This is a sad state of affairs but in some ways a predictable development as the collection of outrageous results from the law's “technicalities” accumulates (as in some of the cases described in chapter 4 and the appendix). As the law increasingly loses moral credibility failing to give offenders the punishment they deserve, it becomes increasingly easier for shadow vigilantes to justify the subversion of what they see as an immoral system. It is probably no coincidence that testilying is most frequently associated with satisfying the technicalities of search and seizure law. The same officer who feels comfortable lying about which side of a house's threshold he was on when he made a drug seizure might think it abhorrent to lie about a matter related to the actual guilt or innocence of the defendant.
Just as police officers morally justify their testilying, so too do prosecutors manipulate the system out of frustration with what they see as the system's common indifference to doing justice. This view frequently plays itself out for some prosecutors when they are presented with classic vigilantes trying to provide the justice that the system does not. Consider two examples.
PROSECUTOR RELUCTANCE TO PROSECUTE SOME VIGILANTES
No Prosecution of Vigilantes Who Beat a Child Rapist
Jane Doe grows up in the neighborhood of Hubbard Farms in southwest Detroit, raised by her single mother.19 When Jane is eight years old her mother dies, and neighbors across the street and, in fact, the whole neighborhood pitch in to raise Jane, calling her “a daughter of the community.”20 The community feels particularly protective of Jane in part because she has Down syndrome. She is often seen on her front porch, dancing and singing along with the radio.
On July 8, 2013, at age fifteen, Jane gets her first job at the local Café Con Leche. She walks the four blocks to and from work twice a week. These small shifts are a stepping-stone for Jane to gain more independence. Her employer describes her as a hard worker. Less than two weeks later, on July 17, she does not show up for the start of her shift. Her employer becomes concerned and calls her guardians, who tell him that she has already left for work. When she finally arrives at work, Jane simply tells her boss that she has been with a friend.
Later that night, Jane confides to her adopted parents that she has been raped. Ramiro Sanchez, age forty-three, approached her and asked her to come inside his apartment. Once inside, he disrobed, kissed, and raped her. He then took nude photos of her on his cell phone. After the attack, Jane quickly dressed and went to work, not knowing what else to do. Her parents immediately notify the police. They provide Sanchez's address and his description.
Jane, her parents, and the community anxiously await an investigation and charges to be pressed. It is not until two days later that a rape kit is finally administered. Several days later, on July 26, the parents are appalled to still see Sanchez walking around free. They send out a chain email through the tight-knit community describing the rape and rapist. On July 29 the community receives some reassuring news: a person reports seeing Sanchez being led out of his apartment by police. But just two days later he is released without any charges. Jane's parents are told that the investigation is ongoing, but the community sees apathy and inattention. They are angry. A fifteen-year-old daughter of their community with Down syndrome has been raped, and she needs support.
Fifteen days after the rape, on August 1, community leaders distribute flyers with a “Rapist Warning” and several pictures of Sanchez. Storefronts along the main street of the neighborhood put up the flyers in their front windows. Tensions and frustrations continue to build, and after hearing that the rape kit has not yet even been processed by the state police, the community explodes. A Facebook thread on the incident has a post that states the following: “attention/warning: this piece of shit u see in this flyer raped a 16 yr old girl in our neighborhood!!!…me personally, if i seen him, id call the cops then i would beat the shit out of him myself till the cops arrive. i hate worthless scum like this. stand up for your hood.”21
On Monday, August 5, at around 1:00 p.m. Sanchez is spotted walking along the main street. A man rides up on a bicycle, jumps off, and while beating Sanchez shouts, “You like raping little girls?” Sanchez manages to escape and runs down the street, where he is attacked by a larger group of people. The crowd kicks and beats him until police arrive. Sanchez is taken to the hospital, where he is treated for his injuries. Another post goes up on Facebook describing how “a friend of mine caught him” and claims that this was “great news for southwest detroit…well…thanks to everyone who shared the flyer and spread the word.”22
Wayne County prosecutor Kym Worthy does not seek to arrest anyone in connection with the beatings. Jerome Warfield, a member of Detroit's civilian commission that oversees police, says, “We do understand that the neighbors were enraged.” He goes on to warn, though, that “vigilantism cannot be accepted when you're impeding upon somebody's rights.”23 The community is torn between praising the actions of the vigilante mob that finally delivered some justice and condemning its members as criminals themselves.24 Although it is clear who participated in the beatings, no charges are ever brought.
We have previously noted other examples where vigilantes were not charged. Recall George Zimmerman's killing of unarmed teenager Trayvon Martin, discussed in chapter 9. No charges were filed by the local authorities until the national press focused on the racial aspect of the case. The same was true in the case of Bernhard Goetz unnecessarily shooting Darrell Cabey in the subway car, discussed in chapter 3, and of the beating of Rodney King in Los Angeles, discussed in chapter 9. Whatever one may think of how vigilantes should ultimately be dealt with, the potentially controversial circumstances suggest that at least some public examination of the events would be useful. Yet prosecutors regularly forgo filing charges unless forced to do so by media attention or public outcry.
Prosecutor manipulation of the system works in reverse as well, overcharging rather than undercharging a case, where they believe the system has regularly failed in the past to give an offender the punishment he deserved. When prosecutors finally get hold of a justice-avoiding offender, it is not uncommon for them to seriously overcharge the violator's offenses or to exaggerate their claim of what constitutes an appropriate sentence, feeling justified by the system's past failures to do justice. Consider an example.
PROSECUTORIAL OVERCHARGING TO MAKE UP FOR PAST FAILURES OF JUSTICE
Finally Getting Something on a Career Criminal
Edward Augustine, living in New Orleans, has had numerous run-ins with the police, but they rarely end in conviction and punishment.25 He has a single conviction for attempted possession of a firearm with a controlled dangerous substance. He has been through the “revolving door” of the criminal justice system many times. Police regularly arrest him on drug or weapons charges, but he will later walk back out on the street. Sometimes it is because the police are unable to find witnesses willing to testify against him. In other instances, prosecutors do not proceed because at the time they have limited prosecution resources and “higher profile” cases in greater need of their efforts.26
In 2008 the new district attorney, Leon Cannizzaro, has a different attitude. Cannizzaro makes it office policy that no case is too insignificant to try and pursue. He makes it his mission to increase the percentage of cases his office will pursue from 50 percent to 90 percent.
On January 7, 2011, a New Orleans police officer observes a car making an unlawful right turn at a red light. The officer turns on his lights and siren to pull the car over, but the car speeds away. The officer follows the vehicle, and as he pulls up beside it, he sees the driver, Augustine, dumping white powder out of the car window.
The officer chases Augustine for several blocks but stops when Augustine enters a one-way street. Augustine accidentally hits another vehicle. Augustine gets out of his car and flees. The officer pursues him on foot. As Augustine attempts to climb a fence in a nearby alley, the officer Tases him and places him under arrest.
Upon
returning to the scene of the crash, the officer learns that Augustine has killed the passenger in the other vehicle, a college freshman who had returned home for the Christmas holidays. The officer also finds numerous packages of heroin in Augustine's possession. It also comes to light that the car being driven by Augustine has been reported missing by its owner, the mother of Augustine's girlfriend.
District Attorney Cannizzaro is unhappy that this career criminal has been allowed to pass through the system on so many occasions without facing any serious punishment. He believes that by not aggressively prosecuting earlier narcotics cases, the system was in effect “creating monsters.”27 He is determined to pursue Augustine aggressively to try to make up for past failings of the office.
He charges Augustine with manslaughter for causing the death in the accident, for which Augustine ultimately gets, at Cannizzaro's urging, a fifty-year sentence. Cannizzaro also charges Augustine with possession with intent to distribute illegal drugs—the drugs he dumped out the window—and, again at Cannizzaro's urging, Augustine gets an additional sentence of fifty years. While Augustine did not have his girlfriend's mother's express permission to drive her car on that occasion, the woman does not wish to press charges. Cannizzaro nonetheless adds this offense to the list and gets another twenty years added onto Augustine's sentence, for a total sentence of 120 years—a sentence several times longer than what even an intentional murder would typically get.28
In this form of shadow vigilantism by prosecutors (and judges), the officials feel morally justified in manipulating the system in order to compensate for past failures of justice.
Prosecutorial overcharging is of two sorts: vertical overcharging, in which the prosecutor charges offenses for which he or she has insufficient proof to convict, and horizontal overcharging, in which the prosecutor charges a series of overlapping offenses arising from the same criminal act.29 In the latter type, prosecutors charge every offense for which a defendant might theoretically satisfy the offense definition, no matter how overlapping the offenses may be. Thus, a prosecutor might take a standard rape case—using force to compel intercourse—and add on “assault, kidnapping, gross sexual imposition, etc.”30 This is made possible because most American criminal codes, in which the state's criminal laws are collected, grow over time to have a vast collection of overlapping offenses.31
Legislatures have been constantly adding new offenses, sometimes making the code seven or eight times longer than its original form based on the Model Penal Code, but without substantially expanding the code's coverage.32 So, for example, most states now have an offense of “carjacking,” after a series of newspaper headlines about such conduct. Does anyone doubt that such conduct was already punished severely as armed robbery (as well as auto theft, kidnapping, assault, etc.)? Adding one more offense to charge was an act of potential showmanship, not criminal code improvement.
The forests of overlapping offenses exist in large part because prosecutors have politically promoted them. Prosecutors have put political muscle into supporting a constant stream of new offenses that typically are just added on top of the old ones. To protect this ability to bring multiple charges, they have repeatedly opposed criminal code reforms that would streamline codes and eliminate unnecessary overlaps. For example, in a new criminal law codification undertaken in Illinois in 2003, which had as one of its primary aims the consolidation of overlapping offenses, the recodification was ultimately blocked by the political opposition of prosecutors.33 The prosecutors instead sponsored a new reform commission that kept the redundancies in the current code.34
Prosecutors’ moral justification for excessive charging might rest on any or all of several different claims, the same sorts of claims heard from police to justify their testilying. First, the criminal justice process has so many barriers to an offender getting the liability and punishment he or she deserves that such excess is needed just to end up with something that approximates what is really deserved.35 In other words, the prosecutor feels that by putting on several extra charges he is getting some insurance. That way, no matter what the court does, the defendant is less likely to escape all punishment. With this insurance policy, the defendant may not do the maximum time but he'll get some sanction. Second, it makes sense to try to get more liability and punishment than an offender deserves for the offense because, given the gross ineffectiveness of the system, the current offense may be just the tip of the iceberg of the offenses he or she has actually committed.36
Finally, many people care little if the overcharging generates undeserved liability for both present and unpunished past offenses. That is not something that ought to be a concern to prosecutors because the criminal justice system has given up any pretense about being a search for justice. It is simply a system of mutual combat between the defense counsel and prosecutors, with winners and losers, the goal of which is to always win and to never lose. Just as the defense counsel see their job as always getting the least punishment they can for their guilty clients, prosecutors, in a symmetrical fashion, should see their job as getting as much punishment as they can for guilty defendants.37
Strategic overcharging might seem to the uninitiated to be too unethical to be done openly. But the increasing game-like features of the system have dulled participants’ sensibilities. Indeed, one need only look at similar manipulative conduct by federal judges before the Sentencing Reform Act of 1984 stopped the practice. Federal law at the time required that all offenders be eligible for early release by the United States Parole Commission no later than after serving one-third of their sentence. Judges who were uncomfortable with this early release could, and did, short-circuit the system by simply determining the sentence they really wanted, then tripling it.38 Thus, offenders would become eligible for release only after serving the full term the judges thought appropriate. Prosecutors may be making similar sorts of strategic manipulations when they overcharge.
It was in part this judicial manipulative practice that contributed to the enactment of the “truth in sentencing” provisions of the Sentencing Reform Act of 1984. People had become increasingly skeptical of the sentences that were publicly imposed because they always ended in early release. The new act requires that an offender serve at least 85 percent of the sentence imposed—an attempt to earn back some credibility for the system.39
WHY SHADOW VIGILANTISM IS SO DANGEROUS, MORE DANGEROUS THAN CLASSIC VIGILANTISM
It could be argued that the manipulations and subversions inspired by shadow vigilantism—of both the official sort discussed in this chapter and the citizen sort discussed in the previous chapter—are not something that, as a practical matter, ought to be of significant concern. We can for the most part ignore these problems because they are only a minor part of the criminal justice process. But the truth is that shadow vigilantism is dramatically more damaging than classic vigilantism.
First, the effect of shadow vigilantism is less dramatic but more pervasive. Shadow vigilantism appeals not just to the unusual person or group willing to be a classic vigilante—willing to openly violate the law in serious ways—but also to more ordinary people. Many people who cannot bring themselves to commit explicit lawlessness can bring themselves to undermine and subvert, through noncooperation, lying, or other lower-level misconduct, a system that they see as being immorally indifferent to serious wrongdoing.
Imagine all the neighbors in the chapter 8 cases who refused to help authorities pursue the classic vigilantes. As we asked in chapter 9, if those neighbors were sitting on a jury for the vigilantes, would they be likely to vote to acquit? If they were the grand jurors or prosecutor in the case, would they want to avoid bringing charges? If they were voting on a proposal to change the rules that led to the failure of justice, would they vote for the change and for a politician who supported the change? It seems highly likely that they would do so in all these instances. The fact that an entire neighborhood can show its willingness to succumb to a shadow vigilante impulse shows the potential
sweep of the problem.
Further, shadow vigilantism is more problematic than the classic form because the criminal justice system cannot effectively deter it in the way it can classic vigilantism. The shadow vigilantes’ conduct may be criminal in some cases, but it also may be only unethical or unjust or unfair in others. The failure to report a crime or to assist investigators is commonly not a crime in the United States.40 And even if it is criminal, it cannot be effectively deterred. If prosecutors have no witness to the crime itself, how can they find a witness to a witness’ failure to report the crime?
Even if the shadow vigilantes’ actions are not morally justified (under chapter 5's rules), they may well believe that they are.41 They probably see themselves in the way civil disobedience protesters might see themselves: they know that what they are doing is inconsistent with the law in spirit if not in fact, but they see the violation as morally justified by the law's own immorality in its indifference to doing justice.
Worse, while shadow vigilantism cannot be as effectively deterred as classic vigilantism can, it is at the same time even more damaging than the latter. Classic vigilantism, by operating openly, serves as a public protest against the system's failures of justice—a call to the system to correct itself. In contrast, shadow vigilantism is generally unseen: failure to cooperate with police and prosecutors, not reporting crimes when they are committed, jury nullification; improper exercise of discretion in charging, sentencing, and other criminal justice decisions; and political support for unjust punishment policies. It provides no public call for reform but instead seeks to remain in the shadows.
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