Why Our Flawed Justice System Breeds ‘Shadow’ Vigilantes

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What do Three Strikes laws, mandatory-minimums for drug offenders, the Stop Snitching campaign, and private police have in common? According to Paul H. Robinson, a law professor at the University of Pennsylvania Law School, they are all expressions of a “shadow” vigilantism that has spread in the contemporary U.S.—usually in response to perceived failures in the justice system.

shadow vigilantesThe forthcoming Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness, which Robinson co-authored with Sarah, M. Robinson, a former sergeant in the US Army and social worker, explores how the impulse to take the law into their own hands has been a feature of Americans’ behavior since the Revolution.

In a conversation with TCR’s Julia Pagnamenta, Robinson explains why the history of vigilantism is more nuanced than the traditional view which defines vigilantes as groups like the KKK and white supremacists, and why vigilantism will continue to operate when disenfranchised individuals in society feel that the system is ignoring their concerns.

The Crime Report: Your book suggests that acts of vigilantism are very much tied to early American history. Can you explain?

Paul H. Robinson: Vigilantism certainly has, and for many good reasons, a very bad reputation. People tend to associate it with some horrendous Klu Klux Klan lynching. But of course it’s also true that it has somewhat more admirable roots in other places as well. The original American Revolution was really an act of vigilantism where the colonists thought they were being treated badly. England had not kept its end of the social contract, so they took the law into their own hands in the very dramatic way of declaring independence.

Another example is the story of the gold miners in San Francisco. This was a city overwhelmed by an influx of people either headed towards the gold hills in California or providing services in San Francisco to people headed to the gold hills, and with the swell of population came a government that for the most part was corrupt. The San Francisco vigilance committee formed itself from a large group of citizens who in very public ways went after criminals and held public trials completely independent of the official authorities. When they really did bring order back to the city, and once the government actually matured enough so that it wasn’t just a bunch of corrupt scoundrels, the vigilance committee disbanded itself.

TCR: You also mention a line in the U.S. Constitution that refers to the recourse that the American people can take when the government breaches its promise to protect its citizens. 

Robinson: Given what the creation story was for the United States, it is no surprise to find some language in the Constitution that specifically seems to support and recognize the legitimacy of some forms of vigilantism. This is a larger theme of the book: to say there really is such a thing in some circumstances as moral vigilantism. There are a lot of stories about the gay community in San Francisco being openly beaten where police ignore the anti-gay crimes. The same occurred in the South with the civil rights workers: blacks who were being victimized because of their civil rights leadership.

We have some modern-day stories about women in India who organized a vigilante group acting against men who publicly assaulted and groped women, and the police did little or nothing about it, and quite a few other stories where it’s hard not to read the story, see the extent of the victimization, see the extent of the violation of social contract by inherently indifferent police and authorities, and not be sympathetic to these groups that then openly become vigilantes.

TCR: Although the history of vigilantism in this country is more nuanced than the Klu Klux Klan, the history of white supremacist groups terrorizing and killing African-Americans is very much a part of American history… and one that is still playing out today.

Robinson: Those groups can’t claim to be vigilantes: nobody is victimizing them. Their expression of violence is just a product of their own racial bias. In that sort of situation you might well have some claim to moral vigilantism on part of the black community if the police weren’t taking seriously enough their victimization. Luckily, we are doing a little better than we were back in the Civil Rights era and the South, where a lot of civil rights groups did have to form their own vigilante groups to protect themselves.

The criminal justice system does take seriously that kind of victimization and is making prosecutions and providing protection so that we can avoid the need for black victims to form their own vigilante groups. Obviously, it’s an imperfect process at the moment, but certainly authorities are doing a better job now than they did before.

TCR: Victimhood is crucial to understanding vigilantism. How do these two terms interconnect, or rather, how does one affect the other? 

 Robinson: Well certainly the victims themselves can feel the sting and frustration of the failures of justice in ways that other people can’t, and they may have the greatest motivation to become vigilantes. Whether it’s classic vigilantes or shadow vigilantes.

Human beings are built in a way that they care deeply about doing justice and avoiding injustice, and when they see that in the world around them, they are going to want to hold somebody accountable. If the criminal justice system is doing the best it can, they are willing to cut it a break and say, you know, it’s certainly trying. It’s very difficult to accurately reconstruct past events. We can’t expect it to be perfect. But when they see a criminal justice system that seems to be willfully frustrating justice, we know exactly what happened, we have compelling evidence of what happened, and we are still going to let this person walk away with no punishment, although they are clearly a rapist, or a murderer. What does that say?

TCR: Indeed, a theme in the book is the recurring ineffectiveness of government authorities in carrying out justice, especially for African-American communities.

Robinson: Right, that’s a classic invitation to moral vigilantism when it’s clear that the system isn’t going to do anything about it, and in fact is going to be complicit in the victimization itself.

TCR: You open the book with a harrowing example of a domestic abuse case. Maybe the criminal justice system shouldn’t handle cases of domestic abuse?

Robinson: I am not entirely sure I agree with that. To the extent that there are other institutions outside the criminal justice system that can attempt to reduce crime, reduce domestic violence or sexual violence, that’s wonderful, absolutely, let’s do that, but at the end of the day there is a social contract, and the criminal justice system has to step-up and provide that sort of protection. I think domestic violence is an example of how for decades the criminal justice system miserably failed. I mean there are some classic cases. The Torrington Police [in Connecticut] watched a woman [Tracey Thurman] get beat by her husband in front of them and it’s the umpteenth time that he’s done this, and they just stand around and watch.

Well, are we surprised that she, and most of the people she’s talked to, are just horribly offended with the police and the criminal justice system? Are we surprised that they don’t have the slightest confidence in the fairness and justice and effectiveness of that system? Are surprised that they would be happy to distort the system as needed from their point of view if that’s what was necessary to get the system to take this domestic violence more seriously? No, I think that’s human nature. I think that shadow vigilantism is a natural response to any time the criminal justice system systematically, apparently willingly, fails to do justice.

TCR: Right. You provide examples in the book where private citizens did take matters into their own hands and government agencies tacitly condoned their actions. 

Robinson: Yes, I mean the first half of the book is really about this struggle to recognize the legitimacy of vigilantism in these special cases, and at the same time to recognize that it’s very easy for vigilantism to slip past the boundaries of moral justification.

Once you’ve passed that signpost of what’s lawful and what’s criminal, and once you’ve justified moving into doing what’s criminal because you believe that you were morally justified as a vigilante to act or protect yourself, it’s very hard to know exactly where to stop. It’s very easy for a group to say, well, that didn’t work. Let’s do a little more. In fact, one of the chapters in the book is about reactions of communities to apparent police indifference to the increased use of drugs as essentially destroying their community, and some groups will certainly push back when the police don’t respond and seem indifferent to the damage that is being done to the community. They may step a little over the vigilante line by confronting drug dealers or crack houses.

I think one of the larger lessons from that is just to illustrate how easy it is once you’ve crossed that line to justify doing just a little more, and therefore always worrying whether you’ve passed the point about what is morally justifiable.

TCR: Do you see a correlation between this sort of vigilantism, of taking justice in your own hands, and the U.S. relationship with guns?

Paul H. Robinson

Paul H. Robinson

Robinson: I don’t see that connection. There are a lot of groups who have no particular interest in the Second Amendment, but who can say with some legitimate claim that the government has breached its social contract with them, and whether they care about the Second Amendment or not they are put in a difficult, if not impossible situation.

There’s a separate issue in moral vigilantism that is worth mentioning: even if a group is morally justified under their own terms, it’s simply from a larger societal point of view, a bad way to solve the problem of that group that is being victimized.

So, for example, one of the stories in the book is about a neighborhood that has a serious crime problem. They get together and create a neighborhood watch group that is fairly aggressive and they are actually extremely successful at reducing crime in their neighborhood, which you might see as a huge success story. This neighborhood watch group qualifies as vigilantes because they go a little outside the law sometimes, they are stepping in and doing what they think the police should be doing, but when you step back and look at the larger situation what you find is that [while] it’s now a better world for them because their crime rate is down so much, what in fact has happened is a lot of that crime has simply been pushed off into neighboring communities that don’t have as an effective neighborhood watch.

One of the problems of individual group vigilante action is that it’s not done at a larger stage, or national, or even city level, so it has that potential of simply solving the problem for one group at the expense of neighboring groups, and while it’s hard to deny that this is moral vigilante action, from a larger societal point of view it’s not a good solution.

Better that the government do that, extend more resources if need be, undertake the policy that we are better at reducing crime and apply that policy to all communities in the area. So it’s not a matter of just pushing the crime next door, but rather preventing it. That’s just an example of how, even if on its own terms moral vigilantism seems morally justifiable, it doesn’t necessarily mean it’s good for society.

TCR: You write about the 1993 kidnapping and murder of twelve-year-old Polly Klaas in Petaluma, California. Was the response to Klaas’ murder an example of a moral panic, in which a horrifying act became politicized and had devastating repercussions for people who found themselves swept up in this new tough-on- crime initiative? 

Robinson: Let me go back and introduce this notion of the shadow vigilante. The moral vigilantes we’ve been talking about so far are classic vigilantes in the sense that they are themselves going out into the street and using force, and otherwise breaking laws, and sort of substituting for the police. They are doing what they think the police and the criminal justice system should be doing. But in some ways, that takes an unusual individual. Most of us just aren’t programmed to go out and become criminals ourselves.

However, the same frustrations that generate classic vigilantism also generate shadow vigilantism. They don’t go out into the streets, but what they do is less obvious, and in ways that don’t endanger them personally nearly as much. They nonetheless act in a way that undermines the criminal justice process: they try to subvert the process to push it to do what they think it should be doing. They manipulate the criminal justice process, and this I would argue happens a lot because it’s easy for people to do, there is nothing on the line.

Ordinary people have a role in the criminal justice process. Are they going to decide to report a crime that they see? Are they going to help investigators? Are they going to as jurors follow their jury instructions, or are they going to ignore the law and do what they want? Or in a grand jury, are they going to follow their legal instructions?

Or are they going to, for example, support policies like (California’s) Three Strikes law that seem like obvious overreach? A lot of its political support comes from people who are frustrated because they don’t see the current system as effectively dealing with the kind of offenses that now have mandatory minimums, and the kinds of offenders that fall under Three Strikes.

The problem with shadow vigilantes is that they are much more dangerous because they are much more common, and because there is not much you can do about them. And it all happens in the shadows, so you don’t even know it’s going on, and it’s not just ordinary citizens. Shadow vigilantism is something that is inspired by participants in the process as well, whether you are talking about police or prosecutors, or sometimes with the acquiescence of judges.

TCR: How does law enforcement contribute to shadow vigilantism? What are the implications on the criminal justice system as a whole?

Robinson: To give an example, police “testilying” is a phrase invented by New York police officers, invented because they wanted to distinguish regular lying under oath, which they considered entirely inappropriate, to lying with regard to, for example, what they considered the technicalities of the very obscure search and seizure rules.

This is just an example of a shadow vigilante who is frustrated by the systems, sort of an intentional failure of justice. This is how they respond. It’s not going out into the streets, and getting in fights, rather it is manipulating and distorting the system so that system will be more likely to impose the deserved justice that they think should be imposed.

TCR: Search and seizure rules are a point of contention between crime control and civil liberties advocates. What is your perpective?

Robinson: I would say, first, you can’t have a civilized, liberal democracy without having some form of Fourth Amendment that limits police intrusion in our personal lives. I mean that’s absolutely essential, and you need a way to enforce those rights. You can’t just have the Fourth Amendment on the books and then do nothing about it, so police are sort of free to intrude wherever they want, and though it’s a violation of the rules of the books, they can get away with it because there is no enforcement. There has to be some kind of enforcement mechanism. However, when we adopt the exclusionary rule as our enforcement mechanism [this] is a rule that on its face is designed to frustrate justice.

At the very least I would say this: every time we adopt a rule that we know is going to frustrate punishing people to the extent that they deserve it, no more, no less, every time we adopt a just as frustrating rule, we ought to understand that there is a hidden cost. That every time we do that the moral credibility of the system is undermined and people are going to be less likely to defer to it, to give it some kind of moral authority. Every time we approve these frustrating doctrines we are much more likely to inspire shadow vigilantes to feel morally justified in distorting the law to their own purposes.

I think it’s no coincidence that the Three Strikes doctrine, these mandatory minimums, are a problem that we currently have after a decade or more of the system’s reputation for letting people off on technicalities or tolerating really inconsistent sentencing where if you get the right judge you can walk away without no punishment at all. Once the system’s credibility for giving just punishment is undermined, well surprise, surprise, we know have these distortions in the other direction.

Part of the problem with shadow vigilantism is that it promotes a really damaging response. Once you have a system where everybody knows that there is this police “testilying,” everybody knows there are these mandatory sentences, and that these Three Strikes mechanisms are generating sentences that are well beyond what the community thinks is really just, once you have that kind of distorted system, are you surprised that there is then a backlash?

TCR: The Stop Snitching campaign arose from a mistrust of the police in some communities. Is that another example of the backlash you describe?

Robinson: The Stop Snitching campaign is a tragic development, because, of course, all it’s going to do is to reduce the effectiveness of crime control and make things worse, and increase victimization. It’s outrageous how the black victimization rates are dramatically higher. That’s a walking tragedy, but you can understand where Stop Snitching came from. You have a system that has a built-in police “testilying,” plus exaggerated punishment routinely under Three Strikes and mandatory minimums. Are we surprised then that there are some neighborhoods where the system is the enemy? No. The distortions that shadow vigilantism creates inspire its own backlash through Stop Snitching, and a lot of other ways that people think that they then have a reason to undermine the system further and it’s a downward spiral.

TCR: There is a lot of emphasis in the book on the failures of the criminal justice system being tied to offenders not receiving just punishment for crimes they committed, but the opposite argument can be made, that the U.S. criminal justice systems is one of the most punitive in the world. Can this in itself not be considered a failure of justice?

Robinson: Frankly, yes, I think that’s right. (Our system) tends to have exaggerated punishment at the high end, but in part I think that is a product of this shadow vigilantism distortion process that I talk about in the book. Having all those exaggerated penalties is a product in part of the frustration of the system not imposing punishment that was deserved. You know, we could have skipped that whole couple of decades where individual judges were free to just let murderers walk; well we could have saved ourselves a lot of the headaches that we have know with these crazy mandatory minimums.

TCR: What decades are you referring to?

Paul H. Robinson: Well, this is back in the 60s and 70s, before the advent of sentencing guidelines, there was an enormous amount of judicial discretion allowed. We thought it was quite justified. The problem of course was that a lot judges were quite idiosyncratic in both directions unfortunately, but the fact is that when ordinary people see that kind of disparity in sentencing, [they] are offended on both ends, and not just offended when somebody gets a lot more punishment than they deserve, they are also offended by people getting a lot less punishment than they deserve, and they are likely to react to what they see as the dysfunction in the process. One of the ways to react to people getting a lot less punishment than they deserve is to put in a set of mandatory minimums, which I think is tragic.

TCR: Do you think that the recourse to privatizing sectors of the criminal justice system leads to increased vigilantism? 

Robinson: There are many more private police than public police. We really have privatized policing in many areas. Certainly the motivation for hiring private police is that you don’t trust the public police, but there are unfortunate consequences that come from that, and one of the unfortunate consequences, of course, is that you can get effective policing only if you can financially afford it. If you can live in one of those communities that can afford private policing, well great, if you don’t, well then you’re screwed.

This is in part what contributes to the dramatic over-victimization of black communities. Most black neighborhoods are dependent on public policing. In a perfect world, we would have a public police department that was effective enough; in a criminal justice system with policing rules and exclusionary rules that cared enough about justice so that public police could be effective enough that everybody would find the services they offer to be acceptable. We’d have no further need for private policing and everybody was assured of that same minimum level of protection.

Julia Pagnamenta is a news intern with TCR. Readers’ comments are welcome.

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