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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.

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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.

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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Responses to Violence Must Move Beyond Policing

The solution to problems like unsolved homicides, especially in communities of color, cannot be reinvestment in institutions that wage violence against them.

Demonstrators confront police during a protest over the death of Laquan McDonald on November 25, 2015 in Chicago.
Scott Olson / Getty

Responses to Violence Must Move Beyond Policing

The solution to problems like unsolved homicides, especially in communities of color, cannot be reinvestment in institutions that wage violence against them.

Responses to failure often take the form of reinvestment in what is failing. When Wall Street fails, the banks receive support in the form of bailouts; when the healthcare system fails us, the insurance companies get to shape the system’s “reform.” So when police fail to solve crime, they get usually get even more support, more funding, more “manpower.” Name a crisis in policing—from police killings of civilians to corruption to high rates of homicides—and policing itself is always held up as the answer. After the killing of Freddie Gray in Baltimore, amid skyrocketing homicide rates, officers robbing residents, planting drugs, and even selling them, the police union said that the cause of the city’s grave “tipping point” was too few cops.

Language also has everything to do with how we understand this predicament. What we describe as failing is often working just as it has been intended to. Unfortunately, policing provides us with countless examples of this, among them low clearance rates for unsolved crime. “Clearance” refers to a crime cleared by arrest or cleared by “exceptional means” such as when an the perpetrator of the offense is identified but “elements beyond law enforcement’s control prevent the agency from arresting and formally charging the offender.”

The Washington Post  recently “identified the places in dozens of American cities where murder is common but arrests are rare.” The Post further noted that:

Police blame the failure to solve homicides in these places on insufficient resources and poor relationships with residents, especially in areas that grapple with drug and gang activity where potential witnesses fear retaliation. But families of those killed, and even some officers, say the fault rests with apathetic police departments. All agree that the unsolved killings perpetuate cycles of violence in low-arrest areas.

Detectives said they cannot solve homicides without community cooperation, which makes it almost impossible to close cases in areas where residents already distrust police. As a result, distrust deepens and killers remain on the street with no deterrent.”

Unsurprisingly, the overwhelming majority of the low-arrest zones are primarily low-income Black areas. This is inseparable from the legacy of intentionally withholding resources from Black communities and constricting their growth. Discriminatory practices like redlining and Jim Crow laws may not look like they did decades ago, but their effects are still being felt to this day. Thus, we can see the intention to let crime go unsolved not as just a faulty aspect of policing, but as an inherent characteristic of policing in a society predicated on racial capitalism. It’s not the work of policing to solve crime as much as it’s the work of policing to solve crime according to the racial guidelines by which this society criminalizes and otherizes. This takes shape in oppressiveness like the conflation of Black people with gangs, Islam with terrorism, or Latinx people with cartels. Crime is something that has always been associated with blackness and therefore being Black has become a crime. And when blackness is a crime, “solutions” for the Black community are focused on criminal justice, like clearance rates.

“Chicago’s education advocates use a phrase suitable for this [policing] context: ‘broke on purpose,’” Stephanie Kollmann of Northwestern University’s Pritzker School of Law, told me. “It means the government misdirects its resources in order to achieve and justify its policy objectives—cutting some programs, demanding resources for others. Austerity rhetoric is very favorable to policing: Programming, youth recreation, and community services will always be able to be cut back as luxuries, while enforcement is increasingly viewed as a necessary investment as conditions continue to deteriorate. Here in Chicago, scarcity logic was also used in order to simultaneously starve police misconduct investigations and invest in suppression squads and surveillance activities. Pouring more money into a structure like that only makes those problems bigger: more reliance on abusive tactics and less oversight, resulting in more mistrust and fewer closed cases. Then you’re right back to saying you need more.”

Measuring the health of a community on metrics like crime rates and criminal convictions is problematic. In 1975, there were nearly 2,000 murders in New York City but the city’s poverty rate was 15 percent which, as Harper‘s notes is “a figure lower than it has ever been since then.” It is also problematic because such metrics function under the same racist framework in which policing is grounded. This is part of the reason we need to delegitimize the police. It doesn’t make any sense to argue that the same police who are failing by not arresting enough are arresting too much in the communities that they treat like occupied territories. It’s contradictory to say that we have a problem with racism in policing and then say that the solution to low clearance rates is more policing. We cannot fix what was made to be broken or reform what is purposefully violent against us. If we do so, we increase the legitimacy of the institution of policing.

The mythology of the criminal justice system misleads us to believe it is driven by a desire for justice. But discussions around safety that pull us away from the crime of policing under racial capitalism are not true to actual progress. By moving beyond thinking about issues like clearance rates, we can start thinking about providing resources for communities. That would be a world where crime decreases because people have what they need instead of one in which police are something people think are so necessary. Furthermore, we should ask ourselves why such conversations about crime don’t include the police themselves, who absolutely murder with impunity. We shouldn’t have conversations about murder going unpunished that do not include the police because they provide a model of unaccountable violence in our society.

More policing and more surveillance are not solutions to violence. Carceral logic does not address the problems our communities face. Responses operating outside the institution of policing and in the interest of the material well-being of the people are needed. This means not relying on police to solve conflict or social problems but instead pushing to divest funding from them and putting those funds into education, mental health, and other resources for the places we live. Abolition is necessary, but for it to happen we must be willing to do the work of ensuring our communities have what’s needed. Without that, the possibility of achieving something better than what we know now is compromised by what we lack. The answer lies in destroying inequality through resource reallocation, not reinvestment in the violence waged against us that we’ve long been told is necessary for our well-being. What’s truly necessary is attaining the resources that our suffering communities need to thrive, and since we know policing has not brought us that, we should forgo what’s not working and create a world anew.  

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