Shadow Vigilantes

by Paul H. Robinson

  The local police chief concluded that Zimmerman had a right to act in self-defense and released him. A public national uproar led to the appointment of a special prosecutor, who charged Zimmerman with second-degree murder, but on July 13, 2013, the jury acquitted Zimmerman.

  Fig. 9.1. Painting of George Zimmerman, neighborhood watch volunteer who shot Trayvon Martin, 2012. (Courtesy of DonkeyHotey, Flickr.com)

  Another danger of leaving neighborhoods to fend for themselves is that their enthusiasm and newfound authority may lead to dropping any pretense of approximating professional police conduct. Some neighborhoods have gone beyond the formation of watch groups. One development is the “Glock Block,” where neighborhoods in Oregon, Texas, and Arizona advertise “We Don't Call the Police.”28

  POLITICIANS PROPOSE LAW-AND-ORDER LEGISLATION TO COMBAT PERCEIVED FAILURES OF JUSTICE

  But the shadow vigilante's frustration with a criminal justice system that is seen as indifferent to the importance of doing justice plays itself out in much broader civic conduct as well. It means that politicians are provoked to support changes in criminal law and criminal adjudication that are designed to force liability and punishment from an apparently reluctant criminal justice system—even when the reform also risks doing injustice. Consider several examples of this dynamic that have had a significant effect on the American system.

  The Abduction and Murder of Polly Klaas

  In 1993 twelve-year-old Polly Klaas lives with her mother and sister in Petaluma, California, a small median-income town a few miles north of San Francisco.29 She is a shy girl who is much beloved by her family and friends. Her favorite subjects at school are music and theater.

  On Friday, October 1, 1993, Polly invites her two best friends over for a slumber party. The girls, who are all clarinet players, have formed their friendship in the Petaluma Junior High School band. Because it is a weekend, they are allowed to stay up late talking and playing games. As the girls begin to get tired, Polly starts to leave her bedroom to fetch the sleeping bags from the living room. When she opens the bedroom door she is shocked to find a man standing there with a knife. He immediately threatens all three girls: if they make any noise, he will cut their throats.

  Polly offers the man a box with her savings in it, fifty dollars in total, which he refuses. He tells the girls to lie on the floor and then proceeds to tie their hands behind their backs and place pillowcases over their heads. He then grabs Polly and flees. The two girls immediately work to free themselves, stepping through their tied arms, and run to Polly's mother. By 11:00 p.m. the search has begun for Polly Klaas.

  The next day the community rallies behind the search efforts. Citizens form patrols that scour the forests surrounding the town. Thousands of posters of Polly are printed and displayed. Purple ribbons, Polly's favorite color, are put up all over town.

  The search gains national attention as popular television shows, including America's Most Wanted and 20/20, feature segments about the kidnapping. Hollywood actress Winona Ryder, a native of Petaluma, offers a $200,000 reward for information leading to the discovery of Polly. She tells America's Most Wanted that she is offering the reward “because this happened in the community I was raised in.”30

  On November 28, almost two months after Polly was taken, a local resident is hiking around her property with friends when they stumble across disturbing items scattered around several bushes: girl's clothing, a condom wrapper, binding tape, and rags with knots in them. Fearing that these items may be related to Polly's abduction, the resident calls the police.

  The police link the evidence to Richard Allen Davis. On November 30 Davis is arrested but refuses to talk about Polly. However on Saturday, December 4, he confesses to kidnapping Polly and murdering her, and he tells investigators where they can find her body. In the weeks since her abduction, Polly's family has kept a candle burning in her window. They now extinguish it.

  Davis has served time on several occasions for robbery, burglary, rape, assault, and kidnapping. He was released early on parole twice, only to quickly reoffend. After his first parole he kidnapped a woman, sexually assaulted her, was arrested, escaped from prison, kidnapped another woman, and was rearrested after breaking into yet another woman's home.31 He goes to prison for that laundry list of offenses but six years later is again paroled. When released, he and a criminal partner force their way into a woman's home, threaten to kill her family, beat her, and force her to go to the bank and withdraw $6,000. When that money runs out a few months later, they rob a bank.

  In 1985 Davis is arrested again, convicted, and sentenced to sixteen years. But on June 27, 1993, he is paroled again after serving half of his sentence. In October of the same year he is standing in Polly's bedroom with a knife. Had he been required to serve his entire prison sentence, Polly Klaas would not have been within his grasp.32 Davis was arrested over fourteen times and convicted of many violent offenses before he kidnapped and murdered Polly Klaas.33

  Almost overnight, support builds for the passage of “three strikes and you're out” legislation, spearheaded by Michael Reynolds, whose daughter had been violently killed by a just-paroled repeat offender.34

  On November 8, 1994, California Proposition 184, the Three Strikes Initiative, is on the ballot and receives an overwhelming majority with almost 72 percent support.35 Outrage over the Polly Klaas case is credited with inspiring that support. The new law has mandatory harsh sentences for repeat offenders: “If a criminal has had one previous serious or violent felony conviction, the mandatory sentence for a second such conviction is doubled. After two violent or serious felony convictions, any further felony, non-violent or not, will trigger a third strike.” The mandatory sentence is then even longer, typically three times the ordinary sentence, or twenty-five years.36 (Prior to the bill, judges could factor in previous convictions in imposing longer sentences for repeat offenders, but doing so was not mandatory and was at the discretion of the judge.)

  Within two years of Polly's death, twenty-two states followed California's lead in enacting a version of the three strikes legislation. In 1994, Colorado, Connecticut, Georgia, Indiana, Kansas, Louisiana, Maryland, New Mexico, North Carolina, Tennessee, Virginia, and Wisconsin passed their respective laws. The next year Arkansas, Florida, Montana, Nevada, New Jersey, North Dakota, Pennsylvania, South Carolina, Utah, and Vermont followed suit.37 When Massachusetts enacted its version of the three strikes law in 2012, it became the twenty-eighth state to have some form of the law.38

  POLITICIANS PROMOTE MANDATORY MINIMUMS

  Beyond the three strikes legislation, politicians have promoted mandatory minimum sentences of all kinds. It is common for criminal statutes to specify a maximum authorized sentence for an offense, but it became politically popular to also provide a minimum sentence. This trend derives not from a single headline-making case like that of Polly Klaas but rather from a stream of what was perceived as outrageously lenient sentences—much like the dozen or so described in chapter 4 and the appendix, such as the sentence to probation and community service for the shopkeeper who shot a teenage girl in the back after wrongly accusing her of shoplifting and the sentence of a fine for the two racist men who hunted down their victim after a confrontation in a bar and beat him to death with a baseball bat.

  Dissatisfaction with overly forgiving judges who were given broad discretion nurtured the mandatory minimum movement that took hold during the 1970s, initially in New York when drug and crime rates were rising.39 Once begun, the movement took on substantial momentum. From 1991 to 2011 the number of mandatory minimum penalties in federal criminal law nearly doubled.40 More than two-thirds of the states have mandatory minimums for drug offenses.41 More than 80 percent of the increase in the prison population between 1985 and 1995 was due to drug convictions that triggered mandatory minimum sentences.42

  Unfortunately, the shift to mandatory minimums essentially guarantees a regular stream of unjust sentences, some grossly so. Every offense or offender pre
sents its own unique situation. A just sentence requires taking into account the seriousness of the offense, as well as the culpability and capacities of the offender. Because of the wide differences among cases, any mandatory minimum will impose an excessive sentence in some cases.

  Research studies demonstrate the point. One study of laypersons’ shared expectations of justice showed the dramatic conflict between the law's application of mandatory minimums in real cases and the average person's judgments about those cases. In one three strikes case, test subjects gave an offender 3.1 years; in reality, the court was required to give life imprisonment. In a cocaine case, subjects gave 4.2 years, while the court was obliged to give life without parole. In a marijuana case, the subjects gave 1.9 years, while the court was compelled to give fifteen years to life.43 The unfortunate irony here is that these cases are seen as grossly unjust even by the lay public who elected the politicians who put the mandatory minimum sentencing rules in place.44

  To illustrate how badly wrong the system can go with mandatory minimums generally and three strikes statutes in particular, consider the case of Shane Taylor.

  Twenty-Five Years to Life for Possessing Drugs Worth Ten Dollars

  At age eleven, Shane Taylor is living on the streets of Los Angeles.45 He had previously been bouncing around from house to house, often staying with friends and relatives. After a few years on the streets, he develops a methamphetamine addiction, initially out of curiosity and as a respite from his otherwise bleak life.

  Around age sixteen he meets Shelly Hayes. The two begin dating and before long have fallen in love. Hayes sees the good in Taylor. Taylor in turn appreciates that Hayes does not use drugs and is trying to make a life for herself by going to night school. Taylor is drawn to that positive path. However, in 1988 he is arrested for two burglaries that he committed to feed his drug addiction and spends time in prison. Neither of the burglarized homes was occupied, and Taylor took something from only one of the houses. He serves his time in prison and says he “learned [his] lesson.”46 After his release, he marries Hayes, and the two begin their life together.

  When Hayes tells Taylor that she is pregnant, he is overwhelmed with joy. He is certain that he wants to be a good father and to get his life together. He starts working full-time as a prep cook, earning money to support his family. His daughter, Alisha, is born into a loving home, and Taylor has never been happier. He holds a steady job, is a good husband and father, and together he and Hayes strive to raise their daughter.

  In 1996 Taylor and Hayes's brother take a small retreat together as a break from their normal hardworking lives. They drive up toward the Sequoia National Park, where they find a scenic overlook, pull over, turn on the car radio, and open a few beers. A police officer driving past also decides to pull over and see if either of the young men is underage. Unfortunately, Taylor has not quite managed to completely give up meth. The police officer finds 0.14 grams of the drug in a plastic bag tucked into Taylor's wallet. The drugs have a street value of under ten dollars.

  Taylor is convicted of illegal narcotics possession. When he shows up for sentencing a month later, Judge Howard Broadman is surprised to see him: “I never expected to see you again, frankly. I thought a lot about you. And I said, ‘Jeez, if I were him, I'd do research and find out what country didn't have extradition laws,’ because I don't think I'd have showed back up.”47 Taylor has done what the law requires of him and is hoping to get a sentence of a year or two and treatment for his drug problem. To his shock and horror and that of his family, Taylor is sentenced to twenty-five years to life for his ten dollars’ worth of drugs. Because of his burglary and the attempted burglary more than eight years ago, the minor possession offense becomes his third strike and requires a mandatory minimum sentence.

  Hayes is forced to raise their four-year-old daughter by herself, as Taylor is locked up for the foreseeable future for carrying that meth in his wallet. Years later the judge who was compelled to sentence him attempted, with the help of a private group, to get Taylor's sentence reduced.48

  This outcome has been the case for thousands of defendants in California and other states that enacted similar—three strikes or repeat—offender legislation. Lester Wallace was a homeless man suffering from schizophrenia who had two nonviolent residential burglaries on his record. When police caught him attempting to steal a car radio, he became an early victim of the three strikes legislation in California, having committed his crime hours after the legislation came into effect. He was sentenced to twenty-five years to life. Curtis Wilkerson was sentenced to twenty-five years to life for shoplifting; his first two strikes arose from some group criminal activities he participated in more than thirteen years before. The property he was trying to steal was a $2.50 pair of white tube socks.49 Under many three strikes statutes, petty offenders are being incarcerated for long prison terms.50

  Everyone—offenders and the public alike—would have been better off if this sentencing war had never begun, if the system had restrained overly lenient sentencing, perhaps with sentencing guidelines, and had never sparked the shadow vigilante impulse of voter outrage over such leniency that gave us three strikes statutes and mandatory minimums.51

  The problem is we now have mandatory minimums, and, as unnecessary as they may be, getting rid of them will not be easy because politicians will worry that voting to repeal them will mark the politicians as being “soft on crime” during the next election.

  We will for some time pay the price for our past sins of enacting rules and practices that produce predictable failures of justice, advertising the system's seeming indifference to doing justice. At the very least, we can stop making things worse and begin to repair the system's moral credibility by having the system publicly and persuasively commit itself to the importance of doing justice and to forsake trading justice away unnecessarily or for a less important benefit.

  The effect of justice-frustrating sentencing in sparking the shadow vigilante impulse that stoked politicians’ calls for three strikes and mandatory minimums can be seen in other contexts as well, in which injustice-producing legislation suddenly becomes popular. Consider other examples with similar dynamics.

  POLITICIANS PROMOTE REDUCING THE AGE TO BE TRIED AS AN ADULT

  Multiple Robber-Murderer Gets Five Years of Rehabilitation

  Willie Bosket is a troubled child.52 In third grade, he is “having problems in school like pulling fire alarms and fighting with the students and the teachers and stealing school books and materials like colored paper.”53 In 1974, after several run-ins with the law, a judge sends him to Brookwood Center for Boys. He sneaks out to get drunk, skips classes, hits another boy in the eye with a poker, rapes another boy in the shower, steals cigarettes from a vending machine, and drives a truck into a social worker. After being released to a group home in Brooklyn, he quickly runs away, back to his home neighborhood of Harlem.

  On a cold spring morning in 1978, Bosket, now around fourteen years old, lifts $380 from a sleeping subway passenger. With that cash, he buys himself a .22-caliber handgun with a holster he can strap to his leg. On Sunday, March 19, 1978, Bosket is again riding the subway, looking for an easy victim to rob. In the late afternoon, around 5:30 p.m., he spots a passenger sleeping. Waiting until they are alone in the car, he nudges the man, Noel Perez, to see if he will wake easily. When there is no response, Bosket starts to remove the watch from the man's wrist. Suddenly the passenger wakes up, startling Bosket, who draws his gun and shoots him in the head twice. As blood pools around the body, Bosket grabs the watch, some money, and a gold ring. Instead of feeling remorse about taking the man's life, Bosket brags about what he has done to his sister, apparently emboldened by the fact that he has gotten away with murder. With no witnesses, the police are unable to identify the killer of Perez.

  Later that same week, on Thursday, March 23, Bosket, with his gun strapped to his leg and his seventeen-year-old cousin Herman by his side, sets out to make some money. Having had rec
ent success robbing subway passengers, they head to the closest subway station in Harlem: 148th Street and Lexington Avenue. As they wait for the next train to arrive, they notice a yard worker, Anthony Lamorte, connecting cars to waiting trains. He is carrying a handheld CB radio that is worth quite a bit of money. As they approach Lamorte, he turns to face them and tells them to “get the hell out,” since the area is a restricted zone for workers only. When the youths taunt Lamorte, telling him to “come down here and make us get out,” he moves toward them.54 Bosket pulls out his gun and demands the CB radio. As Lamorte turns to run, Bosket fires, hitting him in the right shoulder. Lamorte is able to reach safety and call for help, while the two young men flee.

  This failed robbery does not deter Bosket and Herman. Over the next few days, they continue to rob subway passengers at gunpoint. From one man they get twelve dollars after they kick him down the stairs. Another man is shot in the hip when he resists their demands. Bosket is apprehended for shooting the man in the hip but released. With a murder and several violent assaults under his belt and no punishment, Bosket feels invulnerable.

  On Monday, March 27, just over a week after his first killing, Bosket and his cousin once again go to the subway station. The car they enter is empty except for one passenger. As the train leaves the station, Bosket pulls out his gun and threatens the passenger, demanding all of his money. When the man tells them he does not have any cash, Bosket kills him. Going through the man's pockets, Bosket finds two dollars.