Shadow Vigilantes

by Paul H. Robinson

  These prosecutorial policies necessitated by witness intimidation have resulted in numerous known murderers continuing to walk the streets.42 It is perhaps no surprise that Essex County, with its unspoken rule that single-witness homicides generally will not be prosecuted, has one of the most dangerous cities in the country.43 Newark boasted a murder rate of 40.3 per 100,000 residents in 2013, more than three times the average of comparably sized cities, and nearly nine times the national average of 4.5.44

  THE DEVASTATING EFFECT OF WITNESS INTIMIDATION ON EFFECTIVE PROSECUTION

  If one has any doubt about the utterly tragic consequences of witness intimidation, consider two cases.

  The Murder of a Heroic Witness

  Dennis Brown is sitting on a park bench with a few friends: three eighteen-year-old girls and Bobby Gibson. At around 8:00 p.m. the group notices two young men on bikes quickly approaching. One of them is Wesley Sykes, a known member of a notoriously violent street gang called the Bloods.45

  “You disrespected my family,” Sykes says. He opens fire, killing Dennis.46

  The others flee and tell the authorities what they know: a man with a “messed-up eye” shot at them, killing Dennis.47 They arrest Sykes and prepare for a trial.

  The Bloods, however, decide that Sykes will not be convicted. Shortly after prosecutors give the defense attorney the list of potential witnesses, Turf, a relative of Sykes and a member of the Bloods, finds Gibson and the three girls—and gives them each a simple proposition: “lie or die.”48 “Take my money and lie,” Turf said, “or take a bullet.”49

  The girls are terrified. They do not want their friend's murderer to go unpunished, but they are also afraid that they will be killed before the trial if they do not agree to lie.

  The three girls take Turf's $2,000, and he takes them to Sykes's attorney's office. Turf watches as each girl signs new statements fingering someone else in the murder. Bobby Gibson, however, refuses to change his story. He knows what the girls have been forced to do, and he understands that they will be in danger if they refuse. But he is determined to do justice by his friend.50

  Thirty-six hours after the defense receives the prosecution's trial witness list, Turf discovers Bobby's name and address. The gang member walks to Bobby's home, sees him on the porch, and shoots him dead in broad daylight.51

  The Killing of a Witness to the Killing of a Witness

  On September 15, 2004, Shareef “Sug” Thomas and Louis Bey, two other members of the Bloods, are walking the streets of Newark, New Jersey.52 The two men, with nothing better to do, decide to rob someone. They walk to a parking lot, where they find Edwin Reyes-Cruz and Carmen Estronza. Thomas and Bey immediately draw their guns and order Reyes-Cruz to hand over all of his money. Reyes-Cruz does, and then Thomas shoots him in the head, killing him instantly. Estronza is the only witness to the crime.

  Thomas and Bey are worried about Estronza, so using their Bloods connections they arrange to have her killed. Michael Melvin, a twenty-year-old gang member, is given the assignment.

  Two months later on Thanksgiving Day of 2004, Estronza is enjoying an evening with friends Camilo Reyes, Kyhron Ward, and Jermeil Ward at a local bar. At about 2:30 a.m., Estronza and her friends leave the bar, where they meet Melvin. Melvin, with the help of two other men, marches the four victims to a vacant lot next to St. Thomas Aquinas Roman Catholic Church. Melvin orders his four victims to lie down on the ground, then fires one shot into each of their heads.

  Without their witness, the prosecutors are compelled to drop Bey's murder charge. Melvin now decides to eliminate the men who helped him with the murders in case they decide to turn on him.

  Melvin takes care of his first accomplice about a year later, on November 8, 2005, when he approaches him and fires multiple shots at his friend, killing him quickly. However, the victim's girlfriend witnesses the shooting and begins to scream. Melvin approaches the woman and begins to pistol-whip her. The commotion causes a neighbor to call the police.53 They arrive and take Melvin into custody.

  While he is in custody, several local residents tell police that Melvin is also responsible for the quadruple homicide from the prior year, which he committed in order to silence Estronza. Melvin is charged with the five murders. But while awaiting trial, Melvin uses his connections to the Bloods to organize the death of the other witness to the Estronza killing, which he figures will clear him of the charges of the quadruple murder. The hit succeeds, and Melvin's murder charges for the killing of Estronza and her three friends are dismissed due to a lack of evidence.54

  It does not take much imagination to see the destructive consequences of the downward spiral of witness intimidation. The more easily criminals can get away with witness intimidation, the more powerful the criminals become. This leaves them freer to victimize others and intimidate more witnesses, all with impunity. Increased witness intimidation begets increased power and control over the community, which makes the threat of witness intimidation even more real and therefore more effective.

  Yet, one of the primary blowback effects of shadow vigilantism is a loss of credibility in the system that encourages and legitimizes the noncooperation of witnesses and the intimidation of those who do cooperate. In a culture in which “snitching” has come to be seen as condemnable, the gangs’ use of witness intimidation benefits from a cloak of moral ambiguity.

  OTHER DOWNWARD SPIRAL DYNAMICS

  The discussion so far has focused on an example of one particular downward spiral: (1) legal “technicalities” and lenient sentencing (doctrines of disillusionment) lead to (2) testilying and mandatory minimums, respectively (shadow vigilantism), which lead to (3) blowback (e.g., the “Stop Snitching” campaign), which inexorably leads to (4) less justice and more crime. But this is something of an oversimplification.

  In the full picture, step 1 includes not just legal “technicalities” and lenient sentencing but essentially all of the doctrines of disillusionment illustrated in chapter 4. This includes the exclusionary rule that prevents the introduction of reliable evidence, which released Larry Eyler to kill more young men. The use of technical defenses for the guilty, as occurred with Ignatow, who escaped from torture-murder-rape liability by perjuring his way to an acquittal. A commitment to obscure rules rather than promote fairness, as in the release of the murderer Charles Devol Mapps because a thirteenth juror voted guilty. As well as a legal culture that treats the criminal justice process as a game in which the best tricks win, as when Kevin Healy escaped prosecution for murder when his counsel tricked the judge and prosecutor into delaying the case past the speedy trial deadline.

  And in step 2, the resulting frustration of the shadow vigilantes expresses itself not only in testilying and mandatory minimums, discussed in the illustration above, but in a wide range of conduct by citizens and officials: refusing to indict or to convict a vigilante or person using excessive force against a criminal, supporting all manner of unjust and Draconian criminal law reforms, or any other of the shadow vigilante conduct discussed in part III.

  The effect of these many forms of shadow vigilantism produces, in step 3, alienation and blowback. Recall, for example, the 1992 Los Angeles riots, triggered by the prosecution's reluctance to charge the officers in the beating of Rodney King and the ultimate jury nullification that led to their acquittal.55

  Add to the Stop Snitching movement other similar movements, which may reduce people's willingness to cooperate with police and, as we have seen in other instances, unintentionally inspire extremists, for example, snipers who gunned down police officers in Dallas and Baton Rouge. Again, these developments produce their own reactions, such as the so-called Ferguson effect, in which police are less likely to engage in proactive policing both because they fear sparking criticism and because they see little reason to put themselves at risk for an unappreciative community. But, as with the Stop Snitching movement, this dynamic can only end up hurting the community—especially when African Americans already have grossly dispro
portionate victimization rates.56 The downward spiral deepens, producing less cooperation, more crime, less justice, more disillusionment, and so on.

  This is the destructive result of the vigilante echo, in which the distortions created by shadow vigilantism reverberate back in a blowback reaction that further degrades the criminal justice system. And that degradation—less justice and more crime—only feeds the discontent of the shadow vigilantes and inspires them to distort the system further, which only feeds the injustice and distrust that trigger blowback. Is there no means of stopping this vigilante echo?

  As parts I and III document, ordinary people are commonly disillusioned about the criminal justice system's apparent indifference to the importance of doing justice. Both citizens and officials in the criminal justice process are inclined to manipulate and distort the system in order to force the justice that they see the system as reluctant to pursue. Certainly these are not desirable results. But perhaps they can be effectively dealt with simply through the criminal prosecution of vigilantes, both the classic and the shadow type? Perhaps that will stop the vigilantes and end the problem?

  PROSECUTING VIGILANTES

  If the perceived egregious failures of justice incline people toward classic vigilantism, presumably the system can simply deal directly with the legal violations by prosecuting the vigilantes. But this may not be an ideal solution. The prosecution of vigilantes may only increase, exaggerate, or expand the community's disillusionment with a system that is apparently unable to effectively punish serious wrongdoers yet is somehow able to punish those who step in to do the government's job. That is hardly good advertising for the system. The prosecution of vigilantes, especially those seen by the community as having some moral justification for their conduct, could change a community's view from a feeling that the system is simply indifferent to the failure-of-justice problem to a feeling that the system is openly hostile to solving it.

  The prosecution of shadow vigilantes, in contrast, is not only unwise for the same reasons but also essentially impossible (as discussed at the end of chapter 10). Much of what shadow vigilantes do is not criminal, such as refusing to report a crime or to help investigators, refusing to indict or voting to acquit classic vigilantes or those who use excessive or unnecessary force to defend against criminals, exercising discretion to not prosecute or to sentence overly leniently in such vigilante or excessive force cases, or to vote for unjust and Draconian criminal law legislation. Where shadow vigilantes do break the law—such as with testilying—it is generally impossible to prove the offense beyond a reasonable doubt, which is why shadow vigilante officers are willing to engage in such conduct.

  But even if prosecution of classic and shadow vigilantes was possible, it would not solve the problem, for the disillusionment and alienation provoked by systematic and avoidable failures of justice carry their own costs: even without vigilantism, they undermine the criminal justice system's moral credibility with the community, and thereby undermines its social and normative influences.

  The point has been made in greater detail elsewhere, in particular in the scholarly monograph Intuitions of Justice and the Utility of Desert.1 But we sketch the main points here.

  SHOULD THE CRIMINAL LAW CARE WHAT THE LAYPERSON THINKS IS JUST?

  In our 2015 book, Pirates, Prisoners, and Lepers: Lessons from Life outside the Law, using modern behavioral science studies and case studies from many periods in history, we document and illustrate how fundamental and deep-seated the desire for justice is by people across demographics and cultures. The case studies make clear that doing justice is not just another mild preference that people have. And failures of justice are not just another item on a list of disappointments that people have about their lives.

  For laypersons, failures of justice can cause deep disappointment and even dramatic upset. The woman outraged by the light sentence for her husband's killer reported that it made her physically “sick to my stomach.” People shocked by a justice failure have complained that it is “absolutely unconscionable,” that it “keeps me up at night,” that “it's a travesty,” that “it's unbelievable and I am devastated,” and that “it's insanity.” The upset over a justice failure may be even more exaggerated for a victim; as one stated, “I will forever live with this shadow.” Another said, “There's a sea of emotions I've had since this happened…. I find [the lenient sentence] very insulting.” A rape victim explained she will “be forever marked” by the crime and the case's “embittering conclusion.” To laypeople, justice is not just one more policy preference but rather a necessary prerequisite for having their world be right.2

  What people want, and demand, is criminal liability and punishment based on notions of moral desert: doing justice, giving an offender the punishment he or she deserves, no more, no less.

  Should criminal law track these community views of justice? It can be argued that there is democratic legitimacy in having criminal law reflect community views. After all, much of criminal law reflects our value judgments about what is and is not condemnable, about what is and is not harmful, and about the relative seriousness of different sorts of harms. Many of these choices are subject to a society's shared value judgments rather than being a product of strict logical analysis. Certainly, many moral philosophers and political scientists will argue that these value judgments ought to be guided by community views rather than by purely logical assessment. There is nothing new about these sorts of arguments.

  What is new is evidence to suggest that there is not just democratic legitimacy in tracking a community's views but also crime-control effectiveness in doing so. That is, a criminal law that is perceived by the community as being a reliable moral authority in assessing criminal liability and punishment is a criminal law that will gain cooperation, compliance, and normative influence. In contrast, a criminal law that is seen by the community as regularly doing injustice and failing to do justice is one that is likely to provoke resistance and subversion and to lose the power to harness social and normative influence.

  These conclusions are probably apparent from a variety of historical examples. No doubt we can all think of a number of examples of notoriously arbitrary or corrupt criminal justice systems with little or no moral credibility with the population they govern. Think of the former Soviet Union. The only means by which these systems maintain order is often through brutal and extensive reliance upon coercive police power. And when that source of control weakens, the crime rate dramatically increases. On the other hand, where a criminal justice system has earned a reputation for being fair and just, people are inclined to defer to it and to comply with its demands even when there is no coercive police power looking over their shoulders.

  What social scientists have done in the last two decades is to show that this dynamic relationship—a criminal justice system's reduced moral credibility reduces people's willingness to defer to it and comply with it—not only exists in cases of extreme loss of moral credibility but also defines a continuous relationship; that is, a marginal decrease in moral credibility of the criminal justice system produces a marginal decrease in people's willingness to defer to it and comply with it.

  Why should it be the case that undermining the system's moral credibility undermines its crime-control effectiveness? Here's why: The forces of social influence and internalized norms are potentially enormous. A criminal law that has earned moral credibility with the people can harness these powerful normative forces through a variety of mechanisms. A criminal law that has damaged its moral credibility cannot.

  First, a criminal law with moral credibility can harness the power of stigmatization. Many people will avoid breaking the law if doing so will stigmatize them, socially brand them as lawbreakers, and thereby endanger their personal and social relationships. A criminal law that regularly punishes conduct that is seen as blameless or at least not deserving the condemnation of criminal liability, or that regularly chooses not to punish conduct that is clearly condemnable and blamew
orthy, will be unable to harness the power of stigmatization. Feelings of shame and embarrassment can have a role in shaping behavior, and a criminal law that is seen as morally on track can harness this force. People do not wish to be viewed as outcasts because of their immoral behavior. The criminal law's ability to stigmatize depends upon the reputation it earns for itself in matching criminal liability with the amount of blame the person deserves. Conduct that is deemed criminal is that which the community considers so unacceptable that punishment is warranted.

  Second, a system that has earned moral credibility with the people can help avoid vigilantism. People will be less likely to take matters into their own hands if they are confident that the system is trying hard to do justice.

  Third, a reputation for moral credibility can avoid inspiring the kind of resistance and subversion that we see in criminal justice systems with poor reputations. Such resistance and subversion can appear among any of the participants in the system. Do victims report offenses? Do potential witnesses come forward to help police and investigators? Do prosecutors and judges follow the legal rules, or do they feel free to make up their own? Do jurors follow their legal instructions, or do they make up their own rules? Do offenders acquiesce in their liability and punishment, or do they focus instead on thinking an injustice has been done to them? Is the system swamped with technical appeals because the guilty view the system as a game that can be beaten?

  Finally, the most powerful force that comes from a criminal justice system with moral credibility is its power to shape societal norms and to cause people to internalize those norms. If criminal law has earned a reputation for doing justice, then when the law criminalizes some new form of conduct or makes some conduct a more serious offense than it had previously been, the community assumes from this legal action that the conduct really is more condemnable.

  Consider the results of just one study about this dynamic between the system's moral credibility and people's deference to it. Subjects were tested to determine their willingness to defer in the variety of ways just described: whether they would help investigators, or report an offense, or take criminalization to mean that the conduct really was morally condemnable, and so on. With this baseline established, the subjects were then told of a variety of real cases in which the criminal justice system had done serious injustice or failed to do justice. The testing confirmed that this information tended to disillusion the subjects about the criminal justice system. After some other activities to distract them, the subjects were tested again on their views on deference and compliance, and their willingness to defer and comply had in each instance weakened.3