The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. Alice Goffman's "On the Run: Fugitive Life in an American City" has drawn a great deal of attention, mostly very positive (though some critical). But recently Prof. Steven Lubet has called attention to a particular passage from Prof. Goffman's book that, on its own terms, sounds troubling.
First, a bit of background: Prof. Goffman, while a college and graduate student, moved to a poor predominantly black neighborhood in Philadelphia to study, analyze, and chronicle how people lived there and how they interacted with the police and the legal system. She got to know various residents, including many gang members, and became friends with them.i And following the murder of one of those friends, "Chuck" (all the names below are, I believe, pseudonyms), she was understandably distraught and angry, and apparently got involved in the gang members' reaction to the shooting.
As Prof. Lubet puts it, "Taking Goffman's narrative at face value, one would have to conclude that her actions—driving around with an armed man, looking for somebody to kill—constituted conspiracy to commit murder under Pennsylvania law. In the language of the applicable statute, she agreed to aid another person 'in the planning or commission' of a crime—in this case, murder. As with other 'inchoate' crimes, the offense of conspiracy is completed simply by the agreement itself and the subsequent commission of a single 'overt act' in furtherance of the crime, such as voluntarily driving the getaway car." (Pennsylvania conspiracy law also requires that the person have the "intent of promoting or facilitating" the underlying crime, but that too seems to be present if the narrative is taken at face value.) Here is that narrative, from Prof. Goffman's book:
After most of the extra cops had left the neighborhood, the hunt was on to find the man who had killed Chuck. Since Tim had seen the shooter from only a few feet away, many knew the man's name and the guys he hung out with. But the man had gone deep underground—nobody could figure out where he was hiding. As Reggie berated his boys each day from jail—what they weren't doing, how slow they were to avenge his brothers murder, what he would do if he were home—the 6th Street Boys acquired more and more guns, gearing up for what they assumed would be coming: part three of the 4th Street War.
Many nights, Mike and Steve drove around looking for the shooter, the guys who were part of his crew, or women connected to them who might be able to provide a good lead. On a few of these nights, Mike had nobody to ride along with him, so I volunteered. We started out around 3:00 a.m., with Mike in the passenger seat, his hand on his Glock as he directed me around the area. We peered into dark houses and looked at license plates and car models as Mike spoke on the phone with others who had information about the 4th Street Boys' whereabouts.
One night Mike thought he saw a 4th Street guy walk into a Chinese restaurant. He tucked his gun in his jeans, got out of the car, and hid in the adjacent alleyway. I waited in the car with the engine running, ready to speed off as soon as Mike ran back and got inside. But when the man came out with his food, Mike seemed to think this wasn't the man he'd thought it was. He walked back to the car and we drove on.
During the period surrounding Chuck's death, I started studying shootouts in earnest: how and when they happened and what the ongoing conflicts looked like over time. But I don't believe that I got into the car with Mike because I wanted to learn firsthand about violence, or even because I wanted to prove myself loyal or brave. I got into the car because, like Mike and Reggie, I wanted Chuck's killer to die.
Perhaps Chuck's death had broken something inside me. I stopped seeing the man who shot him as a man who, like the men I knew, was jobless and trying to make it at the bottom rung of a shrinking drug trade while dodging the police. I didn't care whether this man had believed his life was threatened when he came upon Chuck outside the Chinese takeout store, or felt that he couldn't afford to back down. I simply wanted him to pay for what he'd done, for what he'd taken away from us.
Looking back, I'm glad that I learned what it feels like to want a man to die—not simply to understand the desire for vengeance in others, but to feel it in my bones, at an emotional level eclipsing my own reason or sense of right and wrong. But to go out looking for this man, in a car with someone holding a gun? At the time and certainly in retrospect, my desire for vengeance scared me, more than the shootings I'd witnessed, more even than my ongoing fears for Mike's and Tim's safety, and certainly more than any fears for my own.
Today, Prof. Goffman posted her explanation of the passage:
First, let me say as plainly as possible: at no time did I intend to engage in any criminal conduct in the wake of Chuck's death. The passage in question comes at the end of a methodological appendix, in which I was describing the community reaction to his death as well as my own reactions in this difficult period. The summary account in the book does not include significant points that are relevant to the claim that I was engaged in a criminal conspiracy. Most important, I had good reason to believe that this night would not end in violence or injury.
Chuck and Mike were best friends growing up; by the time I met them, Chuck was in his late teens and Mike in his early twenties. We got to know each other while I was in college, becoming quite close friends over that period. In the months before he died, Chuck was actively working to preserve a precarious peace between his friends and a rival group living nearby. His sudden death was a devastating blow not only to his friends and family, but to the whole neighborhood.
After Chuck was shot and killed, people in the neighborhood were putting a lot of pressure on Mike and on Chuck's other friends to avenge his murder. It seemed that Chuck's friends were expected to fulfill the neighborhood's collective desire for retribution. Many of the residents in the neighborhood were emphatic that justice should be served, and the man who killed Chuck must pay. But they weren't actually doing anything.
Talk of retribution was just that: talk.
In the weeks following Chuck's death, his friends occasionally drove around, ostensibly looking for Chuck's killer. But these drives, like the talk of the residents, also came to nothing. This was so because it was common knowledge that Chuck's killer had fled right after the shooting. These drives seemed to satisfy the feelings of anger and pain; they were a way to mourn a dear friend, and showed people in the neighborhood that Chuck's friends were doing something.
One night, when Mike could not find anybody else to go with him, I agreed to drive. I felt ambivalent, but I went because I knew these drives were about expressing anger and about grieving, not about doing actual violence. I had talked Mike down from violence in the past, as did many other women in his and his friends' lives.
There are other disputes between Prof. Lubet and Prof. Goffman, but I set them aside here; instead, I just wanted to focus on this particular controversy, and set forth both the passage from Prof. Goffman's book and her recent explanation of that passage. Naturally, there still remain three questions here:
(1) How should the legal system and the profession react to actions such as this? As a practical matter, it may well be that, even if some crimes were committed, the statute of limitations has run; much depends on how much time Prof. Goffman has spent living in Pennsylvania since the events that took place here, see 42 Pa. Consol. Stats. Ann. §§ 5551-54. Moreover, under the Pennsylvania corpus delicti rule, a defendant's admission is generally not admissible at trial "unless corroborated by independent evidence that the crime actually occurred." The question thus likely isn't whether a prosecution is likely to be launched on these facts—of course, keeping in mind both the passage from the book and the author's explanation of the passage—but more broadly how such conduct should be reacted to even if no prosecution is brought.
(2) Is it relevant that, at least under the account in the book, the author—as a researcher—seemed to be helping a research subject engage in behavior that could expose not just the target, but the research subject himself, to great risk? (If Mike had indeed caught up to the shooter and killed him, then Mike would have been facing a murder prosecution, and of course shooting at someone poses the risk of the person shooting back. Is it sufficient that it seemed unlikely, according to Prof. Goffman's explanation of the passage, that Mike would indeed catch the shooter, or otherwise get into a dangerous situation?)
(3) Perhaps I'm mistaken, but the explanation strikes me as presenting matters in quite a different light than the original passage from the book did. If that is so, might it cast some doubt on the precision and reliability of other passages in the book, especially given that the author had destroyed her notes in order to make sure that they could never be subpoenaed in any prosecution of the people she had been studying?
One more item: Prof. Jack Katz (UCLA), an eminent sociologist wrote the following to me about this matter. It is not a perspective that I would take myself here, but I thought I'd pass it along (with his permission), both because it offers a defense of Prof. Goffman, and because it sheds light on one way in which researchers view such matters (whether or one agrees with that way):
The line between bravado and committed intent is handled as a binary in the law; but the messiness of that distinction is the very crux of a 'badass' way of life. (On which I've written in a book, Seductions of Crime, over 20 years ago.) When these matters get into public discussion and criminal proceedings, the binary—whose side are you on?—takes over. I am afraid that this point, that the messiness of the line between posturing and practice is at the essence of the phenomenon, won't be heard in this context and will probably add to the strength of those who would damn her and outlaw this kind of immersion research….
As a citizen, as well as in my career as a sociologist, I'm concerned about interventions in this discussion that might embrace the flexibility of "conspiracy" and aiding and abetting laws to shut down descriptions of social life that many readers will take as resources for criticizing the government. Personally, I realize that it has not been since the Chicago 8 (then Chicago 7) that the use of conspiracy laws to shut down dissent or critical expression was something I had to think about in this country. (But maybe I have been asleep for 40 or so years.) I realize as well that labeling yourself a sociologist, like labeling yourself a journalist, gets you no privileges, but when conspiracy laws alone are the only formula available for prosecution, the abuse potential should remain the first and central concern.
As someone who, in order to inform policy and advance sociological knowledge, promotes close-up descriptions of social life through immersion fieldwork, I'm concerned about the potential of this controversy to quash the whole field of participant observation research in areas of social life that the government considers rife with criminality. In the history of academic sociology, ethnographic immersion in social life on "the other side" has been an important contributor to political culture in the US, going back to studies of gangs and "vice" institutions in the 1920s, through Becker's and others' studies of "deviance" in the 1950s and 1960s… I see Alice in that tradition and fear that academic sociologists, the great majority of whom work at a much safer distance from the people they write about, who indeed spend virtually all of their research life within the halls of academe, will become very wary of fieldwork that takes the researcher intimately into social worlds that are rife with what the government considers crime.
It should also be noted that many of the most significant contributions have been made by academics whose participation in a PhD program came after their immersion in criminal worlds (as is the case with Alice). In such cases, it is sloppy thinking and greatly misleading to frame this discussion as one about the university's responsibility in sponsoring, organizing or encouraging the risk taking. PhD work usually comes as a respite from immersion that is already over.
This is not to say there are not personal, ethical issues of great magnitude raised by the statement Alice wrote about the revenge ride. But from my experience (more as a supervisor, reader, editor of ethnographic fieldwork than as someone who has done fieldwork with a high level of risk), there's no risk-free, ethically insurable way to get a close up view of the kind of social world Alice was studying, where bravado and posturing, and the dramatization of destructive intent, are part of the fabric of everyday life. To take actions that usually are histrionic as presumptive grounds for an accusation, much less an official charge, would be a great way to crush this ethnographic fieldwork on "the other side." The timing of events in this situation, specifically the extraordinary recognition and impact that Alice's book achieved before the ethical and legal issues emerged, demonstrate how vital a contribution this kind of work can make.