Looting, Law, and Lawlessness

As recent incidents in the wake of Hurricane Katrina and other natural and man-made disasters have illustrated, the moral content of looting spans an extraordinarily wide continuum: At one end are predatory and exploitative acts that seem deserving of even greater punishment than ordinary acts of burglary and larceny. At the other end are cases of necessity, involving otherwise law-abiding citizens who, as a result of forces beyond their control, find themselves hungry and exposed to the elements. In between these two poles lies a wide range of conduct that often involves impoverished and alienated citizens living on the edges of society, encouraged to engage in lawlessness by powerful group dynamics and the apparent suspension of civil order. This article begins by examining the various meanings – both literal and metaphorical – of looting. It then considers the factors that make “bad looting” so bad, and “good looting” less so. With respect to the latter, it considers the possibility that: (1) the disruption in normal social order might leave defendants in a “state of nature,” outside the jurisdictional reach of the court; (2) the defendant’s criminal acts were “necessary” in order to avoid some greater harm from occurring; and (3) the otherwise law-abiding offender, suffering from a combination of fright, fatigue, hunger, exposure, and disorientation, should be at least partially excused on the grounds that his acts were “out of character.” The article concludes by considering some of the practical implications of the foregoing analysis, including the suggestion by various “conservative” commentators that the proper response to looters is to “shoot them on sight.” It argues that such a policy would be profoundly misguided, both because the criminal law should not tolerate the disproportionate use of deadly force in response to what is essentially a property crime, and because of the obvious difficulties of distinguishing between bad and good looting, particularly under the kinds of emergency conditions in which such acts are committed