Conspiracy represents the immense sweep and racialized harms of the American criminal system in particularly stark form. Yet it remains widely used by prosecutors and largely uncriticized by scholars, advocates, and lawmakers. Conspiracy sweeps people in who could never be prosecuted on their own — a veritable “guilt by association.” Originally created to address financial crimes and organized crime, conspiracy charges are now most commonly used to ensnare broad swaths of young men of color, whether because they boast (unrealistically) about wanting to deal drugs (NFL player Sam Hurd), live in public housing and know other young men who may or may not claim “gang” allegiance (the Bronx 120), or advocate for racial justice together (the Young Lords and Black Panthers). The breadth and coercive force of conspiracy make it a potent weapon against communities who do not fit in, and/or who resist the (white, middle-class, capitalist, individualistic) American norm, as well as a powerful means of enforcing both cultural and geographic racialized boundaries. Clarence Darrow’s 1932 warning is even more prescient now: “If there are still any citizens interested in protecting human liberty, let them study the conspiracy law of the United States.”
“Guilt by Association”
Like so many aspects of the modern carceral state, conspiracy’s history is entangled with slavery, including the use of forced cooperation, informants, and even torture to produce evidence. Tellingly, conspiracy law of this scope does not exist in other similar legal systems. It persists here as another aspect of the uniquely enormous, entrenched, and racist criminal system, giving prosecutors immense discretion to select targets and weaponize massive state resources and force — sting operations, riot gear, “no–knock” warrants — to ensnare entire communities. Requiring only proof of an agreement (and sometimes an overt act that is indicative of the supposed agreement), and bringing evidentiary workarounds and harsh minimum sentences, conspiracy law is designed to force even more pleas than the regular American criminal legal system, often as the result of “cooperation,” taking the form of Stasi–like informing.
The justification for all this is the dangers of group crime. And yet, so often the danger is no more than a racialized specter. Take the high–profile Bronx 120 case from a few years ago; it began with 700 police officers in riot gear shutting down a neighborhood in the Bronx and arresting 120 young men, none of whom were white. Although it was touted by then S.D.N.Y. U. S. Attorney Preet Bharara and the New York Police Department as “the largest gang crackdown in New York City history” to catch the “worst of the worst,” many of the defendants were ultimately revealed to have no gang affiliation and almost all of them were ultimately convicted of conspiracy only to commit minor offenses, including marijuana crimes, rather than the violent crimes with which they had been demonized in the media. This doesn’t mean, however, that the men’s lives were not ruined, or that the state mission was not in some way accomplished. “The process is the punishment,” and conspiracy operates not so much to punish major group crime as to silence, control, force out physically (often of gentrifying neighborhoods), and keep “in their place” marginalized groups. While scholars such as Deborah Archer and Monica Bell have revealed the ways in which transportation policy and policing maintain geographic segregation, conspiracy law remains surprisingly unexamined, yet works towards the same goal — maintaining the boundaries of space, race, and Americanness.
Two current conspiracy cases — those of “trap” star/rapper and community philanthropist Young Thug (aka Jefferey Williams) and “Stop Cop City” protestors — starkly illustrate the coercive sweep and racialized excesses of conspiracy. Perfect storms of out–of–control prosecutorial discretion and carceral social control related to segregated city spaces, the cases have already made history for their brutality and excess, yet they continue unabated. The indictments are long, to say the least — in Young Thug’s case eighty–eight pages charging twenty–eight people and in the Cop City case eighty–seven pages and sixty–one defendants. The charges would be laughable if they didn’t bring such serious penalties, including decades of prison time. Evidence of the alleged “criminal street gang” conspiracy of Williams’ label Young Stoner Life, or, as the prosecutors term it “Young Slime Life” (“YSL”), purportedly connecting a group of friends and aspiring or actual rap artists to one or two serious crimes such as homicide includes: social media posts of emojis, traffic speeding, rap lyrics, hand signs including “wiping the nose with the index finger,” tattoos celebrating their low–income Black neighborhood (“ROC” for “raised on Cleveland”), and wearing clothes with YSL logos. Similarly, defendants in the Cop City case who are objecting to an almost $110 million police training complex destroying eighty–five acres of the Weelaunee Forest and increasing police militarization have been charged with “domestic terrorism” for distributing flyers, posting on social media about police violence, bringing food and water to protestors, working at a bail fund, attending a music festival aka protest, and signing a form “ACAB” (for “All Cops Are Bastards”).
Yet the harms of the indictments are not mitigated by the pettiness of the accusations — Williams and other accused people have been jailed for over two years pending trial without bail, and numerous Stop Cop City activists have been taken from their homes during militarized police raids, jailed for months on very high bail, and sometimes sexually harassed or denied food, water, and medication. Accused people have lost jobs, housing, bank accounts, and have had their families suffer. The first Stop Cop City defendant’s case already has arguably violated constitutional “speedy trial” rules, and necessitated a gag order and interlocutory appeal. The YSL trial — far from over — is already the longest trial in Georgia history and is on its third judge due to prohibited ex parte meetings and seemingly rampant judicial and prosecutorial bad behavior. The excess is matched only by the brutality; in addition to performing the violent raids and arrests, the police have already killed one Stop Cop City protestor, shooting fifty–seven bullets into Manuel Esteban Paez Terán, known as Tortuguita, who had been living in the trees in an attempt to save them. The actual and bureaucratic violence in these cases echo the infamous Chicago 8 trial, except these cases are perhaps even more of a (brutal) circus.
Criminalizing Community & Mutual Aid
Both cases manifestly criminalize community. The Stop Cop City case came after two years of protest and seeks to punish not only acts supportive of protest or critical of the police, but also the supposed thoughts underlying such protest. The indictment justifies the case by claiming that the defendants are abolitionist and “subscribe to a philosophy of anarchy,” are “grounded in an anti–authority mindset,” and promote such (criminal?) goals as “collectivism, mutualism/mutual aid, and social solidarity.” Through this lens, their supposedly “unified” — over sixty people, big even for a Mafia crime family! — criminal intent is shown through communication about legal rights and resources via ‘zines, word of mouth, or writing the phone number of a local bail fund on someone’s arm. In reality, it is clear that Defend the Atlanta Forest (DTAF) is hardly even an organization, let alone a criminal organization; in the words of one accused person it is “not even [an] informally organized group . . . these phrases are simply shorthand . . . used to express opposition and solidarity . . . if you want to write Defend the Atlanta Forest on your backpack, great, you’re part of DTAF. That’s how informal it is.” In sum, the Stop Cop City defendants are alleged to be terrorists because they, in an ad hoc fashion, dare to question the city’s overpolicing, destruction of forest, and gentrification, and are attempting to use the law and mutual aid (or “collective coordination to meet each other’s needs, usually from an awareness that the systems we have in place are not going to meet them”) to build community and help each other. To be clear, the protestors are simultaneously trying to engage directly with the city’s political process, where the authorities are also impeding opposition. For instance, after repeatedly trying to obstruct a petition against the project, city officials recently closed a City Hall hearing, severely curtailing testimony against the project. Nor did the City Council vote seem to even acknowledge the community’s voice; despite seventy percent opposition, the Council voted overwhelmingly not to curtail the oversized project.
Although it may at first seem less obvious, the YSL prosecution also punishes community. Williams is not just immensely successful as a purveyor of the unique sound of Atlanta “trap” but also as a type of cultural ambassador for bringing Southeast Atlanta’s sound and culture to the world, and as a philanthropist and leader in his geographically marginalized and politically and legally estranged community. Williams is known not only as the Southeast’s “most extravagant native son, who made good,” but also as a fiercely loyal neighborhood leader who “refused to abandon the streets” where he grew up: lending money to old friends, helping aspiring rappers from the underresourced area, and paying bail in 2021 for people jailed on low–level offenses at the Fulton County Jail. Demonstrations of this loyalty, via emojis, tattoos, clothing, and, most of all, rap lyrics, are transformed into evidence of a criminal organization via racist assumptions about the criminality of Black men and rap in particular, an intense years-long desire by local authorities to cut Williams down, and frankly, a whole lot of vivid imagination. The use of these lyrics against Black teenagers and men, whether they are artists themselves or fans who post songs and lyrics on social media, has become such a problem that lawmakers have proposed an amendment to the Federal Rules of Evidence to curtail this. Do we ever see graphic lyrics by white artists like Johnny Cash or Guns n’ Roses used as evidence of homicidal intent? Prosecutors are correct that YSL is more than a label; it is not, however, criminal activity that defines it, but rather allegiance to a low–income Black community and resistance against government overreach. Indeed, Williams has called his label, YSL, “the biggest family in the world.”
Policing Racial & Economic Boundaries
These conspiracy cases also both turn on policing space and maintaining racial and economic boundaries, keeping people “in their place.” The Cop City controversy hearkens back to a literal and forcible “land grab” from the Muscogee (Creek) Nation in the 1830s. It entails destroying eighty–five acres of an old–growth forest to create a massive police training space with an explosives testing area, “mock village,” community garden, and weekly farmers’ market. (How do the last two belong in a police training facility?) Performative gestures aside, the vast development will destroy a lot of forest and pollute adjacent land and waterways. The case is not just about a police training facility (albeit a massive and expensive one) but also about overpolicing more broadly, a phenomenon that accompanies gentrification and the increasing demands of wealthy, mostly white urban residents that they experience no crime or disorder.
Gentrification and racial geography further link the two cases. Atlanta has gone through “unprecedented levels of gentrification” over the past few decades, with rents increasing fifteen per cent in one year from 2021 to 2022 alone. Not coincidentally, Atlanta’s Black population has decreased by one third since 1990. Williams grew up in a now–demolished public housing complex in Southeast Atlanta, came from a very low–income family, and, like too many in his neighborhood, was overpoliced and eventually became entangled in the juvenile criminal system. This neighborhood, Cleveland Avenue, is historically majority Black and low income and is now threatened with gentrification and more residential dislocation. Terming it “blighted” and “dangerous” — racialized code — city leaders seek to raze the rest of the low–income, but still vibrant, community, just as they demolished Williams’ childhood home.
Gentrification, and its concomitant strong police presence, is a key part of local leaders’ plan for the city’s future. Atlanta’s wealthiest neighborhood, Buckhead — containing “almost half of its assessed real estate value” and twenty percent of the city’s population, three quarters of its residents white — has threatened to separate. This would be disastrous for the city’s revenues. Accordingly, maintaining and literally policing boundaries is key to keeping Buckhead in. One ironic failure in this regard is that Williams bought a house in Buckhead five years ago. His crossing of this racial boundary, along with the transgression of his music and rap more broadly — how many white Buckhead teens listen to, dress like, and try to be like YSL folks, to their parents’ dismay or ire? — infuse the police and prosecutorial efforts against him. Crossing another race and class boundary, Williams himself aspires to be a real estate developer; he owns 100 acres of real estate in the Atlanta area, proposing to create a “Slimetown” with homes, a concert venue, waterpark, and trail biking paths.
Prosecutorial Use & Abuse
Compounding the already problematic sweep of conspiracy laws are prosecutors’ use and abuse of them. Conspiracy charges are so easy to charge and even prove that many prosecutors use them often — experts agree they are one of the most frequently charged federal crimes — and often for low–level crimes that do not meet their purpose or, as with the cases discussed here, against groups of people who are not engaged in collective criminality at all. The low proof threshold, heavy incarceration penalties, and life–ruining consequences of even a single allegation mean that pleas are especially easy to coerce in these cases. Indeed, prosecutors and some scholars tout this as a benefit of conspiracy charges, although it is difficult to see why they need this benefit in a criminal system where the power imbalances are still so extreme and up to ninety–five percent of defendants plead. Conspiracy law also brings significant evidentiary advantages, such as the use of otherwise inadmissible bad acts and statements under the “co–conspirator statement” rule.
Why do prosecutors like conspiracy charges so much? In addition to being low–hanging fruit, they also are frequently high profile; prosecutors get to be “celebrities” when taking on such cases as Young Thug or the Bronx 120. Yet they don’t like the spotlight when the cases are revealed to be far less crime–preventing than they were touted as being. After creating a media storm bragging about the Bronx 120 case as “the largest gang crackdown in New York City history” aimed at taking down “organized crime” that was “terrorizing” the neighborhood, the “crackdown” turned out to be not of a gang or of violent crime, but instead of a hundred mostly non–culpable low-income young men of color. A high–profile prosecutor’s only public statement afterwards was to blame the New York Police Department, saying that he acted on their advice, not acknowledging his own professional and ethical responsibilities to exercise independent judgement.
Prosecutors in these cases not only frequently lack the humility that many (including me) think should accompany their immense power, but also often engage in borderline or blatantly unethical behavior in an “ends justifies the means” mindset. The Cop City and YSL cases certainly evidence this pattern. Prosecutors have supported or at least tacitly endorsed police excesses, including harassment, violent raids, and even a killing; tried to publicly embarrass defendants and potentially influence the media (through “perp walks” and publicizing their diary entries). They have also played on politicized — one prosecutor in the Cop City case warning of a sinister plot by protestors to create anarchy and “radicaliz[e] liberals” — and frankly racist tropes — such as that the YSL defendants’ use of “Bleveland” to refer to their neighborhood of Cleveland indicates that they are members of the “notorious Bloods gang.” (It’s the “B” instead of the “C”, get it?) None of these tactics comport with prosecutors’ unique mandate to be “ministers of justice,” rather than to seek maximum convictions or punishment. And prosecutors in both cases have not stopped with these misdeeds; instead in both cases, they have crossed lines and arguably violated the Model Rules of Professional Conduct and constitutional mandates. In the Cop City case for instance, prosecutors issued misleading warrants containing untruths and encompassing non–criminal conduct; withheld access to evidence; and, recently, were found to have violated the attorney–client privilege of numerous accused people by releasing their emails with counsel to many law enforcement agencies. A judge aptly termed the latter conduct “grossly negligent” and “egregious.” Prosecutorial conduct in the YSL case is similarly disturbing, including multiple ex parte meetings with the judge in the Young Thug case, encouraging a reluctant witness, now infamous Kenneth ‘Lil Woody’ Copeland to ignore his (non–present) lawyer’s advice, and perhaps even suborning perjury and seemingly endless Brady violations. Providing a glimmer of hope, not all the involved prosecutors are okay with this conduct; DeKalb County District Attorney Sherry Boston withdrew her office from the Stop Cop City cases a year ago, citing a “fundamentally different prosecution philosoph[y]” from Georgia Attorney General Chris Carr.
Abolish Conspiracy
These cases may seem like outliers — in their scope, government overreach, political and media attention. While scaled up, they are nonetheless indicative of the central pathologies underlying conspiracy law. The evidentiary, procedural, and prosecutorial shortcuts the law allows are very problematic, especially given the coercive consequences of a mere charge, including incarceration, other restrictions on communication and movement, and sometimes massive public stigma. The center of the law itself, however, is so deeply flawed that even fixing pretrial, evidentiary, or sentencing procedures cannot solve the problem. Conspiracy allows, indeed encourages, the punishment of political, racial, and geographic communities, and the stifling of free speech and association. Scholars have noted how criminal procedure law expresses who does and does not belong as “American.” Conspiracy law does the same, telling us in these two current cases that it is unAmerican, criminal, even terrorist, to protest, to rap, to promote mutual aid, to oppose police expansion, and maybe even to be non–white, non–capitalist, pro–environment and pro–helping others. Conspiracy has been a powerful tool, used more often to keep people down and to punish resistance, or simply to punish groups of Black and other marginalized people, than to address any actual criminal conspiracies. Although there have been occasional arguably warranted cases, such as the Gambino crime family or El Chapo, they are few and far between and the same convictions could usually have been accomplished through other means such as accomplice liability. In short, the costs of conspiracy vastly outweigh the benefits. By maintaining punitive caste systems, incentivizing government surveillance and informants, stifling speech, and curtailing rights of self–determination and democracy, conspiracy itself is unAmerican. As such, it should be abolished.
* Professor of Law, Brooklyn Law School. Thanks to Martin Bell, Alison Lowenstein, and Jocelyn Simonson for helpful comments, Briana Humphrey and Justin Murphy for excellent research assistance, and the editors of the Harvard Law Review Blog for thoughtful editing.
The post Criminalizing Community, Policing Space: Conspiracy, Young Thug & the “Stop Cop City” Protestors appeared first on Harvard Law Review.