Further, shadow vigilantism introduces into the criminal justice system serious arbitrariness as well as disparity among cases. That is the level of shadow vigilantism in any given case may be unpredictable, dependent as it is on a variety of factors. That may change from case to case. The officer in one case may be testilying while the officer in an identical case may not be. A witness in one case may refuse to report a crime while the witness in another case may report it. And so on. The operation of the criminal justice system then is rendered wholly arbitrary; identical cases end in very different outcomes.
And this resulting arbitrariness and disparity only contribute in the long run to the system's reputation as being less predictable, more arbitrary, and more unjust. In other words, shadow vigilantism only serves to exacerbate the system's loss of moral credibility, which is what helped trigger the vigilantism in the first place. It invites a downward spiral of lost credibility and therefore increased subversion.
In fact, the destructive dynamic of the downward spiral is even worse than this, as the next chapter details.
As previous chapters make clear, systemic failures of justice provoke shadow vigilantes to subvert and pervert the criminal justice system in order to force justice from it. But it turns out that the distorting effects go beyond those created by the shadow vigilantes. Their subverting and perverting effects provoke others, those personally affected by the effects, to become more hostile toward the system and to themselves react by trying to subvert the system in their own ways. This cycle of action and reaction continues in a downward spiral of the system's increasingly damaged credibility.
All sides would have been better off if the distorting dynamic of systemic failures of justice, shadow vigilantism, and the resulting blowback had never begun. We would be better off going forward if we could avoid the avoidable failures of justice that echo in shadow vigilantism and its blowback.
Frustrated with the criminal justice system's failures to do justice and provide protection, shadow vigilantes manipulate and subvert the criminal justice process in a wide variety of ways, as illustrated in part III. But those manipulations and subversions provoke their own reaction in the form of blowback from those affected by and distortions produced by shadow vigilantes. And in the end, that blowback reaction tragically serves only to further reduce the chance of justice and safety, contributing to a downward spiral that ends in more crime and less justice.
Consider one example of this dynamic (failure of justice → shadow vigilante response → blowback): disgusted by the failures of justice that regularly arise from the “technicalities” by which serious offenders escape criminal liability, shadow vigilante police officers morally justify testilying in court to avoid the technicalities, and shadow vigilante civilians support mandatory minimums to block overly lenient sentencing. But those actions provoke their own reactions.
It soon becomes well-known that police lie in court to avoid the technicalities. The public perception of this in some neighborhoods may not capture the nuance of the officers’ justification (as the only means of avoiding a serious failure of justice) and may well contribute to a belief that police lie in court about anything and everything. Similarly, the use of mandatory minimum sentences soon produces a string of injustices in which criminals are given sentences in excess of what they morally deserve. Both of these perceptions seriously damage the criminal justice system's reputation.
The blowback from such shadow vigilantes’ subversion of the system's justness is most acute in those communities most affected by the lying and the unjust mandatory minimums. And just as the shadow vigilantes were provoked to undermine the system, so too are those affected by the lying and the excessive sentences, along with their friends and acquaintances. It is no big leap for this alienation from the system to manifest itself in action, such as a vocal opposition to cooperating with police and social ostracizing of or retribution for those who do cooperate. In the minds of those in the neighborhood, subversion of the unjust system is morally justified, just as the shadow vigilantes thought their subversion was morally justified.
But opposition to cooperation with police, including, for example, the social or physical intimidation of witnesses, is a self-defeating strategy for any community. It only strengthens the hand of criminals, gives them greater impunity to victimize, and increases their ability to further intimidate witnesses, creating a downward spiral of victimization and community disintegration.
THE “STOP SNITCHING” MOVEMENT GOES MAINSTREAM
At one time, the social norm against cooperating with police—popularly called the “Stop Snitching” movement—was just an underground cultural attitude. But it has gained enough legitimacy in some communities to be a mainstream popular message. Originally expressed in rap lyrics (“Snitches get stitches!”1), the “Stop Snitching” campaign was fed by a 2006 song and DVD titled Stop Fucking Snitchin’ performed by rapper Ice Cube.2 The rap DVD grew into a line of apparel using that phrase as its logo, as well as a follow-up DVD, Stop Snitchin’ 2. The DVDs express threats and violence against witnesses, together with footage of people discussing their desire to kill those who “rat.” The rap artist tells people not to cooperate with local authorities.3 In Newark, New Jersey, T-shirts carry pictures of witnesses who are to be killed, and pilfered witness statements are posted online.4 Sports stars also give legitimacy to the message: “Asked…how many pro athletes from high-crime areas would help identify criminals…Baltimore native and NBA veteran Sam Cassell said ‘One hundred percent of them would say no. A hundred. If I see five guys doing something [illegal] on the street, I'm going to look the other way and hope I don't see no more.’”5
Fig. 11.1. Stop Snitching urban art project, 2013. (Courtesy of TrustoCorpMiami)
Ice Cube and Cassell made clear the norm against snitching that has taken hold on the streets of many American cities, including Newark, Baltimore, Philadelphia, Dallas, and Washington, DC. As legal scholar Jamie Masten explains, “The Stop Snitching movement has found its tipping point and is now infectiously sweeping through the public…. This code is being adhered to not only by prisoners, but by thirteen-year-old girls in school, middle-aged neighbors across the street, and ordinary citizens who would rather run away from the police instead of to them.”6
The phenomenon is intricately woven into the social fabric of many urban communities. As the deputy attorney general overseeing the Essex County Prosecutor's Office in New Jersey explains that “the number of witnesses who remain silent because they fear for their safety is probably less than one-tenth the number who refuse to talk because they fear the social repercussions.”7 People are afraid to help because they fear becoming social outcasts, shunned by neighbors.
Nobody feels the painful effects of the social pressure against cooperation more than those grieving the loss of loved ones. One mother who lost her son to violence has gone door to door in her neighborhood, seeking answers about the murder. But no one will offer her any information. She admits that if she were on the other side of the case, she might not help either. She explains that “snitching, telling on people, isn't something that I personally would involve myself with. People don't want to talk to you if they think you're a snitch. If they were your friends, they're not your friends anymore. You're left totally all alone.”8
Her neighbors’ reluctance to help with the investigation is based on a social norm that has a root in the community's “deep distrust of the local police and prosecutors and politicians…. [R]acial profiling, police corruption and the excesses of the war on drugs have made them suspicious of virtually any arm of government.”9 For communities that are disproportionately impacted by these excesses, it is easy to understand why they see the criminal justice system as an enemy to be subverted rather than an institution worth supporting and helping. Harvard law professor Charles Ogletree expressed it this way: “A lot of white Americans from suburban communities can't understand why people wouldn't talk to law enforcement. But in a lot of in
ner-city communities, there is so much hostility to the police that many people of color can't fathom why someone would even seriously consider helping them.”10
Besides a pervasive distrust of the criminal justice system and its officers, many people have more practical reasons for not aiding in investigations. Consider the complicated social and economic realities in many poor, tight-knit communities. One resident, explaining his lack of cooperation with police, says that drug dealers and gang members are often the lifeblood of the local economy. “[M]aybe the parents are out of work and [money from selling drugs] helps them put food on the table,” he says.11 Without the income from their illegal activities, many residents would have a significantly more difficult life.
There is also a concern that, in assisting the police, one's own criminal history may come to light. When police take a statement from someone with a criminal record and run the name, they might find an outstanding warrant. In such cases, the citizen is arrested effectively because he or she offered information to the police.12 Or a person may have been engaging in illegal activities himself, such as drug dealing, when he witnessed a more serious offense, such as murder.
Those who choose to help the police in spite of these harsh realities often do so clandestinely for fear of danger to themselves or their families. In some cases, they communicate with detectives by leaving notes in trash cans, or asked to be taken away in handcuffs so that “neighbors will think that they're in trouble with the police and not cooperating.”13
All of these factors have created an environment in many communities in which ordinary citizens would rather help the criminals than have them punished in a criminal justice system they have come to distrust and disrespect. Indeed, ordinary citizens wear shirts with messages that threaten those who cooperate, and children cheer in the streets when police get into car accidents.14 It is part of the “rules of the game” that one has to follow when living in such a community.15 As a result, investigators report that when they arrive at a crime scene, bystanders often leave in order to avoid neighbors thinking that they might cooperate with police. Police struggle to receive cooperation in “even the worst crimes.”16
But, of course, the success of the movement only feeds the vicious cycle by making effective prosecution of serious crimes more difficult, which increases disillusionment with the criminal justice system. With the intimidators winning the battle with authorities over public allegiance, the power of intimidators only reinforces the impunity with which they can intimidate further, and that in turn gives them a freer hand to commit more offenses. In other words, the “stop snitching” response is a recipe for disaster for the neighborhood. The lack of cooperation reduces the system's crime-control effectiveness, which further damages its reputation, leading to less credibility and less cooperation in an endless downward spiral.
THE PREVALENCE OF WITNESS INTIMIDATION IN COMMUNITIES THAT ARE INJURED BY SHADOW VIGILANTISM
In many neighborhoods, social pressures against cooperating with police have legitimized or at least given rise to social ambiguity of gang violence against witnesses, for it is expected that those who fail to follow the social norms of stop snitching will face threats and even outright violence. A gang leader in a Newark jail awaiting trial for murder put it quite clearly. When asked about the existence of a potential witness against him, he flatly dismissed the idea of a witness testifying. “What's Bam-Bam [the potential witness] going to do, take his plea deal, do his 12 years in protective custody? Then what? What's he going to do when he gets out? Where's he going to go where no one will be able to find him?”17 The threat facing “Bam-Bam” hangs over the head of the entire community. Even a Newark grandmother, who watched her little granddaughter die in a gang shooting, refuses to cooperate with police. When pressed why, she fears she would “have to move out of the country.”18
One might wonder if better witness protection might reduce the threat, but witnesses still face risk of intimidation and attack in police custody. In 2005, a witness to a murder is in protective custody when someone summons him to the door of his cell. The person sprays the witness with a mixture of water and baby oil that had been heated in a microwave, causing serious burns. When asked why he had done it, the attacker replied that he had heard the person was a snitch.19
The statistics on witness intimidation show the growing extent of this alarming trend.20 A study of witnesses appearing in Bronx County, New York, indicated that at least 36 percent of witnesses had been directly threatened and that among those not explicitly threatened, 57 percent feared that they would be subject to reprisals.21 A study conducted by the National Youth Gang Center indicated that 88 percent of urban prosecutors have described witness intimidation as a serious problem. In cities such as Baltimore and Boston, prosecutors estimate that witnesses face some kind of intimidation in nearly 80 percent of all homicide cases, while in Essex County, prosecutors claim that at least two-thirds of their witnesses in homicide cases receive direct threats not to testify. The New York Times reported in 2015 that roughly 30 percent of shooting victims in New York City refused to cooperate with investigators.22 As violence against witnesses becomes more prevalent, the mere possibility of being killed is effective enough; no overt threat is needed.
Such pervasive intimidation has dramatically impeded the ability of law enforcement to investigate crimes and limited the number of cases prosecutors can bring to court. One US senator described the problem of witness intimidation this way: “The bad guys are willing to use tactics that the good guys haven't yet figured out how to deal with.”23 An insider report on the Essex County Homicide Squad (encompassing the city of Newark) revealed that police “see an unconquerable fear that keeps witnesses from coming forward and street intimidation that makes some recant. Police can solve a murder. Getting a conviction is a different story. Many killers walk, to kill again.”24 In St. Louis, city prosecutors have had to drop over half of their criminal cases in some neighborhoods because the witnesses, and even victims themselves, refused to cooperate.25
Without reliable witnesses, prosecutors are often forced to pursue charges for lesser crimes that can be caught on tape or through police stings. This takes some drug users and petty criminals off the streets but leaves the more hardened criminals to continue in their ways unimpeded. This creates what one public defender describes as a “scary message”: the more serious the crime, the easier it is to get away with it.26 The data bear this startling reality out: between 1998 and 2006, arrest rates for murders in Essex County, for which Newark is the major population base, decreased almost by half, from 81.1 percent to 41.8 percent.27 During that same period, homicide arrest rates for the state as a whole increased from 84.7 percent to 91.7 percent.28 (The actual number of murders in Essex County was 90 in 1998 and rose to 112 by 2006.)29 Baltimore, in explaining its declining arrest rate for murders, has “attributed it largely to an increasing unwillingness from the public to come forward with tips in today's ‘Stop Snitching’ culture.”30 Regardless, this unfortunate data has led to criticism of police and prosecutors in these cities for letting more and more violent criminals remain on the streets.31
Prosecutors have also watched in horror as the witnesses they are relying on in serious crimes turn up dead. In New Jersey, there are dozens of examples of homicide cases set to go to trial, only to have the case collapse after a witness is intimidated or killed.32 The Essex County Prosecutor's Office sees the problem too. To combat the rising death toll of witnesses and the number of cases that fall apart upon reaching trial, the office has “established an unwritten rule discouraging pursuit of cases that rely on a single witness, and those in which witness statements are not extensively corroborated by forensic evidence.”33
This unofficial policy is based on two competing rationales. First and foremost, prosecutors want to protect witnesses. The state and county do not have the resources to protect them, and witnesses know this.34 Some gangs are so notorious for violence against witnesses that police turn
down offers of information about them in order to protect witnesses.35 A member of the New Jersey State Police Street Gang Unit said, “You've got to keep them from disappearing or getting hurt. Can we protect them? Maybe. But God forbid that two years later you have to tell someone their husband or father got killed. I don't want to have to live with that.”36
Fig. 11.2. The body of Deshawn McCray who was killed to prevent his testifying in a drug case in 2004. (Courtesy of United States Attorney's Office)
The other rationale for the policy is based on practicality. With a crushing load of cases, the prosecutors cannot afford to waste time on cases where there is only a single eyewitness who may recant his or her statement—or worse.37 Prosecutors also consider double jeopardy. If a case falls apart at trial because a witness does not show or refuses to testify truthfully because of intimidation, the defendant cannot be retried. (Recall the case of Melvin Ignatow, in chapter 4, in which the courts interpreted the double jeopardy prohibition as barring retrial even if the defendant procured his false acquittal through perjury.38) With only one chance to convict a murderer, prosecutors want to make certain they have the evidence to do it successfully.
Other cities and counties with comparable problems have adopted similar approaches. Newark's unofficial policy is similar to a formal one adopted by the Baltimore state attorney. She has explicitly barred her attorneys from filing charges in any single-witness case without extensive forensic corroboration.39 Even the governor of New Jersey has suggested that police should “use civilian witnesses sparingly.”40 While these leaders have the best intentions at heart, their words show that the criminal justice system is being cowed into retreat by the very people it is supposed to restrain, creating a “self-perpetuating cycle of intimidation and helplessness.”41
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