The Appeal Podcast: Reframing The Bronx 120 Raid

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Transcript

Adam Johnson: Hi welcome to The Appeal, I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always you can subscribe and rate us on iTunes.

In April 2016, the NYPD in concert with the FBI and Homeland Security descended onto two housing projects in the South Bronx, arresting scores for a so-called gang raid. The media swooped in and hyped it up, praising the military-like take down. The problem even according to federal prosecutors own account is that less than half of those arrested were actually in a gang. In addition, the case was full of overreach, racist media coverage and an overly broad guilt by association prosecution. Today we are joined by City University of New York Criminal Law Professor Babe Howell to discuss the fallout from the Bronx 120 raid long after the cameras and headline seeking media has gone home.

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Babe Howell: Because gang policing does not require as stringent definitions of what gangs are or who you label a gang member, I did anticipate that they would continue profiling the same communities and the same segments of those communities that they had been profiling and stopping and frisking routinely. So what you have is a world in which they are selling this new narrative. ‘We are not policing all black and brown young men.’ ‘What we are doing is targeted policing, what we are doing is precision policing.’ ‘We are bringing these gang raids against the violent individuals who drive violence in these communities.’

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Adam: Thank you so much for coming on the show Professor.

Babe Howell: Thank you for having me Adam.

Adam: So there was this big media splash, media focused raid on several housing projects in the Bronx that was marketed as the biggest gang raid ever. ICE agents due to emails revealed by George Joseph showed that they had viewed this in many ways as a media spectacle. This was kind of a win. Some activists have called this the new stop-and-frisk in the sense that it’s this new buzzy thing we could do to stop crime. After the 120 arrested for the largest gang raid ever, New York Daily News calls them quote unquote “unrepentent gang bangers” sort of this categorically evil set of people. Cut to three years later you release a report showing that most of that was false or at the very least primarily exaggerated and you found out that even according to the federal prosecutors’ own logic that less than half the people arrested in the so-called gang raid were actually in a gang, which would seem like a necessary condition of being a gang raid. Can you talk about the gap between how this Bronx 120 was sort of initially sold and how it really played out once the chips fell where they may?

Babe Howell: Right. So Preet Bharara announced this take down on April 27, 2016 and he said that they were taking down 120 who were into violent gangs in the Bronx. So it was announced as targeted. It was praised as the face of precision prosecution and targeted policing. And the allegations were that 120 who were included in those indictments were all members of two violent gangs. And that those violent gangs had been responsible for nearly a decade of shootings, slashings, robberies, etcetera in the Bronx. I spent the last three years working on this, looking very closely to see were those, were those claims true. And they’re very untrue. Half of the people in this gang raid were not in either of the two gangs. Two thirds of them, 80 of them, were not convicted of conduct based on violent offenses, violent conduct.

Adam: And so it was mostly petty drug and weapons related things. Is that correct?

Babe Howell: At least, I mean, yes, about 80 of them were convicted based on drug offenses. And one person’s petty may be someone else’s not petty. So what you have is 98 of them were not convicted of possessing a gun. And of the 22 convictions that had gun possession, only five or six of them were accused of actually using or discharging those guns. So yes, what we’re talking about is 120 picked up in a gang raid, the public was told that they were violent, the defendants were treated as if they were violent. They were incarcerated almost uniformly without the possibility of bail. A few of them, the prosecutor consented to release on bail, but then too they had house arrest. So their freedom was totally taken away based on these allegations. And it turns out that half of them were not gang members and two thirds of them had no violence and only one in six was alleged to have discharged a weapon. And then finally only a half a dozen of them were linked to any of these homicides that were mentioned in the cases and some were already solved. So bottom line, they claimed that they were cleaning up the biggest two gangs and that the gangs had terrorized the neighborhood, but their own allegations, the pleas that were taken and the sentences imposed all show that no, these people really were swept up because of allegations of affiliation, but not many of them, you know, they sold marijuana in gang territory or sold some other controlled substance in gang territory, but weren’t even members of these groups. And many of them had been punished before. So it was, it was a media spectacle, but it was not a take down of violent gangs that had been causing mayhem in this neighborhood.

Adam: Right. So they, they used, very controversially, they really used this kind of overbroad RICO statute, that’s the Racketeering, Influencing and Corrupt Organization Act. A law that was created extensively to fight the Italian mafia in the seventies is going after what some have described as kind of teenage kids for the most part. Not to kind of trivialize the offenses that were there, but we’re not really talking about sort of Godfather type stuff here. And yet this RICO was used in a fashion which some had seen, is kind of overly broad and in many ways this affected their ability to defend themselves. It affected their ability to get out on bail. Can we talk about the use of RICO and whether or not you felt it was at all justified in this case?

Babe Howell: Right. I think it’s not. It’s been, RICO has been upheld by courts for the use against street gangs, but that was initially controversial and I think the decision was wrong. The hallmark of the RICO conspiracy should be a criminal enterprise that affects the legitimate economy and the interstate economy. This was designed for the Mafia. This was designed for white collar criminals who manipulate markets. This was designed for the kind of organized crime that affects society broadly and that needs federal prosecutors to go after it. When you turn it to use against crews, street gangs and kind of informal, um, associations of kids, you’re dealing with structures that have no hierarchy, that have no rules. Most of the, when there is crime associated with these groups there are no shot callers. No one is saying go out and kill those people. It tends to be personal beefs or people going off and doing their own thing. So the notion that we have an enterprise is, given the way the RICO statute is written, it’s a plausible legal interpretation of the statute but truly not what the goal of RICO was when it was passed in the first place. And using it against these kids makes it essentially impossible to defend. I mean your situation is, suppose I am in a crew. I grew up with these kids 13, 14, 15 we started, you know, making rap videos, when we were 14 we gave ourselves a name and the NYPD say that that is a crew. Which is essentially what’s happening in these groups. You know, 2Fly and Big Money Bosses, they also sang music and essentially like ‘okay I am a member of this group’ or suppose I joined a fraternity for that matter. ‘I am a member of the fraternity.’ I’m part of the association and maybe I bring in the alcohol for the parties and in that way support organization. It is not necessary to actually commit the offenses if you are supporting the RICO enterprise. That said, in these federal prosecutions generally they did said if they were claiming that Babe Howell was a member of the crew and participated in the RICO conspiracy, they would say that I sold marijuana on behalf of the gang and in order to help, um, dominate that territory or something. So they would generally point to some conduct. That’s why I say 80 of them were only convicted based on nonviolent conduct because in the pleas, each one had to say like, ‘this is what I did.’

Adam: Right. And so RICO makes it so they’re all sort of guilty. What is the current status for those who were caught up? What is the current status of the Bronx 120 trials? How many of them have been convicted, acquitted, pled out? What’s the, just to get a sense of what the, the end game was there?

Babe Howell: Okay. So there were 120 in the original two indictments, there were three nolle prosequi, the prosecutor declined to prosecute three defendants. Other than that, the other 117 were all convicted. There were two misdemeanors at the prosecutor’s agreement and then 115 felony convictions, and there were 115 pleas and only two trials. Each of the people who went to trial was convicted of felonies. One of the really worrisome things here too is looking at the criminal history of these 120, two thirds of them had no prior felony convictions. So they’d grown up, they’d been surveilled and targeted in this very under resourced community, and yet they had no real criminal history going into this case, but they were all in a position where they could either try to fight these RICO charges and face sentences of 20 or life or take whatever sentences were offered. So many, many of them took felony convictions. About 22 or 23 got time served, another 20 or so got sentences less than two years. So there were 115 felony convictions, but at least 60 of these defendants who are supposedly a violent crew reeking mayhem, had never had a previous felony. So they’ve created 60 poor black kids and they were almost all black, who have felony convictions, who had never ever been in that sort of trouble. And on that note, many of these convictions were also based on prior conduct. So for example, one of the poster boys for the case, that had actually caused the death of Sadie Mitchell in a shooting in 2009. It was an accidental killing. He was shooting to scare away some other kids who were chasing him. But the bullet went into her home and killed her. She was 92 years old and at that point he was arrested and prosecuted in state court and got a sentence of 14 years and he was re-prosecuted in this case for the very same act. So even we’re seeing people who are prosecuted for violent acts, often it’s a repeat prosecution. So many of these felony convictions that you’re getting out of this case, you’ll have someone who sold marijuana, which is a misdemeanor, but if you do it on behalf of a RICO conspiracy, that’s a felony. So they will have gotten their misdemeanor in state court or they might’ve even gotten a day or two of community service with no conviction and then turn around and get a felony based on the prior conduct from two, three, five years before.

Adam: Okay. So I think most people don’t know that, but effectively you’re getting retried for the same crime, a new crime because of some criminal conspiracy that’s being alleged.

Babe Howell: Right. Double jeopardy does not prohibit a prosecution for conduct that has additional, uh, elements.

Adam: Okay. So we’re kind of in many ways, well, we’re kind of contriving crime where there isn’t any.

Babe Howell: Right. We’re calling it a new crime when it’s the same crime.

Adam: Let’s talk about the tactics that were used in the raid, which I think most people have a hard time visualizing. This had been going on for a few years, but this was kind of the Superbowl of these gang raids. Ah, you had these kind of dozens of officers, FBI, Homeland Security, ICE, NYPD of course, this kind of, you know, wrap around Oakleys, Tom Cruise haircut, kind of Jack Bauer want-to-bes rolling in on this public housing effectively militarizing what is just a normal apartment complex, right?

Babe Howell: Right. There are helicopters overhead-

Adam: Helicopters, the media is of course waiting, literally riding along or waiting in the bushes, which of course is, what a coincidence that is. The pre-dawn raid to kind of give it a Zero Dark Thirty feel. Now, one person died in this raid. It was a person by the name of Geovanni Martin who was running away, even though he wasn’t a target of the raid, I think he had an outstanding warrant and he fell to his death from a fire escape. Can we talk about these over the top militarized tactics and what the, I guess the point of this is to sort of, by definition, if I’m using these kind of Zero Dark Thirty tactics, the implication is that these people are this militarized gang that I’m effectively raiding the, you know, a compound in Abbottabad and not going into an apartment complex in the South Bronx. To what extent do you think there’s a PR spectacle to the nature of these raids?

Babe Howell: So I think it’s a, you know, between 99 and 100 percent PR, we know how to make arrests and there are far safer ways to do so then to break down doors in homes, then to bring SWAT teams etcetera into communities. In New York, in this particular raid, yes someone plummeted to their death thinking that they were being sought out in this pre-dawn raid. Many, many people were traumatized. We’ve had similar raids across the country and some jurisdictions have said, ‘we are going to stop doing these kind of SWAT raids’ because people do defend themselves. They believe someone’s breaking into their home. Police officers have been killed, pets have been killed. Many human beings have been killed in these raids and they’re not necessary. If I have a warrant for someone’s arrest there are a couple of options. One, which is typical in white collar cases, is I can just simply call them and ask them to turn themselves in. Another is that I can watch where people are coming or going and pick them up in a situation that is much easier to control then to break into someone’s house. The militarized aspect is very much a media show that is designed to garner support for these massive takedowns and it is a real problem because the NYPD pivoted from stop-and-frisk to gang policing. And you mentioned that earlier some people call it the new stop-and-frisk. I think I was probably the first one to anticipate this because gang policing does not require as stringent definitions of what gangs are or who you label a gang member, I did anticipate that they would continue profiling the same communities and the same segments of those communities that they had been profiling and stopping and frisking routinely. So what you have is a world in which they are selling this new narrative. ‘We are not policing all black and brown young men.’ ‘What we are doing is targeted policing, but we are doing is precision policing.’ ‘We are bringing these gang raids against the violent individuals who drive violence in these communities.’ But what my report shows is that’s just not true.

Adam: Right. There’s this militarization of the whole thing. These are no longer New Yorkers or citizens these are combatants, right? That’s the whole-

Babe Howell: Right. I mean it’s the new, we have the war on drugs, we have Broken Windows, we have stop-and-frisk. It’s just the new narrative that continues the war against the very same communities. And it’s one that’s incredibly appealing. You know, it’s, it’s kind of teflon. Who’s against gang raids, who could be opposed to targeted and precision policing of the most violent of the violent?

Adam: It’s like targeted precision airstrikes. It just sounds so anodyne.

Babe Howell: Yeah. And many, many people who have opposed other kinds of policing that they see as a race based or overbearing have lined up behind this. But they’re the same people who would say ‘we shouldn’t prosecute marijuana or nonviolent drug cases’ but here what they’re doing is they’re wrapping up 100 of those cases with a handful of individual violent acts and bringing in military equipment and we are in a world where crime is at an all time low, juvenile crime is at an all time low. What we’re dealing with is many police, many prosecutors, very little crime and very little violent crime. So, you know, they’re turning a handful of already solved homicides into massive indictments.

Adam: Right. They’re kind of reverse engineering a conspiracy. From your estimation, obviously this report made a splash, got people talking. Do you feel like in your world or anything outside of affecting policy cause he, like you mentioned the sort of Bill de Blasio, Preet Bharara, these kind of extensively liberal figures, MSNBC staples are supporting this right? Of course, white liberal racism-

Babe Howell: And Cy Vance is as well.

Adam: Cy Vance, yeah.

Babe Howell: There was 103 wrapped up in just two homicides in Harlem. So he spearheaded it in New York.

Adam: Right. So exactly. And so, you know, white liberal racism is nothing new. Stop-and-frisk had a lot of buy in from the same sectors. But in your opinion is, is there any kind of increased skepticism or shifting the narrative around gang raids or are we just going to do the thing where the people who supported it write a mea culpa in The Atlantic fifteen years from now like they did with stop-and-frisk, you know, with, with The Daily News. What is the, is there anyone who’s looking at this critically based on the work activists have done in the work you’ve done?

Babe Howell: There are signs of real organization around this issue around the world. Amnesty International did a great review of the London gang database. Chicago and California have audited their databases, we’ve asked our inspector general here in New York to look at our gang policing and gang prosecution and I do think that there is hope that we will kind of overturn this narrative and unpack what’s happening inside it and realize, wait a minute, this is another kind of over policing of black and brown people that we would never tolerate for white people. We would never say, ‘oh, I’m going to, in 2016, see what your 24 year old was doing when he was 18 and what his friends were doing and hold him responsible for everything they’ve done in the last six years.’ Like that is not something we except and I’m very hopeful that folks will unpack this and just on the note of is this white racism? I don’t think that’s quite white liberal racism. I don’t think that’s quite the explanation. I actually think they buy their own narratives and, you know, start out believing that they’re sweeping violent gangs and then maybe this report will help them to turn around and realize, ‘wait a minute, you know, we kind of outsourced our duty to use our discretion and make very sophisticated charging decisions to gang intelligence units. We collaborated with them and we did more harm to the communities that we hope to protect.’ I mean, at the base of what they would say about why they’re doing this, and I think they believe this, is that they’re trying to protect communities of color. Unfortunately, they’re the same prosecutors who don’t protect them from red lining. They did nothing about the mortgage crisis. They are not enforcing tax or environmental laws or all sorts of other laws that could actually protect and that are very much a province of prosecutors, especially in this day of of low violent crime. If we want to protect communities, we can really try to provide resources and give people fair opportunities to succeed.

Adam: Yeah, I want to be clear, without adjudicating the good intentions of anyone I guess what I mean by the similarities with stop-and-frisk is when stop-and-frisk and Broken Windows were first presented, they were put in these kinds of sterile liberal terms, sort of scientific terms. And, you know, I think a lot of the people who supported those weren’t necessarily knowing they were actively engaging in an extremely racist regime. I think that that’s the sort of beauty of this, of how these things work, right? You sort of, you launder the same things and you kind of reinvent them and you put them in these kinds of sterile concepts and I think that makes them more politically digestible for people. But what’s interesting is that no matter what happens at the end of the day, it’s always black and brown people getting arrested, strangely, that seems to be the common denominator.

Babe Howell: I think there’s a very huge danger to this narrative though that exaggerates violence in black and brown communities. And most people are not paying attention to what happened three years later. They have no idea that 120 people did not terrorize these communities. And it really does kind of give support to folks who still are very concerned about black and brown criminality. Even in a world where the statistics show that violent crime is at all time lows. So we’re blowing an opportunity to decarcerate to invest in communities and instead we’re just ripping them apart and holding people responsible for things that that took place years before. And we’re perpetuating a narrative that does play into some of the very real racial fears that are driving our society. Uh, some of the more reactionary segments of our society.

Adam: Professor Howell, thank you so much. That was fantastic.

Babe Howell: Thanks. Take care.

Adam: Thanks to our guest Babe Howell. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Twitter and Facebook pages and you can always rate and subscribe to us on iTunes. The show is produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.