Focused Deterrence: An Alternative Justice System in South Philadelphia
Written by: Meredith Manchester, ’18
What initially sounded like an effective tactic in combatting gang violence is, in practice, impacting the lives of several innocent young men via mere “guilty by association” charges. Read on to learn more about Philadelphia’s Focused Deterrence Program and the personal stories of Nashon Smalls and A.B.
When asked how he felt after the judge ordered him not to attend graduation, Nashon Smalls[1] reasoned, “[i]f somebody didn’t let her [the judge’s] son go to his graduation because of something somebody else did, she would be sick.”[2] Her son, however, was not a young black man living in South Philadelphia, would never become a target of Philadelphia’s Focused Deterrence (FD) program, and would therefore never be subjected to what the Philadelphia District Attorney’s Office has deemed as its “own set of rules and regulations,” where Nashon is “guilty by association.”[3]
FD, a violence-reduction strategy implemented mainly in South Philadelphia, is based on the national model outlined in the National Network for Safe Communities’ (NNSC) implementation guide, and on David Kennedy’s book, Don’t Shoot: One Man, A Street Fellowship, and The End of Violence in Inner-City America.[4] Such programs have been implemented in over fifty cities across the country, promising tough law enforcement as well as social services to those interested.[5] The foundational principle is that in order to combat violent crime in urban areas, law enforcement—meaning prosecutors and police departments—should address groups rather than individuals, as most violence is group-related.[6]
While a recent news article has cited FD’s lack of social services as its fatal flaw,[7] the problems go much deeper. For starters, the model itself tramples on the Right of Association protected by the First Amendment.[8] Per FD’s model, which includes enforcement action, if Nashon is involved in a shooting, all of Nashon’s fellow gang members receive sanctions, formally known as an enforcement action[9]. These sanctions include increased police surveillance, revocation of probation, high bail, and aggravated sentences on any open cases, regardless of whether the individual participated in the alleged gang.[10]
For instance, A.B. was a senior in high school, maintained good grades, and had a scholarship to a four-year accredited university.[11] His mom had recently been incarcerated, and he was presumably acting out by smoking pot, jumping a turnstile, and skipping school, each of which constituted a violation of his probation.[12] Although the prosecutor admitted that these were not considered major violations, he requested that the client be put in juvenile detention rather than being permitted to complete his senior year of high school, his alleged gang was the target of an enforcement action.[13] The Commonwealth then called Officer Matthew York, a member of the South Gang Task Force, to testify regarding the defendant’s gang affiliation and the activities of other gang members.[14] Even though the Commonwealth did not allege that A.B. had anything to do with the underlying shooting that triggered the enforcement action, FD protocol required that, since he was determined to be a member of the group responsible for the shooting, he be punished for it.[15]
FD’s policy is to issue sanctions to individuals for simply belonging to a group, or “mere membership” of a group, as opposed to criminal involvement in a group. Punishing mere membership has been forbidden when applied to Communists,[16] Klansmen,[17] and Nazis,[18] and should likewise be forbidden when applied to “HBlock,” “Wilson Park,” and other alleged gangs in South Philadelphia.[19] However, the most devastating aspect of FD—the flaw that proved fatal for Nashon—is the power it gives to two institutions that have proven in desperate need of accountability: the Philadelphia Police Department[20] and the District Attorney’s Office.[21]
FD created the South Gang Task Force (SGTF) to map out gang territories and keep a list of, according to Officer York, 1500–2000[22] primarily black men,[23] whom they have identified as gang members. There are not specific criteria that must be met before someone is put on the list,[24] and, according to former social services director Reuben Jones, FD rejected his proposal to implement a “step-down” procedure whereby people could earn their way off of the list.[25] Jones said he worked with several clients who did everything asked of them for three to four years—deactivated their social media sites, engaged in social services, and stayed out of trouble—yet remained targets of FD law enforcement.[26]
As such, whereas the PPD has made only modest improvements towards complying with a six-year-old mandate to stop its racially charged stop and frisk practices,[27] FD has given officers new labels with which to articulate their suspicion. In South Philadelphia, a black man in a high crime neighborhood can now be branded a potential gang member in gang territory. For example, a recent police report read: “At this time police [were] travelling . . . in a gang infested area . . . Police observed a male operating a bicycle on the sidewalk and stopped the male for investigation.”[28]
If someone’s name is already on the list, the harassment is worse. Officer York stopped S.B. 89 times in just three years, or once every other week.[29] Although Officer York only had reason to arrest him after the 89th stop, he used these encounters as proof that S.B. was, similar to Nashon, a dangerous gang member.[30]
Moreover, because of the PPD’s use of “link analysis”—using databases to check for possible connections to victims—individuals listed as gang members may automatically become persons of interest for crimes suspected to be gang-related.[31] For instance, one defense attorney relayed that his client, another young “gang member,”
is really starting to feel overwhelmed by the police presence in his life. It was sad—he’s a very low-key/unemotional guy, and he was tearing up talking about how scared he is of the police right now. He says he feels like he’s being harassed . . . and that the police were hounding him about some shootings that have taken place in the area lately.[32]
There is also evidence that the supporting intelligence is deeply flawed. One detective indicated that a substantial amount of the SGTF’s information may not be traceable to specific sources,[33] police officers not part of the SGTF have offered “counter-intelligence,”[34] and some of the information presented by FD has been internally contradictory. The same hand sign, for example, has been used to identify members of two different gangs.[35]
This invasive policing and dubious intelligence have been compounded by prosecutorial indiscretion. FD dragged Nashon through their alternate justice system for nearly fourteen months.[36] Nashon was initially arrested after police raided his house, looking for evidence from a recent gang-related shooting.[37] The police never found what they were looking for, but the DA’s Office subsequently charged Nashon with two sets of unrelated crimes, neither of which would ever make it to trial due to lack of evidentiary support.[38]
Although Nashon had no criminal record, prosecutors continually battled to keep him incarcerated before trial. They filed motions to revoke bail and house arrest several times based on alleged gang-related incidents that Nashon was not even purported to be responsible for.[39]
Administrators from Nashon’s school, his basketball coach, and his culinary teacher all vouched for his good character and contributions to the community.[40] But, according to Officer York’s testimony at Nashon’s first bail hearing, this teenager was not just a current gang member, but a gang member for life.[41] While Officer York initially testified that he largely based his opinion regarding Nashon’s gang membership on “years worth of intelligence-gathering from numerous sources: ATF, FBI, criminal intelligence, juvenile probation . . . talking to teachers and counselors at the schools,”[42] he later conceded that “I don’t gather information from the community, and quite frankly, I don’t care what other people’s opinions are. We look at what they put on social media.”[43]
Before Nashon’s last charge was dismissed, the prosecutor strongly urged the court to consider the evidence presented, not in the context of the law, but in the larger context of the dangerous gang member the SGTF had determined Nashon to be.[44] The presiding judge, however, decided to stick to the law.[45] Determining that the admissible evidence did not come close to meeting the legal standard for trial, the judge did not even give the defense attorney time to argue her position before ruling in Nashon’s favor.[46]
Ironically, FD deprived Nashon of the very opportunities that the program is purported to encourage and provide. As he alternated between jail and house arrest, Nashon was robbed of all the aspirations he had for his senior year: playing basketball for recruiters, finishing his certification in culinary arts, maintaining employment, and attending graduation.[47] Moreover, as a condition of his house arrest, the judge ordered Nashon to move out of South Philadelphia, wiping out his mother’s savings.[48] Without ever having to convict him of a crime, FD derailed Nashon from the trajectory they are supposed to be pushing people towards. No amount of additional funding for social services would have saved him.
FD is far from the “redemption and hope”[49] it was promised to be. It is simply one big enforcement action, using predatory policing and over-zealous prosecution to harass and incarcerate poor men of color with no evidence that it actually reduces gang related violence.[50] David Kennedy, the criminologist who developed the FD model, claims that legitimacy in the criminal justice system is the means by which we can create sustainable reductions in crime.[51] This legitimacy will never be realized when black men are being found guilty by their associations, while law enforcement continues to find immunity in theirs. Such a disparity should, as Nashon said, make us sick.[52]
[1] The author changed this individual’s name to maintain confidentiality.
[2] This author has had sustained contact with Nashon from January, 2017, to present. Whereas the specific date of each conversation has not been recorded, any information gathered from such conversations will simply be noted as follows: Conversations with N.S., Target of Focused Deterrence (Ongoing) [hereinafter Conversations with N.S.] (emphasis added).
[3] Transcript of S.P. Sentencing Hearing at 39, Commonwealth v. S.P., (June 18, 2015) (51CR00153692013).
[4] Transcript of Y.B. Sentencing Hearing at 22–23, Commonwealth v. Y.B., (Jul 8, 2016) (51CR00059782014) [hereinafter Y.B.]; see also National Network For Safe Communities, Group Violence Intervention: An Implementation Guide IX (2015) [hereinafter NNSC]; David M. Kennedy, Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America (2011).
[5] NNSC, supra note 4, at 111.
[6] Id. at 3.
[7] Maura Ewing, Philly’s Gang Violence Strategy Doesn’t Work. Here’s Why, Injustice Today (Dec. 21, 2017), https://injusticetoday.com/former-lead-social-worker-says-philly-violence-reduction-strategy-fails-to-deliver-on-promises-a2b8a95df8af.
[8] Roberts v. U.S. Jaycees, 468 U.S. 609, 612 (1984).
[9] NNSC, supra note 4, at 36 (“Enforcement actions . . . seek to apply legal sanctions, informal sanctions, or uncomfortable attention to as many of that person’s group associates as possible. This shows group members that they will be held collectively accountable for violence committed by a fellow member.”).
[10] Caterina G. Roman et al., Philadelphia Focused Deterrence: findings From the Impact Evaluation 1 (2017).
[11]Transcript of A.B. Revocation of Probation at 3-6, Commonwealth v. A.B., (March 3, 2014) (51JV00048142012).
[12] Id. at 3–4.
[13] Id. at 4.
[14] Id. at 5–18.
[15] See id. at 4.
[16] Yates v. United States, 354 U.S. 298 (1957).
[17] Brandenburg v. Ohio, 395 U.S. 444 (1969).
[18] Collin v. Smith, 578 F.2d 1197, (7th Cir. 1978).
[19] Although the cases cited in footnotes 16-18 address freedom of expression, the cases implicitly protect the right of association. In Com. v. Abu-Jamal, 521 Pa. 188, 214–15, (1989), the Pennsylvania Supreme Court listed several cases decided by the United States Supreme Court, “overturning convictions based on statutes criminalizing either the mere expression of views or membership in, or association with, a group advocating or employing illegal conduct such as violence without proof of the individual defendant’s participation in any illegal act.” Brandenburg v. Ohio, 89 S.Ct. 1827, (1969); Noto v. United States, 81 S.Ct. 1517, (1961); Scales v. United States, 81 S.Ct. 1469 (1961); Yates v. United States, 77 S.Ct. 1064, (1957).
[20] See e.g. In January 2017 the City of Philadelphia settled a lawsuit with Phillippe Holland, a black college student who was simply delivering a cheeseburger, for $4.4 million after two police officers fired 14 bullets into his vehicle. After a short suspension, the two officers returned to street duty. Holland, on the other hand, still has bullet fragments in his brain and a permanent seizure disorder. Mensah M. Dean. Amid Questions, Officers Cleared of Shooting Innocent Deliveryman, The Inquirer: Daily News (Apr. 24, 2017), http://www.philly.com/philly/news/pennsylvania/philadelphia/Officers-cleared-of-shooting-philippe-holland.html.
[21] See e.g. The last elected district attorney, Seth Williams, was indicted on “29 counts of bribery, fraud, and honest services fraud,” eventually pleading guilty to one count of bribery. Jeremy Roebuck. Philly DA Seth Williams Pleads Guilty, Goes to Prison, The Inquirer: Daily News (June 19, 2017), http://www.philly.com/philly/news/crime/philly-da-seth-williams-xxxxxxxx-20170629.html.
[22] Y.B., supra note 4, at 29.
[23] Transcript of S.B. Sentencing Hearing at 48, Commonwealth v. S.B., (Feb. 5, 2015) (51CR00088712014) [hereinafter S.B.].
[24] Y.B., supra note 4, at 25.
[25] Interview with Reuben Jones, Former Social Services Coordinator, Philadelphia Focused Deterrence, in Philadelphia, Penn. (Oct. 6, 2017).
[26] Id.
[27] Latest Stop-and-Frisk Data Shows Modes Improvement, American Civil Liberties Union of Pennsylvania (May 2, 2017) https://www.aclupa.org/news/2017/05/02/latest-stop-and-frisk-data-shows-modest-improvement-philadel.
[28] Philadelphia Police Department Arrest Report for R.R., Commonwealth v. R.R. (Oct. 11, 2017) (1717040914).
[29] S.B., supra note 23, at 44.
[30] Id.
[31] See Chris Palmer, A Midnight Shooting, News-Crime (Oct. 13, 2017, 5:11 PM), http://www.philly.com/philly/news/crime/philly-gun-violence-police-shooting-intel-20171013.html.
[32] Email from Public Defender 1, Defender Assoc. of Phila. (Nov. 14, 2017).
[33] Motion to Admit Evidence for Commonwealth, Commonwealth v. C.R. (Jan. 28, 2013) (51CR00139742011). The underlying crime in this case occurred before FD began, but the detective testified in the present tense regarding their database. Moreover, FD incorporates a lot of intelligence from before the actual program began. See Officer James O’Neill Expert Report for R.W. at 4, Commonwealth v. R.W. (Nov. 26, 2014) (51CR00033822012).
[34] Motion to Admit Evidence for R.W. at 22, Commonwealth v. R.W. (Dec. 1, 2014) (51CR00033822012); Interview with Public Defender 2, Defender Assoc. of Phila. (Sept. 14, 2017).
[35] Discovery for L.S., Commonwealth v. L.S. (March 15, 2017) (51CR00260812016) VS. Officer Matthew York Expert Report for J.J., J.J., W.C., J.W. at 17, Commonwealth v. J.J., J.J., W.C., J.W. (April 12, 2017) (CR0002942 & 2946-2016, CR0002943 & 2947-2016, CR0012810 & 0012845-2015, CR0012811 & 0012846-2015).
[36] Secure Criminal Docket for N.S., Commonwealth v. N.S. (51CR00026942016).
[37] Conversations with N.S., supra note 1; Philadelphia Police Department Search Warrant 197564.
[38] Secure Court Summary for N.S., Commonwealth v. N.S. (51CR00026942016).
[39] See Motion for Bail Revocation for N.S. at 2, Commonwealth v. N.S. (Dec. 19, 2017) (51CR00269242016); Author’s Observations at Commonwealth’s Motion for Emergency Bail Revocation for N.S., Commonwealth v. N.S. (Feb. 3, Feb. 6, Feb. 8, 2017) (motion litigated over the course of hearings on three different dates).
[40] Email from Attorney for N.S., Defender Assoc. of Phila. (Aug. 3, 2017).
[41]Commonwealth Bail Motion at 57, Commonwealth v. N.S. (Oct. 21, 2016) (51CR00269242016) [hereinafter N.S. Bail Motion].
[42] Id.at 24-25 (“I mean, in my opinion, he’s never going to leave the group. I mean, there’s been—you’ve seen how long those social media posts are. There’s some longer than that. He’s not going to leave.”).
[43] See N.S. Bail Motion, supra note 39, at 42. At the time, Nashon’s social media accounts were similar to those of many young men who have become accustomed to poverty, violence, and incarceration, as he was vocal about his support for his friends (many of whom who were behind bars) and beef with guys from other neighborhoods. However, if there was any ATF or FBI intelligence regarding Nashon’s gang involvement, it was never presented to the court.
[44] Defense Motion to Quash, Commonwealth v. N.S. (Nov. 9, 2017) (51CR00269242016) (author’s observations).
[45] Id.
[46] Id.
[47] Conversations with N.S., supra note 1.
[48] Id.
[49] Bryan Lentz & Andrew Wellbrock, Focused Deterrence in Philadelphia, Soc. Innovations J. (Nov. 3, 2013), http://www.socialinnovationsjournal.org/sectors/89-government-policy/1397-focused-deterrence-in-philadelphia-fighting-crime-with-redemption-and-hope.
[50] Roman et al., supra note 10, at 1.
[51] Kennedy, supra note 4, at 221–226, 229 (2011).
[52] It is unclear if FD policies have changed or will change under the new District Attorney, Larry Krasner.