Current Issues in Criminal Justice
Performance Crime and Justice
Due to enhanced audience participation and involvement in content creation and distribution, crime and justice has changed. This change came about with the emergence of new digital social media and is reflected in the growth of crime and justice performances. Performances today are ephemeral renditions created and distributed in millions of social media interactions. The irony is that performances previously were created for wide heterogeneous audiences, but access was limited by time, place and medium. In contrast, new media performances are usually directed at smaller homogeneous audiences, but access is potentially unlimited due to their digital nature. In this new social media reality, the altered nature of a performance has important implications for crime and justice. Whereas crime traditionally was comprised of low visibility events in which the actors strove to hide their identities, in the new media world surreptitious crime competes with a growing number of high-visibility crimes. This article explores how the associated evolution of performance has affected crime, law enforcement and the judicial system. The impact of performance crime and justice will continue to stress criminal justice systems and change the way crime and justice is experienced in the 21st century.
Keywords: crime and justice performances – social media – legacy media –
new media – media consumers
A ‘crime and justice performance’ can mean different things depending upon how ‘performance’ is conceptualised. In this article, a performance is not perceived in the sense of Goffman’s (1959) front- and back-stage social role performances in which a socially established social role is assumed and acted out by an individual. Nor is it seen as a Boorstin (1962) ‘pseudo-event’, which is akin to a public relations ersatz event created solely for public consumption and publicity. While performance crime and justice can be events created for publicity, and crime and justice ‘occupations’ — such as police officer or delinquent — are available social roles, performances in this discussion are seen as usually having more authenticity than pseudo-events and are normally ‘real’ crimes and justice events. Additionally, in the new media performances, the social roles involved are best conceived as ‘on stage’ rather than front- or back-stage Goffman-style social roles. While the temporary adoption of a ‘role’ is an element of a contemporary crime and justice performance, embracing a social role is not a crucial component. Therefore, performances here are more akin to Yar’s (2012) ‘will-to-representation performance’, in which crimes are committed as part of a new media content production agenda aimed at recording, and disseminating acts as a means of self-representation and promotion.
Yar’s (2012) conceptualisation of performance as a public construction of self best captures the qualitative difference that new media bring to crime and justice. Along these lines, the core central element of contemporary crime and justice performance is behaviour created for digital distribution by either willing or unwilling performers. Performance in this perspective can be of two types: the first is a sort of ‘informed consent’ performance where the actors are aware of the production and realise and at least tacitly support subsequent distribution — a performer is ‘behaving for the camera’ similar to an actor in a theatre play. The second involves an uninformed, unwitting performance produced without performer knowledge or acquiescence — here a person is being recorded in a naturalistic production similar to a nature film, but is not knowingly performing in the theatrical sense. Crime and justice performances of both types have exploded due to the nature and impact of new social media (Surette 2015).
Historical crime performance
Crime and justice performances did not come into being with the mass media and pre-date social media by centuries. The history of crime reflects acts that predominantly were hidden, secretive affairs committed in ways that sought to hide the identity of offenders and, often, the occurrence of a crime. Within this broader trend, attention-seeking offenders have co-existed and have provided periodic crime and justice public performances. For example, there is a long history of criminals seeking attention by writing letters to the media or police (Gibson 2004; Guillen 2002). However, until recently, crimes committed as a public performance were largely limited to terrorism and political acts of protest (Penfold-Mounce 2009); for example, suicide by self-immolation as a political protest also has a performance element and has been tied to a wave of public suicide performances in the 1960s (Ashton and Donnan 1981; Crosby, Rhee and Holland 1977). Performance justice in the modern sense has been present since at least the 1600s, but has been the exception rather than the rule in criminal justice. The ‘execution spectacles’ in the United Kingdom and the procession of the condemned from the British communities of Newgate to Tyburn provide early historical examples of justice spectacles conducted for public consumption (Gatrell 1996; Sharpe 1985:149). These public execution performances were tightly staged with a stereotyped role for the condemned, who were expected to deliver scripted ‘gallows confessions’ that became the basis for post-performance print productions (Sharpe 1985:150; see also Radzinowicz 1968). Sharpe (1985:156, 162), for example, noted: ‘[Those executed] were the willing central participants in a theatre of punishment and [t]he set-piece execution was a dramatic performance [in which] rarely has a part been played more effectively than by English felons going to their deaths.’ These early crime and justice performances were thought to have served a social function supporting the status quo of both the religious and royal establishment (Sharpe 1985:165).
Regarding criminality, terrorism has the clearest historical roots in performance crimes committed with audiences in mind. In a pre-social media study, Weimann and Winn (1994) describe a ‘theatre of terror’ operating, where the relationship between media and terrorism defined terrorist acts as terror performances created for western news media consumption.
Similarly, the perception of the courts as stages and trials as performances long precedes the age of social media (see, for example, Ball 1981; Potter 1998). Performance policing, along with the rise of the ‘celebrity’ criminal, also has pre-social media roots and can be traced to Hoover’s FBI in the 1930s and the rise the ‘automobile bandit’ in the United States (‘US’) (Potter 1998:62). The rise of performance policing and celebrity criminals in the depression-era US is analogous to the rise of the contemporary performance criminal in that new technology became widely available and changed the nature of criminality. Potter (1998:77) relates regarding 1930s America:
[C]onsuming the news was a new form of leisure that wove knowledge about exotic strangers into a national vernacular ... bandits were particularly suited to aesthetic and consumer exploitation in a period characterised by the explosion of information technologies, particularly newsreels, radio, and syndicated news services.
Hence, in the 1930s US, it was the automobile and the highway systems and new electronic media that encouraged a moderate growth of performance crime and justice; in contemporary times across the globe, digital communication systems and the internet have fuelled an explosive growth.
Contemporary performance crime
In spite of its long history, performance crime has quantitatively made up only a small portion of a society’s total crime picture and, until recently, justice performances in the ilk of public executions steadily declined, represented by the occasional media ‘trials of the century’ (Greek 1996; Surette 2015). However, performance crime and justice has changed of late from a rare to a continuous phenomenon. Related to the characteristics of new media, a set of social forces drives quantitative and qualitative changes in performance crime and a contemporary range of seemingly disparate crime and justice activities by offenders, and law enforcement and judicial personnel can be today understood through the conceptual lens of a self-representative performance (Helfgott 2015:53; Yar 2012). ‘Performances’ are no longer rare events that are place and time bound to physical stages and scheduled broadcasts; they are now ephemeral renditions constantly created and repeatedly distributed in millions of social media interactions. The irony is that legacy media performances were created for wide heterogeneous audiences, but access was limited by time, place and medium. In contrast, new media performances are usually created for small homogeneous audiences, but access is often unbounded due to their digital nature. In this new social media reality, the altered nature of a performance has had significant effects on criminal justice.
A recent shooting spree in the US provides an example of the shift. The spree began when Elliot Rodger, a young, affluent Californian college student stabbed to death three men in his apartment, drove to a nearby sorority house where he shot four people, and next shot to death a student at a local food store. Rodger continued shooting and wounding several more victims until crashing his car and committing suicide (CBS News 2014; The Daily Nexus 2014; Helfgott 2014). What distinguishes his killing spree from similar sprees a generation ago is the effort that Rodger’s exerted to distribute pre-spree performance soliloquies in which he offered justifications for his murders. Among a set of uploaded YouTube videos, Rodger posted ‘Elliot Rodger’s Retribution’, in which he outlined details of his upcoming attack and his desire to punish women for rejecting him and sexually active men for ‘living a better life’ (New York Daily News 2014). Rodger’s ‘retribution’ video was reminiscent of two prior mass shootings: the Columbine school shooters’ ‘basement tapes’ and the Virginia Tech killer’s photo diary (Helfgott 2014). Such events served as harbingers of the crime and justice performances that now regularly occur. Contemporary criminal justice professionals, citizen observers and participants in criminal cases, and offenders are today willing (and unwilling) ‘performers’ in a new social media performance-driven world.
This change came about with the transition from legacy to new media, which in turn brought about changes in society and created new stressors for criminal justice systems.
What differentiates new from legacy media is that new media are utilised via interactive devices that use digital technologies to access and distribute multimedia content in the form of print, sound, still and moving images. Communication is fast, often instantaneous, unbounded, and unedited. This set of media and their digital content dominate under the umbrella label of ‘social media’ (Flew 2002). A blurred boundary between legacy media and new media has slowed recognition of how seismic the shift has been (Surette 2012). New media incorporated content from the legacy media of newspapers, magazines, radio, television, film and music into new personalised, high-speed, digitally delivered products. The content and portrayals of crime and justice look similar and the transition, at least concerning what content is available, has been largely seamless. The result is a muted recognition of the substantial impact of the shift on crime and justice (Surette 2012).
Media consumers as influencers, producers and distributors
The most significant noted change has been in the nature of the relationship between media content and media consumers such that media consumers now much more substantially influence the content they consume than in the past (Flew 2002; Surette 2012). Except for live events that a person wants to experience physically and in real time, with new social media little content must be consumed at a particular time and place and few social events have to be physically attended. Unless consumers actually want to ‘be there’, they can still have the experience of ‘being there’ while fitting a ‘been there’ mediated experience into their schedules. In addition to a sense of attendance being easier to achieve, the sharing of experiences has also eased. When legacy media was dominant, media content was created and distributed by distant others (most employed within some component of a media industry) to be delivered to distant isolated consumers, to have whatever social impact it was destined to have (Surette 2015). One side created legacy media content, the other was affected by it. Feedback loops between audience and creators were weak, slow and haphazard and there were clear, obvious distinctions between writers and readers, singers and listeners, performers and audiences, and producers and consumers — which longer dominate in the new media world.
With social media, consumers can also be producers of self-generated mediated content and can additionally assume the role of content distributors if desired (Yar 2012:248). Today, media content distribution is a diffused decentralised experience (Mittell 2013:37). The ‘top down’ flow for media content and effects has been replaced with multi-directional audience participation, peer-to-peer distribution, and the proliferation of user-generated content (Yar 2012:249). The isolated acts of ‘reading the newspaper or turning on the television’ have been replaced by the collective experience of posting, tweeting and ‘going viral’. A user of legacy media was an audience member, a viewer, a listener or a reader; reflecting their more active roles, social media consumers are users, players or surfers. The development of new media expanded on-demand access to content, eased virtual attendance at live events and encouraged consumer participation in content creation. The end result was the shifting of audiences from passive to active participants and to performance emerging as a core element in the contemporary media–audience relationship. Due to the increasingly active role of audiences, the traditionally separate domains of ‘media’ (where content and information are made) and ‘society’ (where content and information are consumed) blurred (Lindgren 2011).
The consequence is that what happens in contemporary society frequently becomes media content as it happens and a large portion of society has become authors, directors and publishers of media content and performers. The traditional research question of ‘What are media effects on society?’ is less relevant today than the study of how a ‘mediated performance-based society’ functions. Social media have resulted in broad cultural changes in how the public receives and processes information and understands and interacts — with the world in general and with criminal justice in particular (Conference of Court Public Information Officers 2010:17). In terms of knowledge about the world, enormous amounts of information and numbers of people are accessible, and social media provide access to the personal diaries, photo albums and home movies of millions of people, most of it freely provided by the subjects so that the early 21st century is an era of unprecedented self-surveillance. With self-surveillance common, the nature of surveillance has also fundamentally altered so that people place themselves open to the voyeuristic gaze of others within uncountable small-scale private performances that are socially mediated in ways that allow for large scale public consumption. Social information in the 21st century flows freely from the ‘cloud to the crowd’ (Strutin 2009) and one of the more notable changes has been the large-scale production and distribution of social performances (Penfold-Mounce 2009).
The world of crime and criminal justice has not been immune to this social media-generated performance dynamic, so that the public not only follows crime and justice, but participates and adds their own performances (Surette 2012). Where legacy media allowed us to look over the shoulder of criminals and crime fighters in a war on crime, social media allow us to now directly join the battle (Fox, Sickel and Steiger 2007:100; Valier 2004:–; Surette 2015). Performance crime and justice has exploded upon the criminal justice system in spectacles of people on all sides of a crime recording, sharing and uploading crime and justice acts, the most obvious being the proliferation of ‘performance crime’.
Contemporary performance crime encompasses the spectacle of recording, sharing and uploading crime in order to distribute the performance to new media audiences (Yar 2012:246). In practice, performance crimes often are purposely created and distributed by offenders. The growth of performance crime is tied to a celebrity culture that emerged in the 20th century in which ‘celebrities’ became a focus of public interest and becoming a celebrity a career goal (Cashmore 2014; Harvey 2002; Helfgott 2015:53). The celebrity culture embraced crime from its beginning; first, via ‘criminal celebrities’ (people who because of their criminality became celebrities, for example, the gangster Al Capone); second, as ‘celebrity criminals’ (persons who first became famous and subsequently became linked to crime in either serious offences such as murder (athletic stars OJ Simpson, Aaron Hernandez, and Oscar Pistorius come to mind) or in strings of comparatively minor offences (Lindsay Lohan’s or Justin Bieber’s repeated run-ins with criminal justice, for example). Spurring the development of the criminal celebrity was the recognition that a famous criminal was also a valuable commodity. As predatory criminality became a dominant portrait of criminals and the stories of victims gained media interest, and punitive criminal justice policies gained public support, criminal celebrities fell into social disfavour in the late 20th century, paving the way for individuals to use criminality to enhance fame (Harvey 2002; Penfold-Mounce 2009; Potter 1998). Criminal celebrities have been supplanted by the more socially palatable celebrity criminal, who today dominates the world of crime-related fame (Penfold-Mounce 2009). Whereas connection to criminality was a career killer for media personalities through most of the 20th century, criminal behaviour by pre-existing celebrities is often accepted today and can, if properly managed — as the careers of Miley Cyrus and Paris Hilton demonstrate — be career enhancements (Penfold-Mounce 2009:151).
Encouraged by the commodity value and possible career boosts that performance crime could provide, a large amount of the mass distributed performance crime was further encouraged by the shift from the unidirectional relationship between legacy media content producers and media consumers to the multidirectional social media dynamic, where consumers are frequently simultaneous producers of media content (Yar 2012:248). With this shift, the process of using criminality for self-promotion also changed. Historically, with legacy media and criminal celebrities the process most often followed a sequence of a career in crime, followed by an arrest and sentence, and only at that point was the criminal’s story promoted and marketed. That changed with celebrity criminals who, already famous, were linked to a crime either as suspect or victim (Penfold-Mounce 2009).
With social media, the altered process is that crime involvement and self-promotion are intertwined. In this social reality, social media’s encouragement of people to validate themselves has resulted in a plethora of incriminating crime videos being voluntarily posted (Yar 2012). Exemplified by Rodger’s pre-shooting spree rants, offenders have posted
pre-crime confessions, videos of themselves in the act of committing offences, and post-crime footage holding evidence and bragging about their criminal acts. In the process, these enthusiastic performers often generate the evidence used for their arrest and conviction. Examples of performance crimes abound on the internet and include activities such as ‘ghost riding’, the ‘knockout game’ and ‘bum fights’,[†] all of which involve social media-based crime waves in which crimes were openly committed, filmed and posted for acclamation. The current state is that growing public expectations for entertaining crime and justice spectacles have increased the number of celebrity criminals, celebrity victims and performance crimes by non-celebrities seeking attention (Helfgott 2015:53; Penfold-Mounce 2009:–). Adding to the social impact, the social media dynamic that drives offenders to post their crime performances has also influenced the treatment of crime victims, so that ‘performance victimisation’ is also a new reality.
In a pernicious process, the social need to share that drives performance crime also enhances the sense that criminal acts are socially acceptable because their social media distribution has a waiting audience. This adds a public humiliation element to a number of crime victimisations. Performance victimisation involves the recording and posting of the victimisation, humiliation or taunting of a crime victim. A depressing set of examples exist where someone was victimised, often in a sexual assault, and his or her victimisation was subsequently publicised in a secondary follow-on victimisation involving public exposure and ridicule. A number of suicides by post-crime victims exposed to additional social humiliation have been reported (Goode and Schweber 2013; Murphy 2014; Oppel 2013a, 2013b). The Steubenville, Ohio, rape case in which an intoxicated teenage girl was photographed as she was carried unconscious to a series of parties and sexually assaulted by members of a local high school football team is a recent example (Oppel 2013a, 2013b). ‘Revenge porn’, in which video and images of usually ex-girlfriends are posted by individuals as a means of humiliating their former romantic partners is a similar phenomenon. In these cases, social media plays a dual role as part of a performance crime that has been recorded by offenders and as part of the subsequent victimisation process. It is the distribution via social media platforms of the visual record of the initial victimisation that adds harm to the crime in a perverse ‘shaming-the-victim’ social process.
Another concern regarding social media-based performances and victimisation involves the use of social media to select and target crime victims. Examples abound of sexual predation of children where, despite public concern and periodic moral panics (Lindgren 2011), sexual predator males engage in false role performances to solicit children online, establish virtual relationships, and arrange meetings for sex (Barnard-Wills 2012; Delong, Durkin and Hindersmarck 2010; Perlroth 2012; Taylor, Fritsch, Liederbach and Holt 2011). The use of false social media performances to reach victims is not limited to sexual crimes. Murderers have also made their initial contacts with homicide victims on social media sites (Gilmour and McGloughlin 2011; Handley 2010).
Social media additionally provide a means for offenders to commit the oldest from of performance crime, terrorism, in new ways (Grabosky 2001; Tinnes 2010; Weimann 2006).[‡] Social media allow global recruitment and dissemination of terrorist propaganda that can be tailored for both near and distant audiences, victims, enemies and supporters (Surette, Hanson and Nobel 2009). The social media efforts of ISIS (the Islamic State of Iraq and Syria) provide examples of multiple social media performances aimed at varied audiences utilising social media to successfully distribute content and attract new recruits (Farwell 2014; Moore 2015; Talbot 2015). The regular online posting of terrorism videos and the numerous terrorist group internet sites exemplify how the contemporary terrorist has embraced social media to produce online performance terrorism specifically tailored to multiple audiences (Farwell 2014; Moore 2015; Musa 2012; Surette, Hansen and Nobel 2009; Talbot 2015; Tinnes 2010).
Another component of the performance crime trend is crime coordinated via social media to arrange spontaneous performance crime events akin to flash mobs (Goodman 2011). Flash mobs involve the convergence of a large number of strangers at an agreed time and place to perform some agreed-upon behaviour and involve the coordination of a large numbers of individuals through social media communications for a one-time collective performance. While most flash mobs are benign and involve singing or dancing, crime-related flash mobs have been generated, in which large groups of offenders have been organised through social media (Al-Lami, Hoskins and O’Loughlin 2012; Dobbs and Satter 2011; Goodman 2011; Weiss 2010b). A major advantage of participating in a flash mob is that those caught or arrested cannot identify other participants, allowing individuals to commit a crime with a reduced risk of arrest (Goodman 2011:–; McCarthy 2008).[§]
Social media can also be used to aid the individual offender in directly carrying out a crime, for example:
A crook was able to get away with an armored truck robbery by soliciting decoys on Craigslist with the promise of a road maintenance job. In an elaborate robbery scheme that’s one part The Thomas Crowne Affair and one part Pineapple Express, a crook robbed an armored truck outside a Bank of America branch in Monroe, Washington, by hiring decoys through Craigslist. It appears to have unfolded this way: around 11:00 am the robber, wearing a yellow vest, safety goggles, a blue shirt, and a respirator mask went over to a guard who was overseeing the unloading of cash to the bank from the truck. He sprayed the guard with pepper spray, grabbed his bag of money, and fled the scene. But here’s the twist. The robber had previously put out a Craigslist ad for road maintenance workers, promising wages of $28.50 per hour. Recruits were asked to wait near the Bank of America right around the time of the robbery — wearing yellow vests, safety goggles, a respirator mask, and preferably a blue shirt. At least a dozen showed up after responding to the Craigslist ad. As it turns out, they were simply placed there to confuse cops who were looking for a guy wearing a virtually identical outfit. Police hope to track him down by figuring out who posted the Craigslist ad in the first place (McCarthy 2008:1).
The confluence of the social acceptance of celebrity criminals (Penfold-Mounce 2009), the rise of heavily covered, widely popular media trials (Barak 1999; Greek 1996) and the enhanced audience participation in criminal justice events (Surette 2012) has resulted in a surge in performance crime in the 21st century. The adage that ‘no publicity is bad publicity’ is the current guiding rule for many individuals who pursue criminal infamy as a substitute for unattainable law-abiding fame. With the rise in performance crime, an increase in performance crime fighting followed.
Performance crime fighting
In addition to online sting operations, police agencies examine social media performances in their investigations of crimes, in their identification of suspects, and in their pursuit and apprehension of offenders. However, the main impact of social media performance on law enforcement has been to enhance and extend surveillance. While not voluntary performances in the strict sense of Yar’s conceptualisation, the involuntary performances produced by surveillance have developed as a valuable criminal justice resource. The social dynamic behind this development is that social media increased self-surveillance and the accompanying voluntary performances to the point where the reality of surveillance shifted from a rare, narrow activity determined by an immediate need related to a specific criminal case to a common, pervasive, constant and, most importantly, socially accepted presence. Hence, an unanticipated side effect of social media performances, criminal or otherwise, is the increased tolerance of police surveillance (Surette 2012). As the criminal justice system has shifted its temporal focus from post-crime reactions, investigations and prosecutions to pre-crime prevention, risk reduction and target hardening, the historical idea that a person must be under suspicion to be brought under surveillance has faded, and broadly targeted, automatic, continuous surveillance has become the norm (Surette 2005; Zedner 2007). The popularity of self-surveillance makes hidden and pervasive surveillance more acceptable due to the fact that when voluntary performances are ubiquitous, surveillance is not perceived as intrusive and being in a camera’s view is no longer unusual (Surette 2012). The result is that social media have increased self-surveillance, which in turn has increased tolerance of general government surveillance (Surette 2015). The surveillance of everyone whenever they appear in public to deter potential criminals and protect possible victims reflects both the goals and the unease concerning law enforcement surveillance (Barnard-Wills 2012; Barnard-Wills and Wells 2012; Haines and Wells 2012). Public space surveillance as non-consensual passive consent performances is exemplified by law enforcement-operated surveillance camera systems and the rise of car, body and community surveillance camera systems. These surveillance camera images are regularly culled for evidence and involuntary suspect identifying performances.
Therefore, in addition to citizen self-surveillance, fixed camera systems, body-worn cameras and surveillance drones are expanding the capability for criminal justice-initiated surveillance (National Institute of Justice 2012). Enhanced technological capabilities and reduced costs, coupled with concerns about terrorism, have created a strong impetus for public space surveillance systems that provide law enforcement agencies the ability to ‘police-at-a-distance’ (Coleman and McCahill 2011; Simon 2005).[**] A recent example of tapping the ubiquitous public self-surveillance was provided when US law enforcement agencies tweeted the general public after the 2013 terrorist Boston Marathon bombings for help, evidence and identification of suspects, in reply receiving thousands of leads (Davis, Alves and Sklansky 2014; Kakutani 2013; Shelter 2013). The decision was described as ‘a crucial turning point in a remarkable crowd-sourcing manhunt’ (Stelter 2013). Analogous to crime sourcing, ‘investigation sourcing’ on the part of law enforcement agencies to leverage crowd knowledge is growing. For example, requesting crime scene photos and tagging individuals pictured in Facebook so as to identify rioters has been commonly pursued (Goodman 2011:3). Further exploiting the investigatory utility of innumerable digital social performances, the police have additionally used social media to search for suspects, contact eyewitnesses and track fugitives (Savchuk 2013:A2).
In a separate track and more in line with Yar’s idea of performance, in response to offenders trolling social media for victims, law enforcement agencies have developed social media-based counter-performance efforts. In online sting operations, they post false representative performances to attract and ensnare offenders. Commonly posing as paedophiles, police also pose as potential victims or panderers to attract and capture sex offenders. These law enforcement performances include undercover child sex stings, where law enforcement agents place ads on social networking sites soliciting child pornography or sexual encounters with children, or pose as either children or parents looking to prostitute their children (Dimarco 2003; Taylor and Quayle 2003). In these cases, performance involves police falsely performing to lure individuals to unknowingly perform as predators in surreptitiously recorded crimes. The post-performance production distribution of these efforts has produced popular infotainment programming in the genre of Dateline NBC: To Catch a Predator, a series that depicts a parade of males in their pre-arrest performances appearing at a home expecting to have sex with a child only to be arrested by waiting police.
A set of unsolicited voluntary offender performances has also translated into online digital confessions. The lure of self-surveillance and self-promotion is such that a number of fugitives have provided enough information on social media for law enforcement to determine their locations (Kass 2010; Weiss 2010a). Both Kass (2010) and Weiss (2010a) refer to an example case of Joseph Luebke that went viral. Luebke ran from a correctional halfway house and then extensively Facebooked about his fugitive status, posting his first update ‘on da run’ 18 minutes after escaping. Kass (2010) offered the translation of one of Luebke’s final posts: ‘im jus getting some fresh air before I go bakk to the clinker lol’ as: ‘My dear friends, please don’t worry. I am enjoying the outdoors, breathing deeply of the winds of freedom. Perhaps I may be compelled to involuntarily return to prison, but in the meantime I am laughing out loud.’
In another performance-related trend that reflects increased self-surveillance, a number of performance confessions have been posted online. In these performances, offenders post scenes that clearly reflect and sometimes openly boast of their guilt. Tied into the self-surveillance craze, performance confessions tap into voluntary incriminating performances which admit to criminality. One popular example video shows a 19-year-old girl sitting in front of a camera communicating through captions and miming that she stole a car, smoked weed and held up a bank (holding cash up to the camera to validate her claim) (Locker 2012).[††] A gruesome example was provided in 2014 by a man who posted photos of the body of his murdered girlfriend and the crime scene on the online bulletin board ‘4chan’ (Panzar and Raab 2014). Similarly, Derek Medina, labelled a ‘Facebook killer’, posted a photo of his wife’s corpse along with a confession (Brown 2013:A1). Medina’s last Facebook entries announced that he had shot and killed his wife and were accompanied by a photo of her body with an updated Facebook status: ‘I’m going to prison or death sentence for killing my wife. Love you guys. Miss you guys. Take care. Facebook people you’ll see me in the news’ (Ovalle and Ducassi 2013:A1).
Online confessions remain comparatively rare, but the performance of unintended incriminating evidence is not uncommon (Savchuk 2013:A2). Related to the purposive performance confessions, social media performances have emerged as valuable, if inadvertent, evidence sources and have been tapped by law enforcement to establish timelines, whereabouts and motives. In these performances, offenders are not seeking to confess to a crime, but instead are preening about a crime or simply posting incriminating content that links them to a crime. Beyond the obvious usefulness of such postings for guilt determination, these performances are valuable when they provide better evidence of what an individual was thinking and doing at a specific time or location with both punitive and lenient effects. Performance content obtained from social network sites has: both established and undercut alibis, mental health defences, and sentencing arguments; impeached testimony and witness credibility; established community roots and reputations in support of bail; and provided evidence for ‘no contact’ sentence provisions and parole violations (Silverman 2012:120; Strutin 2009). Prosecutors in particular frequently use defendant postings and damaging internet photos to cast doubt on a defendant’s character, to undermine claims of defendant remorse, and to counter arguments that a crime was a one-time behavioural aberration (Tucker 2008).
Current social media mobile technologies have made it possible for virtually anything a person does in public (and sometimes in private) to be videotaped, texted or otherwise made part of a digital performance and thus part of a law enforcement investigation (UC Davis School of Law 2010). Many individuals have found themselves involuntarily and unknowingly playing a role in a social media crime performance that becomes part of an investigation or case evidence. The over-sharing that lies at the core of self-incriminating performances is a direct extension of the significance that social media has come to play culturally (Ovalle and Ducassi 2013; Savchuk 2013:A2). It is better to get your performance out there and be known than to be unknown in a celebrity culture, even if criminality is required (Penfold-Mounce 2009; Yar 2012). This desire for social acknowledgment extends into the judicial system, where the pursuit of new media performances has negatively influenced two sets of judicial actors in particular.
Historically, the effects from crime and justice performances have been generated from high public interest cases that are heavily socially constructed, and by run-of-the-mill low visibility judicial proceedings (Surette 2015).[‡‡] The most important change regarding the judiciary occurred with the shift of the public from observer to participant. The watershed event in this shift was the first cyber-trial, the 1996 OJ Simpson murder trial in the US (Greek 1996). Simpson’s trial was the first trial to be discussed, dissected and socially performed in cyberspace, with followers participating by sending emails, joining online news groups and chatrooms, and interacting via dedicated websites (Greek 1996:66; see also Barak 1999; Ferrell 1996:47). In its rendering as a crime and justice infotainment performance, the OJ Simpson trial was transformed from a criminal justice event to be simply observed by the public into the equivalent of a massive multi-player game experience (Greek 1996:76). Since that trial, the performance of justice has been dominated by social media where the ‘audience as trial observer’ has been replaced by the ‘audience as participant trial performer’ (Arrigo 1996). As previously noted, the perception of the courts as stages and trials as performances preceded the age of social media (see, for example, Ball 1981); however, in the current judicial performance world, pernicious effects on lawyer and juror activities have emerged as the major concerns (Eve and Zuckerman 2012; Wheeler 2011).
Looking first at lawyer social media performances, in that ‘all the rules that the legal profession rely upon to guide lawyer behaviour were forged before the emergence of social media’ (Strutin 2011:264), the judiciary continues to struggle with defining inappropriate performance and setting ethical boundaries regarding new media. Despite their daily involvement in the formal judicial performances associated with case processing, lawyers often appear to forget that social media performances are not necessarily private. A short list of the self-inflicted wounds include lawyers who have posted privileged and prejudicial material, who have misrepresented their reasons for extensions and case delay requests, who have posted criticisms of judges, colleagues and other individuals associated with ongoing cases, and who have conducted inappropriate searches of a jury pool’s social media (Johnson 2008).
That said, lawyers cannot simply ignore social media performances. Meeting effective counsel standards frequently requires lawyers to actively tap social media as a case resource. Thus, they currently review online profiles, instant messaging, online videos and other social media performances as standard pre-trial case preparation (Eve and Zuckerman 2012:8; Strutin 2011). Rules of proper lawyer conduct have not been clearly delineated, and seemingly benign actions — such as ‘friending’ someone on Facebook to gain access to limited restricted information — can be inappropriate. Currently, a lawyer can perform as a ‘friend’ on Facebook and not violate ethical codes, but cannot give false statements to gain ‘friend’ status, and cannot perform deceitfully. Other restrictions related to lawyers’ social media performances include postings that reveal client confidences (lawyers are advised to obtain informed consent prior to posting material, even when it is based upon open court factual statements), advertising (they are advised to include a clear notice that identifies the content as advertising), and approaching individuals online who they are not representing (‘friending’ adversaries is a particularly questionable practice) (Gunnarsson 2011).
The primary legal issue is connected to the practice of ‘false pretexting’ — the gaining of information by a misleading performance (Strutin 2011). For example, the creation of a false online profile by a lawyer would be problematic. How performance-based information is obtained and whether informed consent was provided have emerged as crucial elements in determining ethical from non-ethical social media behaviour of lawyers. Ground rules that have been suggested are that lawyers should not email or post comments on websites that jurors are known to frequent. Requests for access to private online sites and attempts to view a private page should be preceded by a message requesting access and should provide enough information for informed consent decisions (Gunnarsson 2011). A surreptitious performance on the part of a lawyer to obtain information not readily available to the public unavoidably raises flags (Strutin 2011). The dilemma for lawyers is that failure to explore online performances of clients, victims, jurors and witnesses may result in findings of ‘ineffective counsel’ on appeal. Lawyers can neither ignore the social media performances of others, nor blindly post their own performances. Related issues revolves around the increased level of social media-based performances by victims, defendants, witnesses and particularly jurors.
Performance justice becomes a particular concern when performances by judicial system participants break the informational seal between the courtroom and the public. Courtroom proceedings are designed to be sealed performances, externally observable but not externally influenced. A number of celebrities, such as Tom Hanks, Charlie Sheen, Steve Martin and Oprah Winfrey, have caused disruptions when they have been called for juror duty (Allen 2013; BBC News 2013, 2015; Ferguson 2013; Heritage 2013). In addition to disruptions related to celebrities serving as jurors, by providing easily accessible content and distribution, social media pose tremendous challenges to the sealing of courtrooms from non-judicially vetted information. In these activities, trial participants change their performances from a court-assigned, restricted judicial role to an expanded, self-defined participatory role. Social media are therefore a direct challenge to the traditional construction of the courtroom as a circumscribed performance (Hannafor-Agor, Rottman and Waters 2012:1).
Misuse of social media by jurors has caused mistrials, resulted in juror dismissals, and triggered contempt findings against misbehaving jurors (Galli, Olszyk and Wilhelm 2010; Greenwood 2011; Nuss 2011; Patrick 2008; Schwartz 2009). In their personal social media activities, jurors have looked up definitions of legal terms on Wikipedia, viewed crime scenes on Google Earth, updated their blogs and Facebook pages with remarks about ongoing proceedings, and ‘friended’ criminal defendants, witnesses, lawyers and each other during trials (Eve and Zuckerman 2012:13–15; Grow 2010). The extent of such activities is unknown as most of the available information on social media-based juror misconduct is anecdotal, but limited available survey data estimates that about 25 per cent of jurors have viewed reports on the internet about their ongoing trial, and about 10 per cent have purposely searched the internet during a trial to learn additional information (Thomas 2010:43). In a recent pilot study, Hannafor-Agor, Rottman and Waters (2012) found that a substantial proportion of jurors said they would be unable to refrain from internet use for the duration of a trial, even if ordered to do so. Adding to the concerns, despite the indicators of a persistent level of social media-based juror misconduct, many judges do not perceive social media as a threat to trial fairness, and a number of sitting judges do not issue juror instructions (Dunn 2011). When corrective steps are taken, the most common judicial countermeasures are bench instructions to the jury. Although their effectiveness is questionable, the working assumption is that juror instructions are sufficient and mitigate the risks of social media-generated misconduct (Hannafor-Agor, Rottman and Waters 2012; Galli, Olszyk and Wilhelm 2010).
What drives crime and justice performances and what does an age of crime and justice performances portend? In answer, the cultural shift from ‘audience as passive observer’ to ‘audience as participant performer’ provided a favourable environment for four social forces that today drive the growth of crime and justice performance.
First, the user’s experiences when immersed in social media are significantly different from older legacy media experiences. The new mediated criminal justice performances are realistic and entertaining and, most importantly, participatory (Eve and Zuckerman 2012:4). Starting with home computers and internet access and enhanced by mobile phones, social media encourage people to live together separately — to be, for example, within a family space, but psychologically elsewhere. Because audience members are not isolated as they were with legacy media, a performance may be coming from a distant source physically but feel like it is in conversational reality and from close personal significant others. This has resulted in high levels of socialisation into virtual peer groups and reduced socialisation into physically proximate groups (Sun et al 2013; Surette 2012; Yar 2012). With increased interpersonal interaction afforded by social media came increased user demands to participate in distant ongoing criminal justice events, as well as a substantial increase in performance crime. If someone is having a virtual ‘being there’ experience afforded by new media, the natural next psychological step is to expect to actively participate in what was previously only able to be viewed, read or heard. Twenty-first century audiences are increasingly encouraged to help in the investigation, vote on the verdict, determine the next step, and decide the final sentence (Surette 2015; Yar 2012:248).
In addition, the public acceptance of surveillance is today unquestioned and is linked to the increased exposure of private, backstage behaviours in the news, entertainment and infotainment media. When privacy is rare and voluntary self-surveillance common, surveillance by others seems less intrusive (Surette 2012). Social media unavoidably changes the nature of the relationship between those being watched and those doing the watching (Coleman and McCahill 2011). In a social media-dominated world, the many watch the few in a paparazzi-like, celebrity-focused self-surveillance dance and the few watch the many in official and corporate surveillance of public and business spaces. Most of the time, the negative social consequences of increased surveillance dominate the debate. However, when the actions of law enforcers and the public are monitored, stored and subject to later review, surveillance can also restrain the actions of authorities as much as offenders, as the recent uproar over police shootings of minorities in the US suggests (Young 1999:192). It has been speculated, but is yet to be determined, if the impact in democratic societies will be greater on officials than on citizens (Allard, Wortley and Stewart 2008:–; Newburn and Hayman 2002).
Another driver of crime and justice performance is the loss of control over crime-related media content by the creators of the content. When a criminal justice event is recorded live and goes viral, official ownership and control are lost. Social media content is multimedia, digital, holistic, emotional and image dominated, whereas criminal justice content has traditionally been textual, linear, impersonal and paper based (Social Media and the Courts 2010:–). As social media have broadened access to information, crime and justice performances have become more fluid, multi-directional products whose owners are not apparent (Strutin 2011). An important driver of crime and justice performances is thus the decreased ability of criminal justice agencies to maintain cultural ownership of crime events. The availability of more content to construct performances encourages more performances and their wider distribution. Furthermore, social media are intimate yet anonymous, and information is loosely monitored and widely distributed across blurred digital boundaries. In criminal justice systems, however, cases and information usually flow in one direction and the loosely coupled criminal justice agencies have separate budgets and ideologies. Criminal justice agencies therefore have traditionally held tightly their information, frequently demanding court orders before divulging anything (Surette 2015). Thus, information flows naturally in all directions through social media while in criminal justice it has traditionally flowed in one downstream direction from law enforcement to the courts to corrections with public access restricted (Surette 2015). Subsequent stresses on criminal justice systems from the emergence of free-wielding crime and justice content are unavoidable.
A last influence operating within the social media society is the shift in focus on the part of criminal justice systems from the past to the future. Traditionally, the criminal justice system focused on reacting to past events where a crime first occurred and an agency reacted by investigating, arresting, prosecuting and punishing. In the late 20th century, the function of the criminal justice system shifted from solving crimes to eliminating risk (Hope and Sparks 2000; Lash 2000). Social media has not only shortened the time frame between a crime and the distribution of news of the crime, but has also helped shift the point in time considered appropriate for intervention. In the social media reality, performances are created with the idea that an audience will be watching in the future. Following suit, criminal justice has also become future oriented. Criminal justice is increasingly involved in proactive pre-crime activities exemplified by surveillance and crime prevention aimed at victim target hardening, anti-crime programs aimed at risk reduction, and pre-emptive reverse stings and interventions — all with the goal of doing something today to prevent something happening in the future (Zedner 2007). In a world overrun by social media performances, the organisational performance of a criminal justice agency is today judged by what crime it prevents, as well as what it solves. Preventing the birth of crime performances has become a primary criminal justice goal.
Spurred on by these four engines, it is no surprise that both issues and opportunities for the criminal justice system have been created. Social media-based performances play roles in all aspects of crime and justice today, from criminalisation, crime planning, committing crimes, identifying suspects and victims, pursuing and capturing suspects, locating evidence, and communicating with the public (Davis, Alves and Sklansky 2014). New media crime and justice performances have provided access to new sources of evidence and information and new means to reach citizens while simultaneously undermining long-held criminal justice habits (Silverman 2012:135). They have further expanded access to crime and justice content, while enhancing the entertainment value of criminal justice events (Surette 2012). A desire to provide performances and an embrace of self-surveillance has expanded the options for offenders, victims and criminal justice professionals.
The rise of crime and justice performances leads to a number of research needs. Concerning performance crime, the growth and long-term trends, geographic and cultural distribution, relationship to traditional non-performance crime, harm and victim impacts, and effectiveness of deterrence and sentencing measures are all unaddressed research questions. Some recent performances overlap conceptually, such as ‘swatting’, where a call is made to the police reporting a bogus hostage situation triggering a full swat team response (Federal Bureau of Investigation 2013). One version of ‘swatting’ is tied to live online gaming, where players are linked together. A game player can call in a hostage report for the address of another gamer and watch as the police arrive and storm the targeted gamer’s room. Swatting is thus a mixed type of performance with elements of victimisation performance videos, crime sourcing (with the police as the unwittingly recruited participates), and performance crime. Research on such overlapping performance crime and justice events is, however, absent. Similarly, research on social media performance terrorism has been increasingly advocated (Surette, Hansen and Noble 2009; Taylor, Fritsch, Liederbach and Holt 2011; Weimann 2006), particularly research and countermeasures regarding the ISIS, which extensively uses social media and mediated performances to both shock distant audiences and attract new recruits (Farwell 2014; Moore 2015; Musa 2012; Surette, Hansen and Nobel 2009; Talbot 2015; Tinnes 2010). Concerning performance law enforcement, the legal and ethical aspects of such activities, their effectiveness as deterrents and case evidence generation, as well as entrapment and privacy issues, are in need of research. Regarding performance justice, especially false pretexting on the part of lawyers, similar research questions regarding impacts on evidence assessment and privacy, ethical practices, case outcomes, and participants’ sense of judicial fairness come to mind.
A final important research area involves whether social media-based performances extend and sustain social crises over rare crimes. An ‘amplification effect’ has been hypothesised, which transforms rare but extreme local cases into generalised national moral panics (Fox 2013:–). Described as a ‘social echo chamber’, social media are thought to pick up, repeat and loop crime performances to the extent that alternative perspectives and policies are barred from public discourse (Fox 2013:–, ). Research on whether dominant social media performances forward a society-at-risk social construction, where imminent, constant, lethal dangers must be aggressively and punitively addressed, is suggested. The pertinent research question is whether the collective social impact of crime and justice performances is the ratchetting up of public fear and the narrowing of public policies. The study of the relationship of performance to criminal justice policies and the evaluation of resulting performance-driven criminal justice practices is called for. Lastly, along these lines, the ultimate impact of performance on trust and legitimacy levels held toward criminal justice needs further exploration.
In closing, William Shakespeare was particularly insightful when he penned: ‘All the world’s a stage, and all the men and women merely players’ (As You Like It, Act 2, Scene 7). His sentiment aptly describes the world of crime and justice in the twenty-first century where purposeful and serendipitous performances abound. Performance crime and justice will continue to stress criminal justice and alter the way crime is committed by offenders, cases are processed by criminal justice agencies, and justice is experienced by citizens into the foreseeable future. The most notable effect is through purposive ‘performance crime’ committed to gain attention in the world of social media, but the other less visible effects on criminal justice are predicted to be equally significant over the long term. The growth of performance crime, performance law enforcement and performance justice produce a unique set of phenomena that criminal justice systems worldwide will have to manage.
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[*] Professor, Department of Criminal Justice, University of Central Florida, 12805 Pegasus Drive Orlando, Florida 32816-2200, USA. Email: email@example.com.
[†] Ghost riding is the practice of riding on top of a driverless but moving vehicle; the knockout game is the filmed surprise assault on strangers; bum fights entailed the filming of homeless people being forced or bribed to engage in fistfights. YouTube videos associated with ghost riding, bumfights and the knockout game can be found at <http://www.YouTube.com> . The Mistah FAB video and song that launched the ghost riding craze can be found at ‘Ghost Ride It’ (the official video) at <https://www.youtube.com/watch?v=xLvlGVNInw4>.
[‡] In regards to crimes that have been traditionally performance based in that another’s identity is assumed, fraud and identity theft have been significantly enhanced as performance ‘cybercrimes’. Social media and global networks have made it easier for identity thieves to obtain names, addresses, dates of birth, work and school locations, phone numbers and other personal information, and to digitally pose as another person (Taylor, Fritsch, Liederbach and Holt 2011:–). Two other traditionally face-to-face offences, bullying and stalking, have also evolved to incorporate performance elements. ‘Cyber-bullying’ has become recognised as a unique new form of social harassment with its own pernicious dynamics of anonymity and continuous threats through broad exposure via social media performances that make ‘peer-to-peer’ performance bullying more harmful than the older ‘face-to-face’ schoolyard version, as online performance bullying follows victims from school to school and community to community (Hinduja and Patchin 2009; Turan et al 2011). Along similar lines, social media have made stalking a virtual experience, where people are stalked from afar and stalkers digitally drop in and out of someone’s life, assuming and performing the role of stalker at the stalker’s leisure (Brown 2010; Lyndon, Bonds-Raacke and Cratty 2011; Reyns 2010).
[§] As virtual performance crime became a possibility, the determination of what constitutes a crime has become more ambiguous (Henry and Lanier 2001; Surette and Otto 2001). When social media-based activity qualifies as real-world criminality, and whether someone is or is not a crime victim, have become blurred. A striking example is provided by the 2013 trial of ‘the cannibal police officer’, in which a New York City police officer was convicted for kidnapping conspiracy after discussing on an internet site the kidnapping, rape, murder and cannibalisation of female acquaintances (Goldstein and Rashbaum 2013; Weiser 2013a, 2013b). The question the case raised was: when does a virtual performance about crime, contemplated in an internet chat room, become a real-world offence? In the case of the cannibal police officer, the answer hinged on the line between fantasy and reality. The jury decided that, in this instance, a perverse performance fantasy had indeed crossed into a culpable criminal plan, and decided that the police officer was not simply role playing but laying the groundwork for the actual kidnapping, torture and killing of women he had targeted (Goldstein and Rashbaum 2013; Weiser 2013a, 2013b).
[**] Three academic journals have recently produced issues focused upon the growth of surveillance in crime-control efforts: Surveillance and Society 4(3), 2007; Theoretical Criminology 15(3), 2011; and Criminology and Criminal Justice 12(3), 2012. Brief introductions and overviews regarding law enforcement considerations linked with creating public space police surveillance camera systems can be found in Clancey (2009); McLean and Worden (2010); and Ratcliffe (2006).
[††] The YouTube video of the female bank robber with news coverage is available at <https://www.youtube.com/watch?v=iaFcSU6fLwo>. The captions in order are: ‘I stole from a car. A full bowl full of weed in an ICP pipe. The other one has already been smoked. Than I stole a car. Than I robbed a bank. $6,256. Why? Because the government stole my baby and they took him away before I could even take him home. And they changed me with neglect.’ Other examples of social media leading to the capture of offenders are offered by Stennett (2012) and Matyszczyk (2009).
[‡‡] Non-performance-based social media applications in the judiciary revolve around court administration issues. Document processing through social media communication platforms has sped the processing of cases and reduced delay (Strutin 2011). In Australia, for example, the courts have approved contact through a person’s social media online profile as satisfying legal notice and complaint-issuing requirements, as well as the delivery of court orders (Strutin 2011:252).