Abstract
Excerpted From: T.J. Braxton, Deconstructing the Gang Menace: Gang Policing and Police “Expert” Testimony in New York City, 15 Columbia Journal of Race and Law 1337 (May, 2025) (260 Footnotes) (Full Document)
In New York City, the gang member is feared, vilified, and romanticized. The New York City Police Department (NYPD), the media, elected officials, and courts have all played a role in casting street gang members as some of the most dangerous people in society. But who exactly are these so-called gangsters? The answer is highly racialized: An overwhelming ninety-seven percent of the NYPD's Criminal Group Database (CGD) are Black and Latino men. Young men, in particular, have been the primary subjects of police surveillance and criminal prosecution, as seventy-eight percent of the individuals included in the CGD were twenty-seven years old or younger at the time of their entry into the database. Recent gang-related indictments have included children as young as sixteen.
The NYPD defines a gang as a criminal group with a common name or identifying symbol. Despite a clear criminality requirement, the NYPD adds individuals to the CGD without any evidence of criminal behavior. While many sociologists agree that criminal activity is the premier source of social cohesion for gangs, alternative gang definitions intentionally omit the criminality criterion. By decoupling gangs and criminality, this conception allows gangs to be viewed through a social constructionist framework. From this perspective, gangs are better understood as a form of safety and a form of resistance deployed by marginalized youth to combat their social disempowerment. Rather than being defined by criminal behavior, gangs offer youth a sense of belonging and opportunity that impoverished families and underfunded schools do not. This gang conceptualization recognizes how oppressive social structures create the conditions for gang association, and it also avoids further criminalizing minority and disadvantaged youth who are perceived, whether accurately or not, to be gang members.
A 2022 study conducted by Rachel Swaner sheds light on the social constructionist theory of gangs and the role of gang membership in New York City. Interviews with 287 young New York City gang members revealed that the participants used gangs as a means of survival, not strictly as a means of engaging in criminal activity. Their decision to join a gang “was largely a reaction to the inequities and humiliations they face on a daily basis from the police, unemployment, and poverty.” Although joining a gang was an effort “to survive in the face of these daily injustices and threats to their existence,” doing so only compounded “their vulnerability to being discriminated against, getting caught up in the criminal legal system, and experiencing interpersonal violence.” While some of the participants did resort to selling drugs and carrying weapons, many of them also sought “better lives, lives without guns, lives where they can get jobs that allow them to support their families, and lives where they reside in safe communities.” Swaner's study illustrates how one could seek out gang membership for protection, opportunity, and belonging without necessarily engaging in criminal activity. The criminal justice system, however, continues to reinforce a hostile and punitive world for gang members.
The NYPD would benefit from a more nuanced understanding of gangs if it wanted to address the root cause of any real or perceived gang problem. But it is unclear whether the NYPD's goal is crime prevention or merely intelligence gathering. There is no question that gang violence devastates the communities where it takes place. However, the NYPD's response to this devastation is equally destructive, as it upholds longstanding practices of racial surveillance and criminalization. Not only that, but the NYPD's flawed conception of gang membership and activity is given “expert” authority in the courtroom, and the wealth of gang intelligence that the NYPD gathers is weaponized against criminal defendants without constraint. While the admission of police officers as gang experts is a powerful prosecutorial tool, it is tainted by prejudice and unreliability. It is but another way racism makes a home within the criminal justice system, and another tactic used to criminalize Black and Latino men by virtue of their identity and associations.
As suggested previously, surveillance is the foundation of the NYPD's gang policing model. Although the NYPD touts itself as a pioneer of ““precision policing,” its gang surveillance methods are far from precise. The identification of an individual as a gang member is facilitated by racial profiling akin to stop-and-frisk, and underlying gang investigations are corrupted by problematic tools, such as the CGD. After audits of similar gang databases in Los Angeles and Chicago revealed a myriad of fundamental deficiencies, including racial bias, falsified data, and a lack of procedural mechanisms to challenge one's identification in the database, numerous groups called for an audit of the CGD. The New York City Department of Investigation (DOI) agreed to conduct an audit in 2018. After months of delay, the DOI released its report in April 2023. The report identifies a number of dangerous and alarming practices around the NYPD's use and operation of the database, and it makes seventeen recommendations that address problems related to public transparency, criteria for inclusion, the inclusion of minors, and more. Although the report implicitly recognizes the ways in which the CGD facilitates the racialized surveillance and oppression of New Yorkers, it concludes that the CGD is not a source of harm. Its critics, however, argue that this conclusion is utterly false--“The truth is simple: the NYPD must abolish this database.”
As flawed as the CGD may be, the database is only part of the larger problem that targeted Black and Latino men of New York City face. Alleged gang members who are arrested and wish to contest their criminality at trial are faced with an insidious prosecutorial practice--the admission of NYPD officers as “gang experts.” Under New York evidence law, gang evidence can be admitted for a wide variety of reasons and with few restrictions. As for the scope of a police officer's testimonial evidence on gangs, officers can speak to anything beyond the knowledge of the ordinary juror. This generous standard is even more alarming considering these officers rely on the suspect information contained within the CGD, and approximately 10,000 officers have access to the CGD's activation data.
Overall, the NYPD's use and operation of the CGD combined with the courtroom practice of admitting police officers as gang experts has created serious criminalization concerns, particularly for Black and Latino men. With the pretext of widespread gang crime and a public misconception that gang membership alone is indicative of violent criminality, the NYPD has utilized a policing tactic that is race-based in practice, yet race-neutral on its face. Even further, this same racial bias is then translated into the courtroom via the use of police expert witnesses. Judges are exceedingly deferential to these experts despite their inherently suspect methods of policing and surveillance, and their testimony which can cover an exceedingly wide scope of information. This creates two major problems. First, this testimony is unfairly prejudicial, as it allows prosecutors to capitalize on the implicit biases of both testifying officers and jurors, and further fuel the racialized stigma surrounding gang membership and activity. Second, this testimony is unreliable, as it risks supporting the conviction of potentially innocent, non-gang- affiliated individuals by coupling the same stigmatization tactics with the overbroad and extremely suspect evidence included within the CGD.
The obvious solutions to these problems are to abolish the CGD and prohibit police officers from testifying as gang experts. However, these solutions may not be feasible. The NYPD has a history of opposing and obstructing any meaningful reform, and the DOI's “no harm” conclusion regarding the CGD likely protects it from further government scrutiny. Additionally, the admission of police officers as expert witnesses is a deeply rooted practice that judges will likely be unwilling to change given the professional status of the police force and structural biases within the criminal justice system. There is, however, a solution that mitigates the prejudicial effect of police gang expert testimony and exposes its unreliability, which is the introduction of nonpolice gang experts by the defense.
This Note will proceed in three Parts. Part I provides an overview of gang policing and prosecution in New York City, highlighting changes in policing tactics over time and the current law on police gang expert testimony. Part II outlines the racial implications of police gang expert testimony, focusing on prejudice and unreliability. Part III advocates for the admission of nonpolice gang experts to counteract the prejudicial effect and unreliability of police testimony.
[. . .]
Gang violence is a serious issue, but so is justice and ending oppression. Black and Latino men in New York City are currently at the center of a fallacious gang menace constructed by the courts, the NYPD, the media, and elected officials. To make matters worse, when alleged gang members are arrested and choose to contest their criminality at trial, this gang menace is given immense evidentiary power through the prejudicial and unreliable testimony of police “gang experts.”
To truly deconstruct the gang menace, every actor must play their part. The courts must refuse to give police officers expert authority on gangs. The NYPD must abolish the CGD and end its racial profiling practices for good. The media must stop presenting young Black and Latino men as senseless super predators. But most importantly, New York City's elected officials must invest in marginalized communities and address the structural failures that are the root causes and main drivers of gang violence. Only then will the gang menace lose its power and cease to justify the oppression of New York City's Black and Latino men.
Unfortunately, such a radical deconstruction of the gang menace is idealistic. While this deconstruction may not be feasible on a broad scale, it may nonetheless be feasible within the courtroom. Nonpolice gang experts can mitigate the prejudicial effect and expose the unreliability of the dominant police narrative. Not only can these experts promote greater truthseeking within the criminal process, but they can shed light on the gang menace and its problematic implications. Gang members, after all, are human beings. The least the criminal legal system can do is afford them the fairness that every human deserves.
J.D. Candidate 2025, Columbia Law School.
