Shadow Vigilantes

by Paul H. Robinson

  46. de la Vega and Galloway, “Three Strikes of Injustice,” 2:02.

  47. Taibbi, “Cruel and Unusual Punishment.”

  48. The Stanford Law School Three Strikes Program helped get Shane Taylor's sentence revised, and he was released after serving fifteen years in prison. See Donald, “Stanford Law's Three Strikes Project.”

  49. Taibbi, “Cruel and Unusual Punishment.”

  50. California amended the three strikes law in 2012. Now only serious or violent felonies qualify. Encyclopedia of American Politics, s.v. “California Proposition 36, Changes in the ‘Three Strikes’ Law,” 2012, https://ballotpedia.org/California_Proposition_36,_Changes_in_the_%22Three_Strikes%22_Law_(2012) (accessed June 22, 2017).

  51. To be fair to the judges of that period, some of the improperly lenient sentencing was a product of theories of rehabilitation or other punishment theories that were not based on what an offender deserved or did not deserve but rather on other goals that were influential at the time. The sentencing policy landscape has changed. In the only amendment to the Model Penal Code since its enactment in 1962 (the code is the basis for criminal codes in three-quarters of the states), the American Law Institute in 2007 dramatically altered the sentencing purposes provision of the Model Code to set desert as the dominant purpose, which can never be violated. That new clarity of purpose, together with the use of carefully constructed sentencing guidelines, can avoid the problem of improperly lenient sentences and thereby eliminate the need for mandatory minimum sentences.

  52. This factual account is based on Katherine Ramsland, “Willie Bosket,” Crime Library, http://www.crimelibrary.com/notorious_murders/young/bosket/1.html; Fox Butterfield, “A Boy Who Killed Coldly Is Now a Prison ‘Monster,’” New York Times, March 22, 1989, http://www.nytimes.com/1989/03/22/nyregion/a-boy-who-killed-coldly-is-now-a-prison-monster.html?pagewanted=all&mcubz=1 (accessed June 22, 2017); John P. Woods, “New York's Juvenile Offender Law: An Overview and Analysis,” Fordham Urban Law Journal 9 (1980): 1.

  53. Butterfield, “Boy Who Killed Coldly.”

  54. Fox Butterfield, All God's Children: The Bosket Family and the American Tradition of Violence (New York: Vintage, 1995), p. 213.

  55. “Outrage to Keep Teen-Aged Killer in Pen,” Spokane (WA) Daily Chronicle, July 2, 1981, p. 15.

  56. Ramsland, “Willie Bosket.”

  57. “Outrage to Keep Teen-Aged Killer.”

  58. For the aftermath of this story, see the postscript.

  59. According to John P. Woods, “These crimes are: second degree murder (including felony murder where the juvenile is criminally responsible for the underlying crime), first degree kidnapping, first degree manslaughter, first and second degree arson, first degree burglary, first degree sodomy (where force is used or the victim is incapable of consent but not where the victim is less than eleven), second degree burglary (where the defendant is armed, causes physical injury, uses or threatens use of a dangerous instrument or displays what appears to be a firearm), first degree rape (or by forcible compulsion or where the victim is incapable of consent), first degree robbery and second degree robbery (where the defendant causes physical injury or displays what appears to be a firearm), first degree assault (where a serious physical injury is caused by a deadly weapon or dangerous instrument or where the victim is intentionally maimed) and attempted murder and kidnapping.” John P. Woods, “New York's Juvenile Offender Law: An Overview and Analysis,” Fordham Urban Law Journal 9 (1980): 1, 25.

  60. Ibid., p. 25.

  61. Office of Juvenile Justice and Delinquency Prevention, “Estimated Number of Homicide Victims of Juvenile Offenders, 1980–2011,” Statistical Briefing Book, December 16, 2014, http://ojjdp.gov/ojstatbb/offenders/qa03105.asp?qaDate=2011 (accessed June 22, 2017).

  62. Patrick Griffin et al., “Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting,” Office of Juvenile Justice and Delinquency Prevention, National Report Series Bulletin, September 2011, https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf (accessed June 22, 2017).

  63. “All States Allow Juveniles to Be Tried as Adults in Criminal Court under Certain Circumstances,” Office of Juvenile Justice and Delinquency Prevention, National Report Series Bulletin, June 2003, https://www.ncjrs.gov/html/ojjdp/195420/page4.html (accessed June 22, 2017).

  64. This factual account is based on Erik Eckholm, “Juveniles Facing Lifelong Terms Despite Rulings,” New York Times, January 19, 2014, https://www.nytimes.com/2014/01/20/us/juveniles-facing-lifelong-terms-despite-rulings.html?mcubz=1 (accessed June 22, 2017); Clara McLaughlin, “Boy 15, Gets 70 Years for Attempted Murder,” Florida Star Online, May 16, 2010, http://www.thefloridastar.com/boy-15-gets-70-years-for-attempted-murder/ (accessed June 22, 2017).

  65. The third charge, aggravated battery, is dropped. McLaughlin, “Boy 15, Gets 70 Years.”

  66. See generally Eckholm, “Juveniles Facing Lifelong Terms”; Cara H. Drinan, “Misconstruing Graham & Miller,” Washington University Law Review 91 (2014): 785. Appeals are filed by Gridine's public defender, who argues that “a 70-year sentence imposed upon a 14-year-old is just as cruel and unusual as a sentence of life without parole” (Eckholm, “Juveniles Facing Lifelong Terms”). Gridine's public defender, Gail Anderson, argues before the Florida court in September: “Mr. Gridine will most likely die in prison.” (Eckholm, “Juveniles Facing Lifelong Terms”). Despite this argument the court upheld the verdict and sentence, leaving Gridine in prison for a very long time to contemplate the rash actions he took as a fourteen-year-old boy.

  67. State v. Green, 348 N.C. 588, 593 (1998).

  68. The Supreme Court of North Carolina upheld the sentence of life plus twenty years, stating it was severe but not cruel and unusual. Ibid., p. 612.

  69. Naovarath v. State, 105 Nev. 525 (1989).

  70. State v. Pittman, 373 S.C. 527 (2007).

  CHAPTER 10. CRIMINAL JUSTICE OFFICIALS AS SHADOW VIGILANTES

  1. This account and the following is based on United States v. Sheard, 473 F. 2d 139 (D.C. Cir. 1972).

  2. Ibid.

  3. George C. Thomas III, “Lost in the Fog of Miranda,” Hastings Law Journal 64 (2013): 1501.

  4. Alan Dershowitz, The Best Defense (New York: Random House, 1982), p. xxi.

  5. Michelle Alexander, “Opinion: Why Police Lie under Oath,” New York Times, February 2, 2013, http://www.nytimes.com/2013/02/03/opinion/sunday/why-police-officers-lie-under-oath.html?mcubz=1 (accessed June 22, 2017), quoting Peter Keane, San Francisco police commissioner: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”

  6. Larry Cunningham, “Taking on Testilying,” in Crime & Justice in America: Present Realities and Future Prospects, 2nd ed., ed. Wilson R. Palacios, Paul F. Cromwell, and Roger G. Dunham (Saddle River, NJ: Prentice-Hall, 2002), p. 26.

  7. David Kocieniewski, “NY Pays a High Price for Police Lies,” New York Times, January 5, 1997, http://www.nytimes.com/1997/01/05/nyregion/new-york-pays-a-high-price-for-police-lies.html?mcubz=1 (accessed June 22, 2017).

  8. Orfield quoted in ibid.

  9. Jon Loevy, “Truth or Consequences: Police ‘Testilying,’” ABA Litigation 36 (Spring 2010): 13–14, citing Myron W. Orfield, Jr., “The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers,” University of Chicago Law Review 54 (1987): 1016.

  10. Myron W. Orfield, Jr., “Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts,” University of Colorado Law Review 63 (1992): 75, 83.

  11. Milton Mollen, Commission to Investigate Allegations of Police Corruption and the Anti-corruption Process of the Police Department (New York: Commission, 1994), p. 36.
<
br />   12. Ibid., p. 38.

  13. Wayne Pethrick and Brent E. Turvey, “Cognitive Ethos of the Forensic Examiner,” in Forensic Criminology, ed. Wayne Pethrick, Brent E. Turvey, and Claire E. Ferguson (Burlington, MA: Elsevier, 2010), p. 118.

  14. Loevy, “Truth or Consequences,” p. 29.

  15. Case Comment, “Effect of Mapp v. Ohio on Police Search and Seizure Procedures in Narcotics Cases,” Columbia Journal of Law and Social Problems 4 (1968): 94–95.

  16. Nick Malinowski, “Testilying: Cops Are Liars Who Get Away with Perjury,” Vice, March 2013, http://www.vice.com/read/testilying-cops-are-liars-who-get-away-with-perjury (accessed June 22, 2017).

  17. Alan Dershowitz, “A Police Badge Is Not a License to Commit Perjury,” San Diego Union-Tribune, April 4, 1991, B11.

  18. Orfield, “Deterrence, Perjury,” p. 75.

  19. This narrative was compiled from the following sources: Gus Burns, “Ramiro Sanchez Gets 6-Plus Years for Rape of Girl with Down Syndrome That Enraged Southwest Detroit,” Mlive, March 28, 2014, http://www.mlive.com/news/detroit/index.ssf/2014/03/ramiro_sanchez_gets_6-plus_yea.html (accessed June 22, 2017); Erinn Cawthon, “Detroit Man Beaten after Neighbors Say He Raped Teen, Cite Slow Police Response,” CNN, August 14, 2013, http://www.cnn.com/2013/08/14/us/michigan-suspect-beaten/ (accessed June 22, 2017); Jim Schaefer, “Detroit Neighborhood Takes Vigilante Action against Rape Suspect,” Detroit Free Press, August 11, 2013, http://www.freep.com/article/20130811/NEWS01/308110005/hubbard-farms-rape-vigilante-justice-assault-teenage-girl (accessed June 22, 2017).

  20. Schaefer, “Detroit Neighborhood.”

  21. Ibid.

  22. Ibid.

  23. Cawthon, “Detroit Man Beaten.”

  24. One comment on a local forum states, “So it's OK to take the law into your own hands? And the people who beat him up weren't arrested?” Another comment in response states, “Why is that even relevant? There should be No mercy. No compassion for the evil & wicked.” Schaefer, “Detroit Neighborhood.”

  25. This narrative is compiled from State v. Augustine, 125 So.3d 1203 (La. Ct. App. 2013); “DA Frustrated by Revolving Door of Local Criminal Justice System,” WWLTV, Eyewitness Morning News, January 12, 2011, http://www.wwltv.com/eyewitness-morning-news/DA-Frustrated-by-revolving-door-of-local-criminal-justice-system-113346474.html (accessed June 22, 217).

  26. “DA Frustrated.”

  27. Ibid.

  28. Cannizzaro was able to procure such a lengthy sentence because he asked the court to apply the habitual offender law, which increases penalties for individuals with prior felony convictions. In Louisiana, if the prosecutor determines a defendant should be charged under the habitual offender law and a jury finds him or her guilty, the judge's hands are tied, and he or she must impose the strictest sentence possible. Augustine appealed his lengthy sentence, but the appellate court affirmed his 120-year sentence (State v. Augustine).

  29. Kyle Graham, “Overcharging,” Ohio State Journal of Criminal Law 11 (2014): 72.

  30. Douglas A. Berman, “Overcharging,” Sentencing Law and Policy (blog), March 19, 2013, http://sentencing.typepad.com/sentencing_law_and_policy/2013/03/overcharging.html (accessed June 22, 2017) (responding to the abstract posting of Graham, “Overcharging”).

  31. For example, in the Illinois criminal code, “Chapter 720 includes narrow, specific offenses in addition to a broader prohibition against such conduct generally. For example, although one provision in current Chapter 720 covers theft generally, a number of other provisions in Chapter 720 prohibit the same underlying conduct—theft by taking (or its attempt)—in the context of specific circumstances or forms of property. The same situation exists for assault offenses and property damage offenses. Similarly, in addition to its general perjury offense, current Illinois law contains numerous offenses criminalizing false statements made under oath or affirmation about particular matters, in particular documents, and in particular proceedings.” Paul Robinson and Michael Cahill, “Final Report of the Illinois Criminal Code Rewrite and Reform Commission,” Faculty Scholarship, paper 291 (2003), p. xli, http://scholarship.law.upenn.edu/faculty_scholarship/291 (accessed June 22, 2017). Kirk Dillard, a Republican state senator from Hinsdale and a member of a later commission, acknowledged that lawmakers sometimes push for redundant measures in response to crimes within their districts: “Even though there may have been five or six other ways to charge that individual who did something at a particular legislative district with a crime, the legislator always wants to add a new one for a lot of reasons, including public-relations purposes…. We all add to the criminal code, and it turns into a hodge-podge.” Mike Ramsey, “Panel Tackles Rewrite of State's Criminal Code,” Copley News Service, December 13, 2004.

  32. Robinson and Cahill, “Final Report,” p. xix. “The sheer verbiage of current law is one indication of its failure to consolidate similar offenses…. Overall, the Proposed Code's Special Part uses only 14.9 percent—less than 1/6—of the words in the code's special Part, and only 6.7 percent—about 1/15—of the current Special Part plus other, non-criminal code statutory felonies.” Paul Robinson, Final Report of the Kentucky Penal Code Revision Project of the Criminal Justice Council (Frankfort, KY: Kentucky Criminal Justice Council, 2003), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1526674 (accessed June 22, 2017). “Nearly three decades of piecemeal modification of the Code have led to the addition of hundreds of new offenses, many of which cover the same conduct as previous offenses.” Paul H. Robinson and Michael T. Cahill: “One might expect that over time, as more loopholes or omissions in a code are eliminated, there would be a reduced need to alter or expand that code, but historical trends demonstrate that the opposite is true…. The Illinois Code underwent nearly twice as many amendments in its second twenty years of existence than in its first twenty years.” Paul H. Robinson and Michael T. Cahill, “The Accelerating Degradation of American Criminal Codes,” Hastings Law Journal 56 (2005): 635–36.

  33. The commission's report explained that “the drafters have aimed to consolidate offenses. Perhaps inevitably, four decades of piecemeal modification of the 1961 Code have led to the addition of hundreds of new offenses, many of which cover the same conduct as previous offenses or appear in various other chapters of the Illinois Compiled Statutes rather than in the criminal code.” Robinson and Cahill, “Final Report,” pp. v–vi. Joseph Birkett, the most vocal prosecutor opposing the Criminal Code Rewrite and Reform Commission's work, contended that “many of the special provisions and enhanced penalties are needed.” John Patterson, “Are We Too Tough on Crime? Politicians’ Fear of Appearing Soft Creates Avalanche of Laws,” Chicago Daily Herald, April 1, 2001. A Republican member of the Illinois House of Representatives and a member of the Criminal Law Edit, Alignment and Reform (CLEAR) commission (the prosecutor-sponsored successor to the original Criminal Code Rewrite and Reform Commission), James B. Durkin, has acknowledged that “prosecutors are hesitant to change.” “Court Reform Commentary,” Chicago Tribune, June 27, 2000, p. 12. Gino DiVito, a former Illinois appellate judge who cochaired the CLEAR commission, found that the code's illogic stems from laws passed to address a specific crime or a constituent complaint without examining how the new law fits within the overall state code: “The code reform project had barely gotten off the ground when prosecutors expressed their opposition and were unwilling to devote manpower or resources to assist in the project, even though their participation would have assured them a voice within the decision-making group.” Robinson and Cahill, “Accelerating Degradation,” p. 649.

  34. The 1,100-page bill emanating from the CLEAR commission declined to recommend narrowing the number of circumstances that can activate the charge of aggravated battery, among other things. Commission members also declined to eliminate anachronistic offenses such as adultery and fornication, though the last successful prosecution for fornication occurred in 1913, while the charge of adultery was last aired in criminal court in the early 1960s. Mike Ramsey, “I
s That CLEAR? Legal Panel Hopes So,” Copley News Service, December 29, 2006.

  35. Graham, “Overcharging,” p. 705.

  36. Ibid., p. 709.

  37. Richard A. Oppel, Jr., “Sentencing Shift Gives New Leverage to Prosecutors,” New York Times, September 25, 2011.

  38. “Sentencing judges, trying to anticipate what the parole commission will do, undoubtedly are tempted to sentence a defendant on the basis of when they believe the parole commission will release him…. In doing so, some judges deliberately impose sentences above the parole guidelines, leaving the parole commission to set the presumptive release date…. Other judges impose sentences consistent with or below the guidelines in order to retain control over the release date.” Legislative History of the Crime Control Act, S. Rep. No. 225, 98th Cong., 1st Sess. 1983, 1983 WL 25404 (Leg. Hist.), pp. 46–47.

  39. Mark H. Luttrell, “The Impact of the Sentencing Reform Act on Prison Management,” Federal Probation: A Journal of Correctional Philosophy and Practice 55 (1991): 54.

  40. It can be a crime to lie to police or refuse to answer questions before a grand jury. See, for example, Brown v. United States 359 U.S. 41 (1959) (finding contempt where a witness refused to answer before a grand jury on grounds of self-incrimination privilege despite being granted immunity); but see Harris v. United States, 382 U.S. 162 (1965) (identifying a similar scenario where criminal contempt was not appropriate); Fed. R. Crim. P. 42 (a, b) (Criminal Contempt); 18 Pa. C.S.A. § 4906 (False Reports to Law Enforcement Authorities). But shadow vigilantes can usually avoid committing such offenses simply by saying nothing to investigators in the first place and never drawing to themselves the kind of attention that might put them before a grand jury.