Following the attack, Carol begins to have nightmares of men breaking into her apartment and attacking her. She hears reports that her rapist has been seen by others in the neighborhood, which heightens her fears of another encounter with him. She becomes obsessed with finding her attacker. Every afternoon, Carol scours the neighborhood with her boyfriend, Bruce.
Meanwhile, Detective Christiansen's frustration builds as the rapes continue. Nearly all the rapes occur in the same area, and each time, the rapist's methods are the same: he follows a woman into her apartment building, pretending to be a fellow resident, then forces her into her apartment and rapes her. At least ten such rapes, in addition to Jane's and Carol's, have now been reported. By February 1981, with help from Carol, Jane, and other victims, Detective Christiansen is able to come up with a composite sketch of the rapist. He hands copies of the sketch to undercover agents and tells them to concentrate on the Yorkville neighborhood.
That Friday, Carol and Bruce set out on their daily search for the rapist. They pass a grocery store on the corner of Eighty-Ninth Street and continue past the Carnegie Animal Hospital and the Stuyvesant Square Thrift Shop around the same time that Manuel Ayree leaves his apartment building and walks across Eighty-Ninth Street toward Second Avenue. He is spotted by two undercover policemen in a yellow taxi. They recognize his face from the composite sketch Detective Christiansen gave them. At the same time, Detective Christiansen is heading south on Second Avenue in his unmarked police car. After parking his car on the curb at Eighty-Ninth Street, he gets out and walks over to the corner pay phone. Ayree passes the Carnegie Animal Hospital and the Stuyvesant Square Thrift Shop while the taxi creeps along behind him.
Carol and Bruce, meanwhile, decide to turn around just as they approach Eighty-Eighth Street. As soon as they turn around, Carol sees Ayree walking toward them. She stares at Ayree as he walks by them and tells Bruce that Ayree is the rapist. Immediately, Bruce grabs Ayree, and a fight ensues. Carol rushes to the pay phone on the corner of Eighty-Eighth Street and tells the operator to call 911. The police in the taxicab, as well as Detective Christiansen and two more undercover agents posing as joggers, arrive on the scene. Ayree is shoved into the back seat of the taxicab and taken to the police station.
At the police station, Ayree demands to be released, announcing that he has diplomatic immunity. (Diplomatic immunity allows some diplomats who are serving their own nations to be protected, even from arrest, for violations of their host country's laws. The country of origin can remove an individual's immunity if it chooses—thereby permitting the host country to prosecute the individual—but has no obligation to do so.) Detective Christiansen moves quickly, calling the other victims to come and identify Ayree as their attacker. Christiansen has little luck contacting the victims, but he finally reaches Jane at work. Upon hearing that Ayree has been caught, Jane runs out of her office and heads toward the station. However, members of the Ghanaian mission arrive sooner and identify the rapist as nineteen-year-old Manuel Ayree, son of the third attaché to the mission. Carol confronts the group, recounting her horrible experience. Jane arrives at the police station, where she is introduced to the Ghanaians as another of Ayree's victims. In a viewing room, Jane tells the detective to have Ayree say, “Is it in you ass?”54 When she hears his voice, she knows for sure that Ayree is the rapist.
About forty-five minutes after arriving at the police station, Manuel Ayree walks out, a free man. “I told you I had diplomatic immunity,” he says, snickering. He laughs tauntingly as he walks by Carol on his way out.
On Tuesday morning, a press conference is held in which Ghanaian officials announce that Manuel Ayree will be leaving the United States and will not return. They also announce that the case will be fully investigated in Ghana. He is never investigated or brought to trial in Ghana.
Another doctrine seen as letting offenders go free is the entrapment defense. As with the exclusionary rule discussed earlier an offender can get a free pass if a police officer blunders, even if it is clear that the offender would have committed the offense without the officer's involvement. (The entrapment defense cannot be raised unless the authorities were involved. If an ordinary citizen influences a defendant in the exact same way, the offender would have no entrapment defense.) Consider an example of the kind of case that is likely to upset people.
Sexual Predator Shows Up to Have Sex with a Fourteen-Year-Old but Walks Free because Police Arranged the Meeting
For seven months in 2011, the Volusia County Sheriff's Office in Florida organizes a massive sting operation to catch online sexual predators targeting young boys and girls.55 The police dub the plan Operation Cyber Sting, in which officers use online chat rooms to make contact with predators and lure them to a location where they think they will have sex with children.
Detective April McCray takes part in the sting operation. During an online chat with forty-four-year-old Florida native Michael Llorca, she invites him to meet with her and her “baby sister” Amber, who is fourteen. McCray asks Llorca if her little sister's age is a problem for him. On the contrary, Llorca writes, “Send me some pics and let's talk!”56 In later communications Llorca says that he is going to teach Amber, the fourteen-year-old, a number of sexual positions.57 McCray tells Llorca to meet them several days later at a home in Deltona where both sisters will have sex with him.
On the arranged day, Llorca jumps in his car with his two young daughters and drops them off at his brother's house. He then drives to the house in Deltona, where he parks his car in the driveway. He rings the doorbell, but when the door swings open, he is greeted by two officers, who arrest him.58
In December 2013 Llorca faces trial for three felonies arising from the incident: use of a computer to solicit, seduce without a parent's or guardian's consent, traveling to meet a minor, and unlawful use of a communications device. He successfully argues that he was entrapped by the authorities, and he receives the defense and walks free.
The prosecutor is appalled; Llorca was clearly told that the girl was fourteen and, with that knowledge, got in his car and drove to their home. He reminds the court what was and what was not in the emails: “You are not going to read anywhere where he says ‘14 are you crazy? That's illegal. Goodbye. I'm not interested.’ That's not in there.”59
One final doctrine of this sort are statutes of limitations, which require cases to be brought to trial within a certain length of time after the crime. The amount of time varies by the severity of the crime and by jurisdiction. Statutes of limitations can block justice, even for serious offenses, even if the community remains upset about the offense, and even if the offender has continued in his criminal ways ever since the original offense. This doctrine is a common source of disillusionment.
Murder Mitigation to Manslaughter Triggers Statute of Limitations and therefore Bars all Liability
In 2002 Samuel Ciapa is a small-time pot dealer in western New York State.60 He is in a dispute with two other drug dealers, Alan Tomaski and Michael Hesse. On August 16 the men lure Ciapa to a reservoir, a place where people gather to drink during the summer outside Buffalo. When Ciapa arrives, Hesse overpowers him and holds him down while Tomaski savagely and repeatedly stabs him and then strangles him to death. Tomaski and Hesse tie Ciapa's body to a cinder block and throw it into the reservoir.
When the police discover Ciapa's body, Tomaski has already fled to West Virginia. From 2002 to 2005 Tomaski spends some of his time in New York and the rest in West Virginia, where he is incarcerated on multiple occasions for various minor offenses.
The case goes cold for nearly eight years. Eventually, Tomaski emerges as a suspect, and the police obtain a warrant to search his New York home and obtain additional evidence. On June 10, 2010, Tomaski and Hesse are charged with second-degree murder. Hesse agrees to testify against Tomaski and is allowed to plead guilty to the lesser charge of first-degree manslaughter. Tomaski pleads not guilty, and the case goes to trial.
Before the trial b
egins, the prosecution asks the judge to instruct the jury on the legal meaning of both the offense of second-degree murder and the lesser offense of first-degree manslaughter. The defense objects to including the lesser offense, thinking that they have a better chance of getting an acquittal if the only choice presented to the jury is murder or not guilty. The jury finds Tomaski guilty of the lesser offense of first-degree manslaughter, and he is sent to prison.
On appeal, Tomaski's attorney asks that his conviction be reversed and that he be permanently discharged. He argues that while there is no statute of limitations for murder, which is the primary offense for which he was charged, New York does have a statute of limitations for manslaughter, the lesser offense for which he is ultimately convicted. Under the statute of limitations, the defendant must be charged within five years of committing the offense, excluding anytime during which he was not within the state of New York. In fact, Tomaski was charged seven years and ten months after the offense and had been out of the state for two years and five months. Thus, the state missed its opportunity to prosecute him by five months. Even though Tomaski had opposed giving manslaughter instruction to the jury at trial, the appellate court directs that he should be given an unconditional and permanent discharge.
As with the previous rules and practices, advocates of these rules could give an explanation in support of such defenses for guilty offenders. Some of these doctrines can claim to promote legitimate interests, but it is also frequently the case that people would want those interests promoted in some less justice-frustrating way.61 More importantly, every time a guilty offender is given a defense there is a hidden cost. Each such case may be seen as announcing the criminal justice system's apparent indifference to the value of doing justice—giving offenders the punishment they deserve, no more and no less.62
Should the law care that its reputation for giving importance to doing justice is damaged? The previous chapter has already shown the danger of the shadow vigilantism sparked by perceived failures of justice, and parts III and IV will give more detail about why the system should very much care about getting a reputation for regularly producing failures of justice.
Readers have hopefully come to see that vigilantism is something considerably more nuanced than the evil incarnate that its Ku Klux Klan paradigm might suggest. Some vigilantes may well be morally if not legally justified in what they do, as chapter 2 illustrates.
One may be tempted to mark out these two importantly different categories as “moral vigilantes” and “immoral vigilantes,” but as will become apparent in this part, such a simple distinction may not be possible. First, as chapter 5 will show, it is not so easy to construct a clear, workable code of conduct for the moral vigilante. There remain fuzzy lines.
Further, even if one could construct a clear, detailed code of conduct, it is an inevitable weakness of vigilante action that, once the red line of criminal prohibition has been crossed, it is easy for even the well-meaning vigilante to lose track of where the boundaries of moral justification lie, as chapter 6 illustrates. Finally, and perhaps most compellingly, even if the vigilante is successful in staying within the boundaries of moral justification, it is commonly the case that his or her conduct nonetheless may remain problematic for the larger society, a theme that chapter 7 explores.
The bottom line is that official action is always to be preferred over vigilante action. But it does not follow that the moral vigilante must simply suffer in silence. First, this may not be possible. Strong feelings of disillusionment may spark action no matter what the law threatens. Further, asking moral vigilantes to suffer in silence is a poor crime-control strategy because it can provoke shadow vigilantes to undermine the system, as chapter 3 explains (and part III will detail).
But more importantly, suffering in silence ought not to be asked. The government has clear obligations with respect to safeguarding its citizens under its social contract with the people it governs, and it is not free to simply choose not to perform them. The criminal justice system ought to take seriously its obligation to assure that justice is done and crime avoided whenever possible so that people are never put in the position of having to consider moral vigilantism.
If people are confronted with a criminal justice system that seems grossly insensitive to the importance of doing justice, what are they to do? Is it possible to define what would and would not constitute moral vigilante action—to define a vigilante code that sets the preconditions for and the limits of legitimate conduct?
If a group were contemplating vigilante action, here are ten rules one could suggest to members of such a group or community to help them choose action that stays closer to what is morally defensible. Vigilante action is never legally justified (if it were, by definition it would not be vigilante action), but if a group follows these ten rules, its conduct might at least be viewed by outsiders as being nearly morally justified.
1. DON'T ACT UNLESS THERE IS A SERIOUS FAILURE OF JUSTICE
Any vigilante action will be disruptive. It cannot justify itself unless it produces more benefit than the disruption itself costs. For example, a pattern of petty thefts by youngsters in a marketplace is not likely to justify the social disruption of vigilante action, unless that action is itself of little or no disruption, even if the police are lazy and indifferent and could solve the problem if they chose to do so.
2. DON'T CAUSE MORE HARM THAN IS NECESSARY AND JUST, AND AVOID INJURY TO INNOCENT BYSTANDERS
Part of doing justice means recognizing that society has an interest in minimizing damage to all, even unlawful aggressors. If a person's safety and property can be protected with a punch, it ought not to be defended with a gunshot. Clearly, harm to innocent bystanders ought to be avoided at all costs. Consider an example of how easy it is to violate this rule.
The Legion of Doom
In 1984 Paschal High School in Fort Worth, Texas, is facing a problem of petty theft from student lockers and drug use by some students.1 The problem does not go unnoticed, nor is it resolved. The school principal appoints a group of students, called the Ambassadors, to serve as hall monitors and to report suspicious activity. This intervention does not fix the problem. Students continue to express frustration at the inability of school officials to stop the problem, noting that “we could get a jacket stolen or something. You could be walking down the hall and [the thief] would have your jacket on. You could prove it, but they (school officials) wouldn't do anything about it.”2
Not seeing any other ways to stop the problem, a subset of the Ambassadors, joined by several other students, forms a group called the Legion of Doom. Its members are seen as model students from affluent families; some are star athletes, while others are members of the school's honor roll.
By December the Legion of Doom concludes that it must undertake its own independent campaign. Initially, the group is interested in “trying to scare some of the kids they suspect of being involved in drug pushing and stealing.”3 The Legion focuses its attention on a group known as Fire It Up, fellow students known for putting partying above all else.
The Legion leaves warning notes for the targeted students. The notes have no more effect than previous efforts. Now, more frustrated than before, Legion members escalate their activities. They begin carrying firearms to school as a means by which to intimidate the troublemakers. Bringing guns to class does not end their efforts. They build a pipe bomb and a homemade rocket launcher and shoot out the windshield of one student's car. Legion members also kill and disembowel a cat, leaving the bloody remains smeared on the seats of another student's car. The body of the dead cat is draped on the steering wheel.
Fig. 5.1. The turf that the Legion of Doom sought to protect, 1985. (Courtesy of Wikimedia Creative Commons, Dark Serge at English Wikipedia, licensed under CC BY 3.0)
While these acts are clearly illegal, the Legion's members see themselves as preventing further decline to their society, harm to innocent students, and chaos in the school.
With t
he advent of these more violent activities, law enforcement authorities begin to investigate the group's activities. After some serious investigation, the evidence is presented to a grand jury. An indictment for thirty-three separate counts is brought against eight members of the Legion for their vigilantism-fueled activities. The charges include destruction of property, firebombings, aggravated assault, and illegal weapons possession.4
If the Legion members’ conduct is judged against the ten rules for the moral vigilante, that conduct would seem to come up short, having violated rules 1 and 2. While the locker thefts and minor drug dealing are regrettable and must have been frustrating, they do not rise to the level of violence and victimization that would justify the vigilante campaign. Further, the nature of the Legion of Doom's campaign, which risked bodily injury to both the suspected offenders and innocent bystanders, is clearly not proportionate to the threat of a stolen jacket.
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