Shadow Vigilantes Read online

  Published 2018 by Prometheus Books

  Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness. Copyright © 2018 by Paul H. Robinson and Sarah M. Robinson. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, digital, electronic, mechanical, photocopying, recording, or otherwise, or conveyed via the Internet or a website without prior written permission of the publisher, except in the case of brief quotations embodied in critical articles and reviews.

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  Library of Congress Cataloging-in-Publication Data

  Names: Robinson, Paul H., 1948- author. | Robinson, Sarah M., author.

  Title: Shadow vigilantes : how failures of justice inspire lawlessness / By Paul H. Robinson and Sarah M. Robinson

  Description: Amherst, New York : Prometheus Books, 2018. | Includes bibliographical references and index.

  Identifiers: LCCN 2017049226 (print) | LCCN 2017051108 (ebook) | ISBN 9781633884328 (ebook) | ISBN 9781633884311 (hardcover)

  Subjects: LCSH: Criminal justice, Administration of—United States. | Law enforcement—United States. | Crime prevention—Citizen participation—United States. | Vigilantes—United States.

  Classification: LCC KF9223 (ebook) | LCC KF9223 .R637 2018 (print) | DDC 364.1/34—dc23

  LC record available at https://lccn.loc.gov/2017049226

  Printed in the United States of America

  List of Illustrations

  Acknowledgments

  Preface

  I. THE WHO AND WHY OF VIGILANTISM

  1. Fear, Meet Indifference: Breaching the Social Contract

  2. The Moral Vigilante

  3. The Shadow Vigilantes

  4. Sparking the Shadow Vigilante Impulse

  II. THE DANGERS OF EVEN MORAL VIGILANTISM

  5. Ten Rules for the Moral Vigilante

  6. Moral Vigilantes Breaking Bad: Community Drug Wars

  7. How Being Right Can Risk Wrongs

  III. THE SUBVERSIONS AND PERVERSIONS OF SHADOW VIGILANTISM

  8. Community Complicity with Vigilantes

  9. The Community as Shadow Vigilantes

  10. Criminal Justice Officials as Shadow Vigilantes

  IV. THE VIGILANTE ECHO

  11. Blowback and the Downward Spiral

  12. The Damages and Dangers of the Community Perceiving the System as Being Indifferent to Doing Justice

  13. What It Takes to Stop the Vigilante Echo

  Conclusion

  Postscript: Where Are They Now?

  Appendix: Illustrative Cases Undermining the Criminal Justice System's Moral Credibility

  Notes

  Index

  Fig. 1.1.Deanna Cook was killed by her ex-husband, 2012.

  Fig. 1.2.John Harper's El Camino, which is towed after the killing, 1995.

  Fig. 2.1.Emmitt Till before and after his death in 1955.

  Fig. 2.2.The 1963 march in memory of church bombings organized by CORE.

  Fig. 2.3.San Francisco vigilante movement migrated from the gold fields, 1848.

  Fig. 2.4.The Pink Gang has continued to grow, 2012.

  Fig. 3.1.Bernard Goetz shot four men who tried to rob him, 1984.

  Fig. 3.2.Bill Bradford, while in prison, 2008.

  Fig. 4.1.Larry Eyler was captured and then released, 1984.

  Fig. 4.2.Vincent Chin in his early twenties.

  Fig. 4.3.Melvin Ignatow with Brenda Schaefer, 1988.

  Fig. 5.1.The turf that the Legion of Doom sought to protect, 1985.

  Fig. 5.2.Vigilantes hung the kidnappers of Brooke Hart, 1933.

  Fig. 6.1.A mural tribute to Herman Wrice, 2006.

  Fig. 6.2.Crack houses were burned in many cities.

  Fig. 6.3.Black October poster left at crime scene, 1973.

  Fig. 7.1.The Hasidic community in Crown Heights, New York.

  Fig. 7.2.Animal Liberation Front poster advocates illegal action to aid animals.

  Fig. 8.1.Ken McElroy, killed by the people in his town, 1981.

  Fig. 8.2.Venice Beach shelters such as these were destroyed by neighbors, 1994.

  Fig. 9.1.Painting of George Zimmerman.

  Fig. 11.1.Stop Snitching urban art project, 2013.

  Fig. 11.2.The body of Deshawn McCray, 2004.

  Fig. 12.1.Poster for Jodie Foster's famous revenge movie, The Brave One, 2007.

  We are very much indebted to many people for their help with this book, especially Mitchell Heyland, Brandon Kenney, and Daniel Atlas of the University of Pennsylvania Law School and Todd Costa and Taryn McKinney of the University of Pennsylvania classes of 2016 and 2017, respectively, for their exceptional research assistance; Silvana Burgese, Kelly Farraday, and Jennifer Evans of Penn Law's Faculty Support Services for their endless help in the preparation of the manuscript; Edwin Greenlee, Merle J. Slyhoff, and Joseph Parsio of the Penn Law Library for their monumental efforts to find us all manner of materials, old and new, common and rare; and Penn Law deans Michael Fitts, Wendell Pritchett, and Ted Ruger for their unstinting support for this work. We thank them all.

  For permissions to reprint photographs, we thank Deanna's Voice (DeannasVoice.org), which continues to fight to bring awareness to the problem of domestic violence; the family of Brenda Schaefer, who have been so generous in sharing pictures of their lost sister; Helen Zia, who maintains the website Remembering Vincent Chin on behalf of the estates of Vincent and Lily Chin; and Harry Maclean, author of The Story Behind In Broad Daylight, for his contribution of the Ken McElroy photograph. We would also like to provide attribution to the artists who painted the mural in memory of Herman Wrice—David McShane and Eurhi Jones.

  In the effort to bring an accessible version of these issues to press we thank our many friends who took the time to read early drafts, especially George Sevier, Nancy Bray, Catherine McAlpine, and Reinhild Muenke. To Steven L. Mitchell, editor in chief of Prometheus Books, we are indebted for his careful reading and useful comments.

  In modern societies, citizens give up most of their natural right to defend themselves or to respond to wrongdoing, in return for a promise of protection and justice from the government. But what happens when the government breaches that social contract and persistently fails in its promise? There are difficulties with citizens taking matters into their own hands, but it is hard not to empathize with people in desperate situations where law enforcement seems indifferent. And there are some persuasive moral arguments that people can make in support of some forms of constrained vigilantism.

  Vigilantes have long been vilified, often with good reason, as with the racist lynchings by the Ku
Klux Klan. But the original American “vigilantes” in 1850s San Francisco were models of democratic action who were saving their community from an ineffective and corrupt government. And there has been a long line of vigilante groups that could fairly claim their conduct to be morally justified, albeit technically illegal.

  One might hope that serious failures of justice and protection are rare and that the government takes seriously its obligation under the social contract. However, rightly or wrongly, ordinary people sometimes believe they have reason to doubt the criminal justice system's devotion to doing justice. In a wide range of rules and practices—what might be called the doctrines of disillusionment—the criminal justice system seems to many to advertise an indifference to the importance of doing justice: courts feast on technicalities, treating criminal justice as if it were a game; judicial rules suppress reliable evidence and thereby let serious offenders go free; decision makers use their discretion to avoid deserved punishment for serious offenses; and criminal law defenses shield clearly guilty and blameworthy offenders from liability.

  Ultimately, the doctrines of disillusionment tend to undermine the criminal justice system's moral credibility, and that loss in turn undermines the criminal justice system's ability to harness the powerful forces of social influence and internalized norms. In other words, there are not only strong deontological reasons to be sympathetic to moral vigilantes. There are also compelling instrumentalist crime-control reasons to pay attention to ordinary people's disillusionment with a system they see as failing to give serious offenders the punishment they deserve.

  While vigilantism is something considerably more nuanced than the evil incarnate that its Ku Klux Klan paradigm might suggest, it is not so easy to clearly mark out the importantly different categories of moral versus immoral vigilantism. An attempt to set out a code for the moral vigilante, as chapter 5 does, illustrates the complexity of the problem and the fuzzy lines that inevitably remain.

  And even if one could construct a clear and detailed code of conduct, once the red line of official criminal prohibition has been crossed, it is easy—too easy—for even the well-meaning vigilante to lose track of the boundaries of moral justification. Perhaps even more troublesome, even if the vigilante is successful in staying within the boundaries of moral justification, it is commonly the case that even moral vigilantism can be problematic for the larger society. The bottom line is that official action is always to be preferred over vigilante action.

  But it does not follow that the moral vigilante must simply suffer in silence. First, this may not be possible. Strong feelings of disillusionment may spark action no matter what the law threatens. Further, asking moral vigilantes to suffer in silence is not only a poor crime-control strategy but, more importantly, ought not to be asked. The government has obligations to its citizens under its social contract and is not free to simply choose not to perform them. The criminal justice system ought to take seriously its obligation to assure that justice is done and crime avoided so that people are never put in the position of having to consider moral vigilantism.

  But the real danger is not of hordes of citizens, frustrated by the system's doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

  Shadow vigilantes, as they might be called, can affect the operation of the system in a host of important ways. For example, when people act as classic vigilantes or when people exceed the legal rules in their use of defensive force against apparent criminals, or when law enforcement officials exceed their authority in dealing with offenders, shadow vigilante citizens can refuse to report the crime or to help investigators, or they can refuse to indict as grand jurors or refuse to convict as trial jurors. Further, frustration with doctrines of disillusionment can lead politicians to urge legal reforms that seem to avoid failures of justice, but that also overreach and produce regular injustices.

  Shadow vigilantism can also be seen in the conduct of officials within the system who feel morally justified in subverting the system because they see it as regularly and indifferently producing failures of justice. Such subversion is apparent, for example, in officials refusing to prosecute vigilantes, police, or crime victims who stray beyond legal limitations when using force against aggressors. It's also apparent in police “testilying” to subvert search and seizure technicalities (and judicial toleration of it) and in prosecutorial overcharging to compensate for past perceived justice failures.

  The danger of shadow vigilantism is not only in the systemic distortions that it provokes. These distortions, in turn, have their own effect in further undermining the system's credibility and its crime-control effectiveness. For example, lenient sentencing provokes mandatory minimums, and search and seizure technicalities provoke testilying, but the excessiveness of mandatory minimums and the lost credibility from institutionalized testilying in turn provoke “stop snitching” campaigns, which guarantee greater witness intimidation, greater criminality, and less justice.

  We would all be better off if this dirty war had never started. Systemic failures of justice, shadow vigilantes’ distorting response, and blowback from those distortions end up producing more crime and more failures of justice—ending in a downward spiral.

  The only way to effectively stop this tragic cycle is for the criminal justice system to publicly commit itself to the importance of doing justice and avoiding injustice at all costs. That means avoiding the application of the doctrines of disillusionment where there is no compelling societal interest in doing so, or where the interest could be as effectively promoted through a less justice-frustrating means.

  The only way to prevent the downward spiral of lost credibility is to acknowledge the importance of doing justice both as an essential ideal and as a practical necessity.

  How should we think of vigilantes? Are they vicious and arrogant attackers of the democratically shaped social order, to be despised by all who value the rule of law, justice, and stability? Some vigilantes clearly see themselves quite differently, as the true defenders of democracy, justice, and the social order. Which of these conflicting views represents the truth about vigilantes?

  As it turns out, both views are flawed because vigilantes come in a wide range of flavors, some acting in the most despicable of ways and some in the most admirable of ways. Yet even vigilantes with the best of motivations, even when performing conduct that is entirely moral from their perspective, can cause harm to a society. We would be better off if such moral vigilantes never felt compelled to act.

  What a more careful examination of vigilantism reveals is that a society that does not take seriously enough the importance of doing justice (and avoiding injustice)—giving the offenders the punishment they deserve, no more, no less—can condemn itself to a downward spiral of resistance and subversion from which it will have difficulty recovering.

  People may have a natural right to defend themselves against wrongdoing and to respond to wrongdoing against them, but in modern societies we give up those rights in a general social contract under which the government takes a near monopoly on providing protection and doing justice.

  Obviously the government can't be perfect in its duty. There will always be crime, and not every offender can be caught and punished. We can only expect that the government will appreciate the importance of these ends and devote itself seriously to them.

  But what if the government doesn't? What if it binds us to our obligations under the social contract to defer to it but then simply fails to take seriously its own obligations? What is a person to do?

  THE STALKING OF DEANNA COOK

  Deanna Cook lives in Balch Springs, Texas, with her husband, Delvecchio Patrick, who has become increasingly violent during their marriage. In January 2009
Patrick kicks open the bedroom door, shoves Cook against the wall, and chokes her to unconsciousness. When she revives and calls 911, Patrick threatens her with a knife, screaming that he is going to “do it.” He is arrested by the Balch Springs police but released a month later.1

  Cook moves out and files for divorce. Upon his release from prison, Patrick begins calling her hundreds of times, threatening to kill her, and he repeats the threats in personal confrontations, sometimes in front of her two daughters. He also threatens the girls and arranges to have some of his friends sexually harass and assault them. In August he chokes her and calls her mother, threatening to kill her; he is arrested and required to wear an electronic monitoring device. But this changes little. In November Patrick confronts Cook in an East Oak Cliff store, screaming at her and repeatedly punching her in the face; he is arrested again.

  Fig. 1.1. Deanna Cook was killed by her ex-husband, Delvecchio Patrick, in Dallas, 2012. (Courtesy of DeannasVoice.org)

  From March 2010 to April 2011, Cook experiences a welcome period of safety while Patrick is in jail. Her divorce becomes final in May, but upon his release from jail, Patrick again begins threatening, harassing, and stalking Cook. In May alone, records show he calls her 107 times and tells her repeatedly that he is going to kill her.2 She is often afraid to leave for work because Patrick has threatened to break into her house.

  Throughout this period, Cook makes regular calls to 911 complaining of Patrick's threats, his stalking, his violation of the terms of his release, and his physical confrontations. The police do nothing. Cook begs the 911 operators for help. One tells her to keep track of her calls to the police.3 On another occasion, Cook tells a different operator that Patrick is outside, watching her house, and that “he's already tried to kill me three times. I'm really just fed up with this. I can't keep moving and changing my life because of this [expletive].”4 During this call, she explains that a previous operator had advised her not to open her door. On another 911 call she is heard pleading, “I don't want him to know I even called [911]. You know what I'm saying? That's the thing. That triggers him when he knows I called. He tears the stuff up in my house.”5 In yet another call her despair is clear: “I've been going through this for five years with him. It's still the same thing. I have complaints. If you look up my name, you'll see there are a hundred thousand complaints, but ain't nobody doing nothing.”6 Among the catalogue of 911 calls, there is one in which she describes Patrick's addiction to PCP. Cook is tired of begging for help, and she figures the operators are equally tired of hearing her frantic voice. In yet another call she explains that she has called 911 so many times that “they're probably tired of me calling” but adds, “They just need to get him away from there. I don't know what else to do.”7