Looting and the Limits of Criminal Justice

When it comes to prosecuting individual rioters, it's nearly impossible to collect the necessary evidence london police- suzanne plunkett-reuters-body.jpg

Two police officers stand outside Westminster Magistrates Court in London. Suzanne Plunkett/Reuters.

A mad conspiracy theorist might be forgiven for imagining that undercover agents of the state instigated the U.K. riots, creating anarchy in the interests of creating demand for an authoritarian response. Indeed, considering the stiff, swift prison sentences being imposed without trial on very petty offenders, you don't have to be a paranoid wingnut to regard the riots as a crisis -- an opportunity to popularize repression -- that anti-libertarians could be trusted not to waste.

I'm not suggesting that looters and other thugs shouldn't be arrested summarily, but their prosecutions require a bit more finesse. You can't prosecute a mob; you can only prosecute individuals suspected of participating in it, even though they surrendered their individualism to the singularity of the crowd. To prosecute individuals fairly, you need individual evidence of guilt and a nuanced approach to their degrees of culpability. For what it's worth, I'm speaking from experience.

In 1977, when New York City suffered a five-borough blackout, entire neighborhoods were ravaged by looting, especially in Brooklyn, where I was a fledgling Legal Aid lawyer. The blackout began on an horribly hot, humid, stressed out summer night, during a heat wave, with the City still in financial crisis, (two years after a Daily News headline writer famously declared "Ford to New York: Drop Dead,") and during David Berkowitz's, (the Son of Sam's,) killing spree, which roughly coincided with Rupert Murdoch's acquisition of the New York Post, which made the most of his serial murders. The looting was predictable: I remember walking out of a restaurant into a fearful, pitch-black street, thinking all hell was about to break loose.

The police arrested people en masse, appropriately; they had no choice but to try to sweep the streets. But they also had no place to house thousands of arrestees and no evidence against many of them, who should have been released the next day. What is legally necessary or appropriate, however, is often politically impossible, so men with no criminal records whose cases would eventually be dismissed for lack of evidence were held for days in sweltering cages in the basement of the criminal court building, awaiting arraignment and release, on bail or their own recognizance. One of my clients kissed the filthy, fetid Brooklyn street when, after two or three days, he was finally freed. My recollections of the days and nights spent processing people are a bit vague, but I will never forget walking down into the hot and airless pens and seeing shirtless men practically piled on top of each other, arms reaching out of the bars, voices yelling "Lega Aid, Lega Aid, Got my file?"

Again, I don't want to minimize the material and cultural damage occasioned by looting or evoke sympathy for people who indulge in it. I do want to point out that a fair criminal justice system has limited power to rain retribution on all of them, because of evidentiary problems (which facial recognition technology not available in 1977 can only partly solve today) and because justice requires recognizing degrees of guilt, which harsh sentences for very petty offenders tend to ignore: A young woman who receives a five-month prison sentence for receiving a pair of looted shorts from a friend is being held to a standard of probity that, I'd be willing to bet, most generally law abiding Britons couldn't meet.

The British are engaged in the usual debate about whether looting reflects an amoral sense of entitlement generated by an over-extensive welfare system or whether it is driven, in part, by misdirected political angst and anger over inequality. Both sides may be partly right; but both sides ignore a third, partial explanation: looting is an opportunistic crime that people of varying social and economic classes with varying political views are prone to commit. Some of my clients back in 1977 were working people with no prior criminal records who passed by looted stores and helped themselves to milk or diapers, radios or TVs. They had more in common with educated, affluent people I know who would grab what they could out of a broken Saks Fifth Avenue window if (no one was looking) than with the looters who threw the first rocks, drove cars into storefronts or set them on fire.

To suggest that looting, like other forms of mob violence, is, partly a function of human nature is not to decry efforts to deter or punish it. "Everybody does it" is no defense to illegal or unethical behavior; but it is perhaps a reproach to excessive prosecutorial zeal, a reminder of the virtues of not throwing stones.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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