Tuesday, December 10, 2013
Paul H. Robinson (University of Pennsylvania Law School) has posted The Moral Vigilante and Her Cousins in the Shadows on SSRN. Here is the abstract:
By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law rules and procedures that regularly and intentionally produce gross failures of justice.
These doctrines of disillusionment may provoke vigilante acts, but not in numbers that make it a serious practical problem. More damaging is their tendency to provoke what might be called "shadow vigilantism," in which ordinary people manipulate and subvert the criminal justice system to compel it to impose the justice that they see it as reluctant to impose. Unfortunately, shadow vigilantism can be widespread and impossible to effectively prosecute, leaving the system's justness seriously distorted. This, in turn, can provoke a damaging anti-system response, as in the Stop Snitching movement, that further degrades the system's reputation for doing justice, producing a downward spiral of lost credibility and deference. We would all be better off – citizens and offenders alike – if this dirty war had never started.
What is needed is a re-examination of all of the doctrines of disillusionment, with an eye toward reformulating them to promote the interests they protect in ways that avoid gross failures of justice.