TCR: Search and seizure rules are a point of contention between crime control and civil liberties advocates. What is your perpective? 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. Part of the problem with shadow vigilantism is that it promotes a really damaging response. Is that another example of the backlash you describe? Are we surprised then that there are some neighborhoods where the system is the enemy?
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. Can this in itself not be considered a failure of justice? 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.
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. 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. Excellent article.
It gives clarity to what I am observing in my community. I feel that not only is the neighborhood watch program targetting,but they are possibly involved with the drug dealers. Through multiple family dwellings within the neighborhood. There is an active patriot cell I also believe working within this framework. I was convicted of a misdemeanor 8 years ago, but I am being watched daily by my neighbors.
It is very obvious that there is collaboration between these neighbors because off the recurrence off the same vehicles at different times of the day. With city officials and police residing in the neighborhood there is no activity with the drug dealers. 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.
Criminal law, moral credibility, crime control, justification defenses, failures of justice, unchecked punishment discretion, exclusionary rule, double jeopardy, entrapment, shadow vigilante, neighborhood watch, police perjury, overcharging, disproportionate penalties, mandatory minimum sentencing. On the second leg the same is not the case. The police are notoriously understaffed, ill-equipped, inadequately trained, inappropriately promoted and generally under-resourced — National Commissioner Bheki Cele now under suspension says quantity, not quality is the order of the day for SAPS; the Courts, staffed by relatively ever fewer judges, are inundated and inadequately resourced, while correctional facilities are corrupt, over-crowded hell-holes in which criminality is promoted rather than corrected.
Rehabilitation of offenders is the exception, not the rule. In the absence of adequate state protection lynch mobs, self-appointed vigilante committees and groups and kangaroo courts gain in popularity to the great prejudice of the institutions of state.
Law enforcement agencies will do well to note that inaction and apathy on their part lead to this kind of behaviour. It is the unenviable task of Government to nurture respect for the rule of law in all inhabitants of the land.
This is best done by creating a standard of law enforcement under which people do not feel the need to resort to self-help and vigilantism. The Ministry of Justice is embarking on the first steps towards a massive new investment of human and material resources in the criminal justice system. It needs the support of the public, the legal professions and civil society organizations in this endeavour.
Any failure to bring to bear the necessary will and skill could well result in the anarchy and chaos which flow from unchecked vigilante action. Looking northwards, examples abound. The world over, secure and satisfied citizens do not need to resort to vigilante action.
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