The real danger of the vigilante impulse 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 exceed the legal rules for use of defensive force or when officials exceed their authority in dealing with offenders, shadow vigilantes can refuse to report the crime or to help investigators, or 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.
This chapter of the book explores shadow vigilantism as it appears not in the behavior of ordinary people but rather in the conduct of officials within the system, who feel morally justified in subverting the system because they see it as so regularly and indifferently producing failures of justice. Such subversion is apparent, for example, in refusing to prosecute vigilantes, police, or crime victims who stray beyond legal limitations on the use of force against aggressors, 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.
Criminal law, law & society, self help, moral vigilantes, crime control, failures of justice, police testilying to subvert exclusionary rule, prosecutor reluctance to try some vigilantes, prosecutorial overcharging, shadow vigilantism more dangerous and destructive than classic vigilantism
The Vigilante Echo: How Failures of Justice Inspire Lawlessness
Robinson, Paul H. and Robinson, Sarah M., "Shadow Vigilante Officials Manipulate and Distort to Force Justice from an Apparently Reluctant System" (2016). Faculty Scholarship at Penn Law. 1662.
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