An Unfortunate Strategy: Civil Rights Charges in the Phoebe Prince Case

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12 Responses

  1. James Grimmelmann says:

    But if we’re thinking about the expressive value of civil rights charges, isn’t there a counter-view that these charges could help establish norms that high school is not a free-fire zone and against stigmatizing mental illness? You may be right about the overall effect, but I don’t think we can reach your conclusion just by shifting to an expressive-value frame. Indeed, to some extent, aren’t these charges being brought precisely because of their expressive value and with the goal of making a clear statement about societal solidarity with the bullied?

  2. Danielle Citron says:

    James, Thanks so much for your thoughtful comment. I struggled with writing this one and you have put a finger on why. I agree that the prosecution sends that message, and indeed the very act of looking to criminal law helps set norms. You are right–from what I gather from news accounts, it has had an impact on norms of behavior. But I worry that the civil rights charges could have a long term impact on prosecutors. If the bullies face harsh sentences and those sentences are viewed as unfair and illegitimate in light of the facts, there may be backlash against using civil rights criminal law in this way.

  3. Matt Lister says:

    Wouldn’t, say, bringing assault (and perhaps harassment) chargers against people who spit on and threw things Prince (assault) and who made numerous prank texts (harassment, maybe- I don’t know what the law on this is exactly) suffice to send the message that high-school isn’t a free-fire zone? This isn’t to say that those involved _might not_ be guilty of more serious wrongs, including civil rights violations, but just that sometimes prosecutions for more “sure things” seem like the better choice, and might even send the stronger message.

  4. Guest says:

    I’m a bit troubled by the “what will people think” argument. Presumably public opinion in the aggregate will be affected by the publicly-stated opinions of legal experts, such as yourself, so in backing away from defending the use of civil rights law in this case you are effectively saying “I disagree on the merits”, whether you intend to or not. This is particularly worrisome because you call such prominent attention to the fact that Prince was a particularly vulnerable young woman, which strikes an entirely wrong note. First, hearsay reports of self-mutilation are not the same thing as “a history of mental illness” – that is a very strong overstatement; second, what would seem to me to be likely to engender resentment in this case is a prosecutor’s failure to enforce a law because the behavior affected a particularly vulnerable member of a protected class – to make a somewhat ridiculous comparison, it would be like deciding not to enforce a cross-burning statute because one of the people inside the house was old, and died of fright. If enforcement here is wrong because the anti-Irish angle doesn’t work, then it’s wrong. But I’m very suspicious of heckler’s-veto-style arguments.

    “The FBI is the lead agency for investigating violations of federal civil rights laws…and we take that responsibility seriously. Why? Because as Director Mueller has said, “When just one of us loses just one of our rights, then the freedoms of all of us are diminished.” Find out here how we aggressively investigate and work to prevent hate crime, color of law abuses….False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees the right against unreasonable searches or seizures. A law enforcement official using authority provided under the color of law is allowed to stop individuals and, under certain circumstances, to search them and retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal confiscation of property—that a violation of a person’s civil rights may occur.

    Fabricating evidence against or falsely arresting an individual also violates the color of law statute, taking away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property, the color of law statute would be violated by unlawfully obtaining or maintaining a person’s property, which oversteps or misapplies the official’s authority.

    The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of force amounting to punishment (summary judgment). The person accused of a crime must be allowed the opportunity to have a trial and should not be subjected to punishment without having been afforded the opportunity of the legal process.”

    That’s what the FBI web site says but it is not government policy. I was detained by USMS for 5 months without a criminal charge, an arraignment, a bail hearing or a warrant requested by an authorized U.S. government attorney. I have complained about this many times and the FBI simply pretends that it didn’t happen. I think the reason I was incarcerated without criminal procedure is because, as I believe but only have some evidence, lawyers for parties that I sued (Kevin Bennett president of Steamboat Springs city council, Elizabeth Wittemyer prosecutor married to a real estate developer etc.) paid for prostitutes to service former federal judge Naughty Nottingham and USMS officers.

  6. Thanks for the comments, Guest. Law has difficulty operating expressively if it is seen as unfair. The problem is that invoking this particular criminal statute (and its requirement of resulting bodily harm) in this particular case might generate significant resentment, generating a backlash against civil rights claims more generally. The NAACP was quite deliberate in the cases that they pursued in part due to this concern. This case could serve an important expressive role if the criminal statute applied to threats and intimidating conduct causing severe emotional distress that interferes with a student’s education. But this statute requires more–proof that the bias-motivated conduct resulting in bodily harm. My sense of the facts–see Emily Bazelon’s coverage of her depression–as well as the law drive my worry about a backlash.

  7. Ken Rhodes says:

    Danielle — I would go a little farther than you have in my worry about backlash. The problem, I believe, is that many right-thinking Americans have seen too many instances of government using laws that were passed for one purpose in order to achieve objectives unrelated to that purpose.

    Al Capone rotted in jail because he failed to pay his taxes. Tough luck, Al, no backlash against that. It was the only way we could figure out how to prosecute you, and we applauded the IRS for achieving what the cops were unable.

    When our government uses the Patriot Act to pursue and prosecute gangsters under the pretense that their activities are “terrorist in nature,” most of us don’t complain too loudly, but I think we should. The purpose of the Patriot Act was not to catch criminals, it was to catch terrorists. Civil Rights legislation has a purpose too — an important one — and I think this case is not a really a civil rights case.

  8. I think the best argument that I saw against using the criminal statute in this way is that it gives tormented and bullied teenagers an incentive to commit suicide. If you believe that you can’t get relief from your oppressors by telling authorities about the bullying, but if you commit suicide with a note that your oppressors will pay for the rest of your lives, in the mind of very unhappy or depressed young person, suicide might look like a win-win situation. So, I agree with commenters that making it easier to prosecute bullying under assault/stalking law would be better.

  9. I think Ann Althouse made that argument, which I meant to include.

  10. sauerkraut says:

    Greetings –

    Was reading your post when I noticed the “spat at;” do you have documentation of this incident? Or a link to your source?


    Sauerkraut at The Litterbox.

  11. There’s an old saying: “If you want to send a message, use Western Union.” Criminal charges should be based on a good faith belief that the statute in question has been violated, not a desire to communicate something.

  12. Didacticus says:

    The civil rights statute is overly broad and vague — precisely the kind of law that should NOT be misused against children — similar to what happens in some “sexting” cases. And here, unlike in “sexting”, other statutes already cover any of the alleged offenses, so it is especially unnecessary.

    The obvious reason for the civil rights with injury charge is that it allowed the DA to charge the three youngest girls as adults (“youthful offenders” can get the same max in state prison as adults) and thus release their names. This translates into pictures of three extra teenage girl, a lot better for making a world-wide splash than just two guys and a girl. Plain truth is teen girls sell news, which is one reason why the teenage Phoebe suicide generated a lot more outrage than the pre-teen boy suicide. The DA knew this perfectly well and exploited it to the max.

    The result is three 16-year-old girls who are the target of cyber-bullying so nasty and so massive that few people have experienced anything close to it in the history of the Internet. And the result is three 16-year-old girls whose addresses are being posted on the net along with widespread encouragement of violence against them.

    In other words the result is a massive bullying and endangerment of three children who were “convicted” by a mob, not a jury.

    This is precisely why this case will not reduce bullying one iota — because the lesson for kids is that bullying and endangerment of children are perfectly fine as long as you pick the right targets and can get away with it.