Tuesday, February 17, 2009

Hue and Cry

As Wikipedia explains, at English common law the hue and cry “was a process by which bystanders were summoned to assist in the apprehension of a criminal who had been witnessed in the act of committing a crime.”

The hue and cry was part of the system England used to enforce criminal law centuries ago, before professional police appeared (which began in the nineteenth century).

Once professional police became common in England and other countries (including the U.S.), people pretty much assumed they had no responsibility for helping enforce criminal law.

This post is about a recent instance . . . what was, in effect, a twenty-first century version of the old hue and cry.

Maybe you’ve seen some of the stories: a real (ahem) jerk kid in Oklahoma, assisted by his brother, beat and otherwise horribly abused a cat (Dusty), apparently their own pet. The jerk and his brother made a video of the abuse and posted in on YouTube, where it was seen by 30,000 people before it was removed. It seems some of those people were cat lovers who weren’t content just to look at the video.

Instead, they set out to find the jerk and his brother. From everything I’ve read, it was 4chan’s /b/ who tracked them down and posted names, address, parents’ names, phone numbers and, I think, other information online. They and/or other people also contacted the Sheriff’s office in Lawton, Oklahoma, where these jerks live.

The Sheriff has been (is being?) flooded with calls about the case, most of which I gather are demanding that the perpetrators be prosecuted. The Sheriff has been quoted as saying that the cat is alive and at a veterinarian’s and that his office is conducting an investigation and it will be up to the local prosecutor to decide if the guys should be charged. A story posted late last night said the jerks will meet with the local district attorney today, and may face charges of animal cruelty. (Personally, I hope they are, but that’s an aside having nothing to do with my real point.)

What I find professionally interesting about the popular reaction to what the jerks did is that it’s a twenty-first century hue and cry. Like the historical hue and cry, the pursuit and identification of the perpetrators was not something that was set in motion and overseen by professional law enforcement officers. It was, instead, the members of a community (a really big community in this instance) reacting to a crime they saw being committed.

This case differs from the traditional hue and cry in several ways. For one thing, the people who became involved in the hue and cry for the abuse of Dusty the cat did not actually see the abuse (the crime) taking place in real-time. Instead, they saw the video the jerks made of the crime; what they saw was not the crime as it was being committed but a recording of a crime that had already happened at some point in the past. I don’t see that this makes any difference; if you see a crime being committed in real-time or on a video and know the perpetrators are almost certainly still out there walking around, it seems to me that either should be sufficient to trigger public pursuit of the perpetrator(s).

Another difference lies in the composition of those involved in this modern hue and cry. I have no idea how many people were actually responsible for tracking these guys down, but I suspect it was a pretty small group. It seems, though, that a LOT of people were talking about the case online and calling for something to be done to find the abusers (and maybe save the cat). I think it’s reasonable to include those people in the hue and cry in this case; as I understand it, in the traditional hue and cry a lot of people might be involved in looking for the perpetrator, who might actually be caught by only a few. The point was to mobilize the entire community in the search for one who had committed a crime, and it seems to me we came pretty close to having that happen in this case.

That brings me back to the difference between the composition of the community involved in this hue and cry and the community that would be involved in a traditional English hue and cry. The community involved in the traditional English hue and cry would be the local people – the people in that village or other local geographical area. They were, after all, looking for a perpetrator who’d either be on foot or traveling by horse, which meant he couldn’t move that fast. Here, I’m getting the impression that the people involved in the Dusty the cat hue and cry were literally from all over the globe; I do not mean, of course, that the entire populace of the globe was involved. What I mean is that people from countries outside the U.S., as well as people from within the U.S., were involved in looking for the perpetrator and in calling for his apprehension. (I think even posting messages online calling for the jerks to be identified and caught would be part of the modern hue and cry because it encourages people – people who have the technical skills needed to do so – to do just that.)

I think this whole episode is pretty cool, and not just because I’m an animal lover who would like to see these jerks face some consequences for what they did. I think it’s interesting because of the underlying dynamic.

I’ve written a lot of law review articles and a book, in all of which I argue that we need to rethink how we handle law enforcement when it comes to online crimes. I know this one wasn’t an online crime: The crime was committed when the jerks abused the cat; the online component essentially consisted of their bragging about the crime they had already committed.

I think that still works for the point I’m making though; if you find out about a crime online and know that the perpetrators have not been identified and are still on the loose, it seems to me you have the basis for launching an online hue and cry, as was done in this case. It seems to me you would also have the basis for launching such an effort if you observed a crime while it was being committed online or discovered that a crime had been committed online after the fact, i.e., after the commission of the crime was completed.

Getting back to my point, in my articles and book I argue that the traditional, hierarchically-organized law enforcement model is not the optimum approach for dealing with networked crimes. As I explain, hierarchical organization is a good way to organize physical resources and personnel to handle tasks (law enforcement, war, building things, etc.) in the real, physical world. I argue that the virtual world is different in several respects, the combined effect of which is to make the hierarchical law enforcement model a less than optimum approach in many – if not most – instances. I’m not arguing for eliminating the traditional law enforcement model; we need it for the real world, at least for the foreseeable future, and it can still work in certain instances for online crimes.

What I argue in these articles – and here’s a link to one of them if you’re interested in reading more – is that we need to develop and implement fluid, lateral approaches that let us take advantage of the strengths of the virtual world. I think that’s what happened in the Dusty the cat case. It was a purely spontaneous movement – a modern hue and cry – that resulted in the identification and apprehension of the perpetrators in an amazingly short period of time. A crime was committed – one outraged at least a good portion of the online community – and the community reacted to see that it was addressed.

Had the 4chan people (and others, maybe) not done what they did, this incident might well have gone unaddressed. It might never have come to the attention of local police; if it had, they might well not have done much about it. The combined effect of the efforts of the people who identified these jerk kids plus what seems to be ongoing calls for the local law enforcement people to do something about this just might result in the jerks facing some kind of sanction.

That would be appropriate. As I tell my students, criminal law has several purposes: One is deterrence; when we find people who’ve committed crimes, we punish them to deter them from repeating their crimes and to deter others from committing the same crime for fear that they’ll get the same punishment. The other function of criminal law is denunciation: By sanctioning someone – like these jerks – we send the message that society doesn’t like and won’t tolerate this kind of activity.

I’m going to quit before I really get on soapbox. Before I do, though, I want to note one error I’ve seen in some of the stories that have appeared about this case.

Some of the stories refer to what the 4chan people (and others?) did as vigilantism. In other words, they’re calling these guys vigilantes. They are not. As I’ve explained before, a vigilante is someone who takes the law into his/her own hands. That doesn’t mean they just track down someone who committed a crime; to be a vigilante, you don’t just act as an investigator – as a law enforcement officer. You act as judge, jury and executioner. The people who tracked down the jerk kids in this case did not do that; they made sure the information that identified the kids got to law enforcement, and that is not vigilantism. It’s pretty much the hue and cry . . . which, as I said, I think is cool.

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