Thursday, November 18, 2010

Why Vigilante Justice Is No Justice At All (And Why Tort Reformers Should Fear It)

This sad story about a molestation victim taking matters into his own hands got me thinking about vigilante justice, and how our changing legal landscape, particularly the "tort reform" movement, may be encouraging it.

In 1995, William Lynch, who was 9, and his younger brother, were sodomized by a priest. Last month, Lynch, 44, entered a nursing home where the priest resided and beat the tar out of him.

Two points of interest: first, the priest was not charged criminally because the statute of limitations had run. Second, in 1998, Lynch and his brother settled their molestation claims against the Catholic Church for $625,000. After the settlement, Lynch continued to have major psychological problems, and even contemplated suicide. Understandably still resentful over what this priest did to him, he took matters into his own hands. And now he faces criminal charges for the beating.

The first reaction to this tragic story is almost universal: to identify with Lynch. After all, who wouldn't want to maim or even kill the SOB who did this to you, or your children if they were the victims of such a despicable act? We all get that. But it's an emotional reaction; a reaction as natural as breathing, and probably as visceral as any other emotional feeling or state of being, like love, for example.

But it raises a larger question: should we condone vigilante justice in a civilized society? American society is founded in large part on the rule of law. Translated, our societal expectation is that our Constitution and criminal and civil justice system offers an orderly mechanism for punishing the guilty, resolving disputes, and holding wrongdoers accountable for the harm they cause. It is the societal glue that holds us together by deterring mob rule, and aggrieved parties from taking the law into their own hands, otherwise known as chaos. Indeed, when we read about reactionary mob rule in Third World countries, our predictable reaction is one of shock and suprise at the lack of order that leads to perceived injustices.

Where does "tort reform" fit into this picture? It is a well organized, multi- billion dollar movement, led by The Chamber Of Commerce, big business, the insurance industry, and medical groups, to restrict or even eliminate Americans' access to the court system in a wide array of mishaps. Examples abound, from financial fraud that devastates our financial freedom, to medical malpractice and medical devices or drugs that ruin our health. Because these wrongdoers and miscreants typically never see prison time for their misdeeds, our civil justice system is the usually the last resort--and the only remedy--for those harmed.

Due to a constant drumbeat of a well orchestrated, thirty year plus media campaign, the tort reformers (well heeled "organizations" and other "interested citizens groups" that are, in reality, astroturf groups funded by conglomerates) have successfully achieved most of their goals. Over 32 states have passed the crowning jewel of the tort reform movement: limitations or "caps" on what innocent victims of wrongdoing can recover in lawsuits. For example, if molestation victims sue in Ohio, their recovery as of 2005 and beyond would be limited to $250,000 for their lifetime of mental anguish and other psychological problems.

Unfortunately, within the next few years, we can expect to see more "reforms" passed in the form of national medical malpractice limits, and "loser pays" legislation. The collective weight of these legal restrictions will ultimately serve the second major goal of tort reform: to make it so difficult or so expensive for ripped off or maimed victims to sue that they say "to hell with it" and forego their diluted right to sue and hold these institutions accountable.

Bottom line: your "rule of law" is being co-opted and hijacked by muscled special interests. But there's a real toxic downside to this stench: as more individuals are left on the side of the road, unable to level the playing field with any meaningful legal recourse, I fear it will encourage an increase in vigilante justice. Is it wrong? Sure it is. And I hope I am wrong, but I see this as an unfortunate byproduct of a machine like movement that is, drip by drip, eroding our legal remedies like a thief in the middle of the night. You see, tort reform laws are spawning some other laws that are not yet officially on the "real world" books: the law of unintended consequences.

Vigilante justice makes for a good movie plot. Doesn't work so well in real life.

No comments: