then constantly clear that list and add new ones as they’re arrested.’ It is clearly like a machine driven process.

Adam: So there’s a quota element.

George Joseph: It seems like a benchmark, something like that.

Adam: Yeah, they wouldn’t call it a quota, god forbid, but there’s they, they, they give you a hit list and heavily suggest that you clear that list and the only way to clear that list is if they’re arrested, presumably.

George Joseph: Right, and officers are supposed to ask themselves, as we’ve seen these documents that we’ve published, how many arrests have we made this week?

Adam: Right.

George Joseph: Its, its all but saying it basically.

Adam: Let’s back up from LA here. I know that Palantir has engagements with other police departments, New Orleans, I think Chicago as well. The New York Daily News now that it’s changed owners is actually not quite as bad as it used to be. The Daily News had a big profile on someone who has been on the NYPD’s gang database for years. Can you, can you talk about how this dovetails with and is similar to these so called “gang databases” that we’ve talked about on this show that again are another form of kind of pre-crime under the guise of “predictive policing?”

George Joseph: Yeah. So what the gang databases do is kind of create yet another data point that counts against someone. So how it starts is that an individual who, for example, is seen to be associating with other quote unquote “gang members” or wearing certain colors, hot pink-

Adam: Right.

George Joseph:  Apparently in New York for gang members. Um, and being in gang areas, basically so many broad criteria that anyone who lives in a public housing project in a certain city like New York would be considered a gang member.

Adam: Right.

George Joseph:  Even though that status technically doesn’t mean you have committed or even are suspected of a crime legally, but that classification then puts you on police’s radar and other ways that you are never necessarily informed about. So the example in LA with regards to our story, and I think this can probably be applied more broadly, is that with the Chronic Offender Formula being an unknown gang member also counts points against you and thus encourages police to surveil you, um, and do things like warrant and gun checks on you to try to make arrests on you.

Adam: Yeah. And what, and what people don’t realize is that the criteria for being on a gang list is incredibly thin, includes hanging out at certain bodegas, wearing certain colors. Um, it’s, it’s exceedingly arbitrary. And up to the subjective analysis of whoever’s doing the monitoring.

George Joseph: Right. And the other aspect of it is, especially in New York, a lot of the evidence that is eventually brought to court, which I know you’ve talked about on other programs, are for is social media data in which young black men for the most part are taking pictures with their neighbors flashing, you know, so called “gang signs.” Um, now these just maybe things like, like a handshake with a friend that people growing up together have made up to kind of identify their block. But for intelligence analysts seeing that within the NYPD that can then be viewed differently as an organized, coherent gang symbol, which these 14 year olds don’t necessarily know as being sort of understood that way.

Adam: Yeah. I think the average person listening or let’s say these sort of skeptic listening who thinks we’re all just a bunch of bleeding heart liberals, um, I don’t think they quite understand how thin a lot of this criteria really is. Obviously the gang database we talked about is, is very arbitrary. How you get on this bulletin is based on a feedback loop, which has a lot of racist inputs. There are some libertarian groups who’ve, who’ve actually followed people around to see how many crimes the average person commits a day, minor infractions. And it’s, and it’s a lot. It’s quite a bit, I mean, from traffic violations to jaywalking to drug use. A lot of people use off prescription drugs, um, or off label drugs that there is a sense that, ‘Oh, I’m not breaking the law so I don’t care.’ But what people don’t understand is that like if you follow anyone around long enough and you monitor anyone close enough, everybody breaks the law and that the, the, the, the whole problem with this logic, the whole problem with the feedback loop is you come up with a sort of infinitely precise monitoring system that of course people are going to break some infraction somewhere.

George Joseph: But I think the issue though is that when you bring that kind of policing and that kind of high level of scrutiny to a certain population, um, let’s say in most American cities poor black people, um, young black people, what, what ends up happening is that all those smaller infractions that you just get caught for on a regular basis, jaywalking, biking on the sidewalk, smoking outside, things that young white people in different neighborhoods would never be arrested for or cited for-

Adam: No.

George Joseph: Those kind of lead up to, um, days in court that you may miss because you have work or family obligations, fines that you may not be able to pay, lots of small things that then actually lead to a real record which then makes it hard for you to get the job. And so by the time you are older and are sort of being looked at by police as a potential high-level offender, you’ve already established this rap sheet and because of that, you can’t go to the job.

Adam: Right.

George Joseph: I mean it’s already hard enough for black people because of employment discrimination in this country to get a job even when they’re as, or more qualified than similar white candidates. So what do you do? You have to do work to get a living and thus carry around a gun, probably a gun that you are unable to legally hold, but you have to do it to be able to do things like work in the drug world, work in like security worlds, stuff like that. Um, and so we should be honest that it’s, it’s not just police, uh, getting people for jaywalking or something like that. These are people who are sometimes engaging in underground economies with guns with, with things that are technically not legal because they don’t really have any other options. But when police bring this, uh, this kind of surveillance and scrutiny onto them their entire lives, it’s almost inevitable that they would have to go down that path and then they get screwed over even more so for having ended up there.

Adam: Yeah. I definitely don’t want to suggest that they were building these databases off a bunch of innocent jaywalkers. I guess my point is that when you get people on the grid young at 13, 14, you do be, it does begin the cycle that you just described, right?

George Joseph: Right.

Adam: That these sort of minor, low level infractions begin to paint one’s entire life at a fairly early age and one of the major logic behind Broken Windows and even stop-and-frisk and if you really dig into the literature, they’ll sort of tell you this, is to just get people early on the grid. If you look at that data, it really does begin to become a feedback loop.

George Joseph: Right? I think the other interesting thing about, uh, these risk formulas that police are using is that they completely toss out the idea that after you’ve spent time in a criminal justice facility, a prison, a jail, whatever, that you have done your time. So if you’ve been investigated, sentenced, convicted and then spent time in prison, supposedly a way to claim, ‘Okay, now you have a fresh start.’ But what these formulas do is say if they’re a parolee, if they’re on probation, if they have a criminal record, then those are literally points against them that should then be used to justify surveilling them. So the formulas themselves completely discounts the idea that we’re supposed to give people a fresh chance for quote unquote “doing their time.”

Adam: Yeah. You have this pre-crime and post-crime element to it. I want to pivot here to talk about what steps activists and community groups are doing to push back against these forces in Los Angeles and any other cities that would be good as well.

George Joseph: What we are seeing in a lot of cases around the country is that people are just now years after the establishment of these gang databases and these sort of new pre-crime gang sort of practices they’re only now realizing about them and that’s coming through investigative journalism that’s coming through advocates filing records requests and that’s coming just from people piecing together bits of information that they are getting on the street or at court when they’re being hit with these ridiculous conspiracy charges that tie all of them and everyone they know together for one murder that took place several years ago. So in New York, um, what I’ve seen is that a lot of community groups are trying to let people across the city who are in similar situations because they live in housing because they’re poor because they’re not white, to know that these tactics are going on and that they are likely going to affect their communities. And uh, what’s interesting about these operations is that oftentimes they’ll take years from beginning of surveillance to ending in some kind of gang raid or police operation. So you’ll have analysts monitoring these kids as young as 13, 14 years old and monitoring their social media, connecting how they say something about getting revenge on someone or how they make a hip hop video to evidence of gang activity. And so what activists are doing, I’ve noticed, is not only figuring out information about these tactics, but also trying to do teach-ins and warnings to people about how you need to understand how you’re publicly facing social media data as well as other things like your phone calls from Rikers, your letters, that kind of thing, could be used against you at some point a way down the line. And it’s hard because a lot of these kids are really young and when you’re young you write dumb stuff on Facebook.

Adam: Yeah.

George Joseph: And so these kids have the, you know, the penalty of not being able to have exactly full childhoods in the way that other people in more privileged circumstances growing up, you know, wouldn’t be penalized for making mistakes or saying brash or dump things online. Um, so letting people know about that and then kind of organizing to bring light on these practices are, are, are most of what I’ve been seeing activists in cities like New York, Chicago and LA do.

Adam: I guess I’m curious to what extent maybe trying to help out people from not being surveilled as good intentioned as it may be and as necessary as it may be, contributes to this chilling effect where we’re basically having people self monitor, self police. Um, in a way it’s sort of similar to the like, you know, videos telling people like African Americans how not to get arrested by police. It’s like you definitely understand why they, why they exist, but in a weird way, it’s kind of managing the symptoms as opposed to dealing with the disease.

George Joseph: One way that activists seem to be trying to, uh, attack that is by changing the narrative about gang policing and gang raids so that law makers and law enforcement officials aren’t awarded and sort of praised by local media and the public for carrying out these sort of big spectacle, um, operations. Preet Bharara, who is the former southern district of New York Federal Prosecutor, carried out one of the biggest quote unquote “gang raids” in the Bronx a few years ago. Um, he hasn’t really been challenged about that operation, which is much more controversial among the people it targeted then among the larger public. Um, so I think the degree to which these kinds of tactics shift in terms of their public perception could sort of shift how willing law enforcement is to go after just broad swaths of young black people.

Adam: Yeah. I, I know that you interviewed Josmar Trujillo, who is an activist in New York and he had mentioned to Citations Needed, another podcast I have, that predictive policing and these high profile gang raids were basically just a updated version of stop-and-frisk and Broken Windows that they’re kind of a techno liberal friendly version, but they’re, but the sort of effect is the same, which is, which is to create a harassment regime and the media kind of buys into these narratives. It doesn’t ask a lot of questions about who, what is a gang member, who are these people being rounded up? Why are they running teenagers on RICO charges, which was set up to stop Al Capone?

George Joseph: Right. And, uh, the whole ideology behind these two theories, Broken Windows Theory and whatever you want to call it, big data policing or intelligence driven prosecutions is the same. It’s the idea that a few identified hot spots need to be targeted or fixed or cleaned up in order to drive a long-term sort of change in crime trends. Um, whether that’s ever actually worked is obviously much debated in the criminological community. Um, but the point is that both of them understand that certain networks and communities face far more difficulties in terms of employment, in terms of just getting by. And so the response is to set up long-term surveillance practices on them that guarantee they’ll be prosecuted and locked up. That’s the kind of way that major liberal cities are dealing with their public housing population at this point.

Adam: Yeah. Its, its, in many ways criminology is limited by its own kind of epistemological scope. It says, ‘Oh, we’re just dealing with the problem as it is,’ and there’s no broad questions as to whether or not the very nature of it is racist. Yeah. It reminds me of a, of a thought experiment a professor of mine in college used to explain the sort of institutional versus interpersonal ways we interpret these things. Uh, which is that if there was, for whatever reason, if there was a psychiatrist in the Antebellum South and the 1850s who was, who had a patient who would whip slaves with a whip and he was feeling really bad about it and filling neurotic about it. I could sort of manage him, give him prescription drugs and talk him through it but I could never really questioned the institution of slavery. There’s this sort of institutional racism to the very nature in which we deal with crime and I think people who look at this like it’s just, oh, it’s just this cold computer, its just this algorithm, that they don’t understand that like by the very nature of trying to target certain neighborhoods and trying to try to jack up your numbers with quotas like you’re advancing a system which is manifestly racist however you want to cut it.

George Joseph: And one thing that, um, people who aren’t activists you often hear of, but just organizers within their communities, especially in public housing in New York will say, is that, ‘Look, you’ve taken away our playgrounds. You’ve stopped our kids from having like basic places they can hang out and engage in, in a healthy social way. Um, and we’ve been asking you to help us for years. You’ve been gentrifying neighborhoods and not giving us anything to get by.’ And then years later you just arrest all of them, um, without ever having ever tried to help on the social side of things. So I mean that’s kind of just the choice that authorities in the city are making. Um, and how, how they’re able to make that choice I think reflects on how much the general public, uh, seems to be willing to, uh, tackle this issue.

Adam: Yeah. And this was seen the most starkly of course in Chicago with a $100 million police training academy, while Rahm Emanuel has closed, the Mayor of Chicago has closed dozens of schools that there’s, there seems to always be money for policing and never money for anything else. All right, well I think on that note, George Joseph, thank you so much for coming on.

George Joseph: Hey thanks for having me Adam.

Adam: Thanks to our guest George Joseph. George is a writer at This has been The Appeal Podcast. Remember, you can follow us on Twitter @TheAppealPod and on Facebook at The Appeal Podcast. I’m your host Adam Johnson. This show is produced by Florence Barrau-Adams, executive producer Sarah Leonard. Thank you so much for joining us, we’ll see you next week.

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Cuomo the Merciless

New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors.

Chris Hondros / Getty

Cuomo the Merciless

New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors.

In 2015, New York’s governor, Andrew Cuomo, announced the creation of an Executive Clemency Bureau to identify people in the state’s prison system who might be worthy of commutation. The announcement sparked hope among the system’s approximately 50,000 prisoners, their families, and advocates that they might soon rejoin their families.

Clemencies can take two forms. There’s a commutation, or the shortening of a person’s prison sentence, which allows an incarcerated person an earlier parole hearing or an immediate release. The other form is a pardon, which expunges a person’s criminal conviction altogether (which governors have used to prevent people from being deported). Governors have the power to issue an unlimited number of clemencies.

What does being worthy of commutation entail? According to Cuomo’s criteria, an applicant must prove that he or she has  “has made exceptional strides in self-development and improvement; has made responsible use of available rehabilitative programs; has addressed identified treatment needs; and the commutation is in the interest of justice, consistent with public safety and the rehabilitation of the applicant.”

Cuomo’s criteria also requires that a person have been sentenced to at least one year in prison, that they had already served at least half of that sentence, and are not scheduled to appear before the parole board within the next year.

Cuomo encouraged attorneys and law firms to donate pro bono hours to help incarcerated people prepare their petitions. Many heeded the call and devoted significant time and resources to helping dozens of people imprisoned across the state.

But these efforts have not proved fruitful.

In December 2016, Cuomo had granted only seven commutations. One was to Judith Clark, a former Weather Underground member initially sentenced to 75 years to life; her commutation allowed her to appear before the parole board immediately instead of waiting until 2056. (Clark was denied parole and remains in prison.) Another commutation granted an immediate release to Valerie Seeley, a domestic violence survivor sentenced to 19 years to life for the fatal stabbing of her abusive boyfriend in 1998, an act that she has always maintained was in self-defense.

About one year later, Cuomo’s office announced more commutations—this time, it was only to two men. He has not granted any clemencies since then. His office did not respond to The Appeal’s queries about the possibility of future commutations.

Cuomo has, however, issued a greater number of pardons to those who have already served their time. He has granted 140 pardons to adults who were convicted of nonviolent felonies as 16- and 17-year-olds, thus expunging their felony records. He also granted pardons to 18 others who might face deportation because of a criminal record.

Kathrina Szymborski oversees the pro-bono commutation efforts at the law firm Patterson Belknap Webb & Tyler, which has donated the equivalent of $1.5 million in pro-bono hours to clemency applicants. She and her colleagues rejoiced when one client, 42-year-old Michael Flournoy, who had served 21 years of a 25-to-50-year sentence, received clemency in December 2017. But, she told The Appeal, “we have many deserving clients whose applications are still pending.  Our clients are dedicated and hard-working, so they continue to gather letters of support, receive stellar job reviews, and complete rehab and educational programs.  They’re trying to be part of society and enrich their communities as best they can from where they are, some by mentoring other prisoners, others by writing articles for publication in various newspapers and magazines. We feel that they’ve served their time and their further incarceration serves no purpose, so we find the lack of action on these applications disappointing.”

While Szymborski notes that her clients remain hopeful, Cuomo’s lack of action has disillusioned others. Steve Zeidman is the director of the Criminal Defense Clinic at the CUNY School of Law as well as Clark’s attorney. While the clinic is working with about 25 people on clemency applications, he has received hundreds of requests for help. “For so many people, clemency offered the hope that after decades of punishment their quantifiable and undeniable evidence of personal growth and transformation would be recognized,” he told The Appeal, “that they would be given the chance to live outside the prison walls. As I have now been told on several occasions by those who have had their hopes of clemency reduced to pipe dreams, false hope is cruel; it is worse than no hope.”

Some advocates charge that Cuomo’s criteria are too stringent. “Cuomo, under the state constitution, has complete discretion and ultimate power to commute people’s sentences at any time and for any reason,” points out Mariame Kaba, a founding member of Survived and Punished, a network that works with criminalized and imprisoned survivors of gender-based violence. “We are perplexed by the rules he set for himself. They’re incredibly narrow and leave out an incredible number of people.”

Survived & Punished protest outside a Cuomo fundraiser.
Survived & Punished

Moreover, outreach has been haphazard. While word of Cuomo’s commutations initiative spread quickly in some men’s prisons, many incarcerated in women’s prisons were unaware of it. “We’re in direct contact with 30 people inside women’s prisons,” stated Kaba, who noted that three-quarters of those women had not heard of the governor’s clemency initiative. Seeley, the only adult domestic violence survivor among the governor’s 12 commutations, told The Appeal that, between 2015 and her release in January 2017, she had seen no posters or announcements about the clemency project. More recently, 61-year-old Melisa Schonfield, who is serving a five-year sentence after attempting to hire an undercover officer to shoot her daughter’s abusive ex-husband, only learned about the governor’s project—and the possibility of pro-bono assistance—after her family paid a private attorney to help with her clemency petition. Schonfield, whose health has been declining while in prison, told her daughter that there were no announcements about the governor’s project in the prison’s common areas or even in the law library, where she recently spent many hours working on her application.

Cuomo’s record on commutations contrasts poorly with that of another governor of a deep blue state. In 2017 and 2018 alone, California’s departing governor, Jerry Brown, issued 49 commutations, enabling more than a dozen people sentenced to life without parole to become eligible for parole and—for at least two women who survived domestic violence —walk out of prison after decades behind bars. Even John Bel Edwards, Democratic governor of the very red state of Louisiana, has issued 22 commutations during his first year in office, 10 more than Cuomo has issued during his entire 7½ years as governor.  

Perhaps most notably, the number of Cuomo commutations are small by his state’s historical standards. During his two terms from 1975 to 1982, Governor Hugh Carey granted 155 commutations. While the number of commutations went into steep decline after Carey’s tenure, his successor, the current governor’s father, Mario Cuomo, still issued 37 commutations. Even Republican governor George Pataki, who eliminated parole for violent felonies and reinstated the death penalty, issued 32 commutations. In other words, not that long ago, commutations were much more commonplace than Cuomo is allowing them to be now. And advocates are pushing for them to become more routine again. “The governor can free anyone at any time for any reason,” Kaba reminded. She notes that although Survived and Punished focuses on supporting survivors of gender-based violence, “we would be happy to see him free anyone at this point.”

“Surely, there are numerous people among the 52,000 in New York State prison who merit clemency; who are deserving of that measure of mercy,” said Zeidman, Clark’s attorney. “Consider the 630 people serving life sentences for crimes committed when they were 17 or younger.  Or the more than 9,000 people serving life sentences, many of whom will die long before they ever see a parole board.  Or the many elderly and infirm people behind bars.  Or those who endured years of intimate partner violence.”

Seeley, who endured eight years of abuse from her boyfriend before stabbing him in self-defense, agrees. “I appreciate that Cuomo granted me clemency in 2016,” she said. If not for the governor’s action, Seeley would still be in prison awaiting her first parole hearing, which was scheduled for September 2018. Instead, in January 2017, she was able to reunite with her daughter, two grandchildren, and 90-year-old mother. But, continued Seeley, noting that the governor’s last commutations were for men, “I would like to see him grant more clemency to women and really give them a second chance.”

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