Shadow Vigilantes

by Paul H. Robinson

  The results of these studies are actually quite surprising, if you think about them. When adult subjects are being tested in a study like this, they come to the study with already formed opinions about the moral credibility of the criminal justice system. There is a limited amount that a researcher can do to shift this preexisting view. But despite the fact that we can only slightly shift subjects’ views, we nonetheless see some change in the willingness of subjects to defer to and comply with the criminal justice system.

  The conclusions of the empirical studies can be summarized this way: criminal law rules that deviate from the community's notions of justice are not cost-free, as has generally been assumed in the past. Rather, when criminal law adopts rules or practices that produce criminal liability or punishment that is seen as a failure of justice or as unjust, the system suffers a loss of effectiveness. To be most effective, the criminal justice system should try to distribute liability and punishment in accord with the shared judgments of justice of the community it governs. In that way, it can build moral credibility and, in turn, gain effectiveness by harnessing the power of social and normative influence.

  THE SYSTEM'S MORAL CREDIBILITY WITH THE COMMUNITY IT GOVERNS

  There is reason to worry that the doctrines of disillusionment like those sketched in chapter 4 and in the appendix may have a detrimental effect in undermining the criminal justice system's moral credibility with the community it governs.

  As the social psychology studies tell us, reputation is primarily a function of perceived motivation.4 It is not the failures of justice themselves that do the damage. Many failures are easily forgiven by a community that understands the practical limits of reliably reconstructing past events and that abhors wrongful convictions and injustice. Doctrines like the beyond a reasonable doubt standard of proof and excluding coerced confessions make sense to people even if some guilty offenders may go free as a result.

  What is damaging to a system's reputation are those instances, like the doctrines of disillusionment, that suggest rightly or wrongly that the system is indifferent to the importance of doing justice: letting clearly guilty offenders who committed serious offenses go free for what seem to many ordinary people to be trivial technicalities, or undermining justice to promote an interest that could be promoted in some other way.

  The doctrines of disillusionment have had their effect. No doubt the US criminal justice system has a better reputation than that of many countries in the world,5 but it still has a quite mixed reputation that could be substantially improved. In a 2013 Gallup poll, only 28 percent of those surveyed said they had a “great deal” or “quite a lot” of confidence in the US criminal justice system.6 It ranked far below the ratings of many other institutions, including organized religion, the military, and small businesses.7 Even the police ranked dramatically higher. At 57 percent, they have more than twice the percentage of people expressing a “great deal” or “quite a lot” of confidence in them. And that reduced confidence in the criminal justice system has been consistent over the past two decades during which the polling has been done.8

  Fig. 12.1. Poster for Jodie Foster's famous revenge movie, The Brave One, as it appeared displayed outside movie theaters, 2007. (Courtesy of Warner Brothers)

  Part of the disillusionment arises from a common view that the courts do not take seriously enough the importance of doing justice. An earlier nationwide survey sponsored by the American Bar Association found that when people were asked whether “the courts let too many criminals go free on technicalities,” 74 percent of people agreed or strongly agreed (only 16 percent disagreed or strongly disagreed).9

  One can understand how the decisions of the Warren Supreme Court in the 1960s could have produced this view, including decisions that applied the exclusionary rule in a variety of contexts and introduced the “fruit of the poisonous tree” doctrine.10 (That doctrine excludes from use at trial not only evidence obtained illegally but also evidence later obtained legally but helped by an earlier illegal seizure. Thus, for example, in a case where evidence is obtained in violation of the rules and is later used as part of the evidence presented to a court to obtain a search warrant, even reliable and compelling evidence obtained under that search warrant is to be excluded as fruit of the poisonous tree.)

  One Texas police chief captured the mood of many at the time of the Warren court's creation of the exclusionary rule: “It's the damnedest thing I ever heard.”11 President Dwight Eisenhower, who appointed Chief Justice Earl Warren, later concluded that doing so had been a mistake in light of Warren's decisions in criminal cases that some described as “handcuffing the police.”12 Many in Congress called for Warren's impeachment following the Miranda decision, making a similar argument that the decision was handcuffing the police rather than the criminals.13 Truman Capote, testifying before a US Senate committee, said, “It seems almost unbelievable to me that the police force of one of our major cities is literally frightened to death to ask the prime suspect a single question for fear that their case against him might be jeopardized.”14 It may be no surprise, then, that from 1965 to 1994 the percentage of Americans saying the courts were too lenient on criminals rose from 47 percent to 85 percent.15

  Another sign of the criminal justice system's reputational difficulties is found in popular culture. Many of the worst failure-of-justice rules were introduced in the 1960s and 1970s, and since that time an entire movie genre has blossomed. The doing-justice-where-the-system-has-failed movie has become a fantasy favorite for Hollywood. Starting with the wildly successful 1970s franchises of Charles Bronson's Death Wish and its sequels, and Clint Eastwood's Dirty Harry movies, it now seems as if most big names have done their vigilante flick, including Jodie Foster (The Brave One), Gerard Butler (Law Abiding Citizen), Kevin Bacon (Death Sentence), Jeremy Irons (Fourth Angel), Liam Neeson (Taken series), Denzel Washington (Man on Fire), Christopher Nolan (the Dark Knight series), Robert De Niro (Righteous Kill), and Michael Douglas (Star Chamber), among many others.16

  It is probably not a healthy thing for a society to have an entire entertainment genre built around protagonists who are seen as heroes because they break the law, and audiences thrilled by it. Indeed, many of the movie protagonists come nowhere near making the claim that their conduct is morally justified, yet many people seem to view these protagonists as champions of justice. Screenwriters must keep close tabs on their audience's sensibilities, given that the success of their movies often depends upon those emotions. That is heroic protagonists must stay within a range of conduct not too far from admirable. What does it say about current popular views that so many movies and so many heroic leading actors and actresses feel comfortable having their characters engage in such gross violations of existing law yet retain their admirable status?

  If the criminal law is to gain the community's support and deference, if it is to have any chance of earning a reputation as a moral authority whose values should be respected and internalized by citizens, it must improve its reputation for caring about the importance of doing justice.

  Stopping the vigilante echo and its downward spiral can be a difficult business. Consider each step in the dynamic that creates the downward spiral, starting with the last step. Can we stop the downward spiral by simply preventing the blowback?

  One good example of blowback is the “Stop Snitching” campaign. Is it a surprise that a community faced with testilying by police, seriously unjust sentences under mandatory minimum statutes, and the wide range of other injustices produced by shadow vigilantism would be sufficiently skeptical of the system so as to urge noncooperation or, even more aggressively, to promote social stigmatization and even intimidation of cooperators? We do not think so. Where “Stop Snitching” takes root, its believers probably think they are morally justified.

  Can we effectively discourage the subversive or manipulative misconduct of citizens and officials, be it testilying or supporting reforms that produce injustices such as mandatory minimums, or any of
the other forms of civilian or official shadow vigilantism? We do not think we can. The shadow vigilantes consider themselves and their conduct to be morally and practically justified. They are acting to correct a criminal justice system that has shown itself to be indifferent to the importance of doing justice and is in breach of the social contract in which it swore to protect the citizens’ persons and possessions and justly to punish wrongdoers.

  Thus, the only effective means of stopping the vigilante echo and its downward spiral is to avoid starting the action and reaction dynamic in the first place—namely by avoiding those rules and practices that regularly and predictably produce the serious failures of justice that provoke shadow vigilantism.

  PERFECTION IS NOT REQUIRED

  This does not mean that the criminal justice system must be perfect. Perfection is obviously impossible, and, more importantly, nobody expects it. People understand that many offenders simply cannot be caught. Even when a suspect is identified, in many cases it is simply impossible with the available facts to reliably reconstruct what happened. And there is a strong consensus that avoiding wrongful convictions ought to be a high priority.

  What is important to potential shadow vigilantes is the system's reputation for wanting to do justice. As social psychologists have made clear, its perceived motivation, rather than its actual performance, is what establishes its reputation.1 The key question is, has the criminal justice system earned a reputation for giving justice the importance it deserves? Or has it instead shown itself willing to sacrifice justice in order to promote other, less important interests or for official convenience?

  It would be hard for shadow vigilantes to morally justify their conduct if the criminal justice system had publicly committed itself to doing justice and avoiding injustice as its top priority and had earned such a reputation that people really believed in this commitment. This is not the system's current reputation, of course, as previous chapters make clear.

  Certainly there are important societal interests beyond doing justice, and sometimes compromises will have to be made. But the system nonetheless could establish its commitment to doing justice by upholding certain principles by which such compromises are struck.

  PREFER NON-JUSTICE-FRUSTRATING ALTERNATIVES

  First, rules and practices producing failures of justice ought not to be tolerated if the interest being promoted could be as effectively promoted through non-justice-frustrating means. Producing a failure of justice ought to be the last option on the list of solutions, not the first, as it too often is seen to be today. Consider, for example, the many alternative—and potentially more effective—means of controlling police conduct other than the exclusionary rule that excludes reliable evidence that is obtained improperly. Automatic administrative sanctions, even criminal prosecution of officers in egregious cases, and easy and automatic civil compensation of all citizens whose rights are infringed (not just criminals) are just two of the alternatives that have been offered.2 (Nothing in the Constitution requires the exclusionary rule, as the Supreme Court has made clear: the Constitution only requires some effective process for deterring “unreasonable” searches and seizures. Many have argued that personal liability of officers would be dramatically more effective than the exclusionary rule, which can allow criminals to go free and has little personal effect on the offending officer.3)

  IN BALANCING COMPETING INTEREST, DON'T IGNORE THE MORAL AND CRIME-CONTROL COSTS OF FAILURES OF JUSTICE

  A second general principle is to publicly acknowledge that every failure of justice has a cost, both a moral cost and a practical crime-control cost, because of the system's reduced credibility and the accompanying reduced deference to it. It follows from this that when doing justice is being traded off against some other interest, there ought to be a clear assessment of the relative societal value of the competing interests.

  Is the societal cost of letting a rapist-torturer-murderer like Melvin Ignatow walk free greater than the societal benefit that comes with extending double jeopardy protection even to defendants who gain acquittal by perjuring themselves at trial? It is not hard to argue that the acquittal does more damage than would the slightly narrower interpretation of the Double Jeopardy Clause that would deny Ignatow the defense.

  Is the societal cost in allowing serial rapist-torturer-murderer Larry Eyler to be held at the police station for questioning several hours too long a greater societal cost than letting him rape, torture, and murder all of those young men with impunity? It is not hard to argue that the balance struck here is out of whack. The acquittal does more societal damage than allowing some flexibility in assessing the extent of prejudice and inconvenience to murder suspects or in using non-exclusionary methods of controlling such police conduct.

  The Europeans take a different perspective on these issues, one that avoids the US problem. The European Charter for Human Rights rejects the fixed-rule approach used in the United States and looks instead to the actual extent of prejudice to the defendant, the seriousness of the offense, and the effect of the decision on the system's reputation for fairness and justice.4 Allowing this kind of assessment of competing societal interests is an enormous step forward that the American criminal justice system has failed to take—a step forward that could avoid many of the most egregious failures of justice that fuel the current shadow vigilante impulse. There is nothing in the US Constitution that prevents this approach; it only requires the judicial imagination to see it as the better path.

  The current system's apparent insensitivity to the importance of doing justice may not produce large numbers of classic vigilantes in the streets, but it has contributed to a disillusionment about the criminal justice system's interest in doing justice. And that disillusionment may well help people increasingly justify subverting the system as shadow vigilantes. In the spirit of the 1851 Vigilance Committee and the 1973 Lavender Panthers, the system's intentional and systemic failures of justice provide the shadow vigilantes with moral justification to take the law into their own hands, not by taking to the streets—typically only Hollywood fantasy does that now—but by manipulating the system to their own ends as they see others doing in order to squeeze justice from it.

  Such shadow vigilantism may be less dramatic than taking to the streets, but it can be pervasive and ultimately more damaging to the integrity of the process. Members of the 1851 Vigilance Committee announced themselves and their doings so people would know their effect. Shadow vigilantism provides an unseen and unaccountable corrupting force that contaminates the entire process because one can never know when it is at work.

  Yet the current approach of the criminal justice system seems to be that it considers itself free to create as much hostility with the community over failures of justice as it sees fit because there is nothing a disillusioned community can do about it. But this seems an arrogant and dangerous short game. There is much that a disillusioned or cynical people can do, beyond distracting themselves by spending billions of dollars going to vigilante hero movies. They can, through many avenues, manipulate the system to force from it what the system often seems reluctant to do. And that subversion can provoke a further disillusioning crime-inducing response.

  We would all—both offenders and the community—be better off if the criminal justice system earned a reputation for doing justice without an outside force pushing it to do so.1 The tragedy of this dirty war is twofold. First, it could have been avoided if the system simply was more sensitive to the importance of doing justice—giving offenders the punishment they deserve, no more and no less. Today's system could be saved by avoiding rules and practices that will predictably frustrate justice, unless there is some truly compelling reason to do so and there is no other, less justice-damaging alternative. (One of us has explored these alternative mechanisms at length, in Law without Justice: Why Criminal Law Doesn't Give People What They Deserve.) Second, forcing the disillusioned into shadow vigilantism often produces results that, in the larger perspective, even the sha
dow vigilantes would find objectionable. Mandatory minimums avoid the problem of unchecked lenient sentencing, but they also produce a stream of cases of predictable injustice.

  No criminal justice system can have a perfect reputation for doing justice. Someone may always think it has improperly allowed a clearly guilty offender to go free, even if the belief is mistaken. But just as the system ought not to give up trying to avoid injustice simply because someone will always claim there is more injustice to be avoided, neither should the system give up trying to avoid failures of justice simply because someone will always claim there are more failures of justice to be avoided. The system can incrementally improve its moral credibility, and thereby its crime-control effectiveness, by reducing its current level of failures of justice.

  Ironically, it is shadow vigilantism that in some ways may be saving some of the justice-frustrating doctrines from themselves, by taking the edge off the credibility loss that the system would otherwise suffer if it were not subverted. That is, if shadow vigilante citizens and officials one day magically stopped all shadow vigilante subversions, the criminal justice system might well essentially collapse under its own justice-frustrating rules and practices. If people actually suffered the full justice-frustrating cost of the doctrines of disillusionment, they might instantly abandon those doctrines because no society could live with the crime-producing results. In other words, it is very possible that the only thing that keeps the doctrines of disillusionment in place is the work of shadow vigilantes who blunt their actual effect.