Inter-group conflict—Montagues vs. Capulets, Sharks vs. Jets, Crips vs. Bloods—often culminates in episodes of unplanned, catastrophic violence. These cathartic but often gruesome incidents must then be interpreted after the fact by the stereotypically level-headed third parties called upon by the criminal justice system to prosecute, defend, and ultimately judge the perpetrators. These professionals’ understanding of inter-group psychology (and their ability to impress that understanding upon a jury) will influence the outcome of the legal proceedings, and ultimately the sentencing of those convicted (if indeed they are convicted).

Depending upon the facts and circumstances surrounding a violent inter-group incident, and the jurisdiction in which it occurred, such episodes may be prosecuted as “hate crimes” —a new category of offenses worthy of the harshest possible legal sanctions. This is perhaps ironic, given the fact that the same fact pattern, analyzed through group conflict psychology, may minimize the individual liability of criminal defendants or, if a conviction is inevitable, potentially reduce their sentencing exposure.

Let’s imagine a hypothetical criminal matter in which a young Muslim-American named Khalid Al-Kharsa was killed immediately following the tenth anniversary of the September 11, 2001 attacks. The youthful co-defendants are suspected members of MJOLNIR, an organization committed to “white power,” and to violent confrontation with individuals and entities deemed to be hostile to Western values. Imagine yourself to be a representative of a prestigious law firm hired to defend Alex Anglo, a well-liked athlete, volunteer and honor student who had not been known to espouse radical views prior to joining MJOLNIR in the summer of 2011. What would be your best conceptual tools to investigate and interpret the events, and how would you sell your version to a jury?

Among the most useful weapons in your arsenal would be social identity theory, which holds that groups persist because they provide individuals with an identity. One maintains self-esteem by viewing one’s in-group positively and out-groups negatively. Most in-groups cultivate a sense of fraternalistic deprivation—historical injustices perpetrated by out-groups against the in-group. Dysmorphic rumination—collective brooding upon this deprivation (in songs, poetry, or folk art) encourages in-group bonding. For MJOLNIR, the 9/11 attacks may have served as the object of this rumination.

As conflict escalated between the United States and the Arab/Muslim world in the decade since 9/11, structural changes occurred in both groups. Certain egregious incidents, like the 2004 Abu Ghraib prison abuse scandal and the subsequent immolation of Blackwater contractors in Fallujah, polarized both groups. Atrocities committed by out-groups give the in-group a sense of moral superiority. These events silence or radicalize moderates who choose the comforts of ethnic community over ostracization. The center tilts toward extremists, who compete for attention with provocative opinions that become less controversial through exposure. Over time, thinking becomes more rigid, generating in-group solidarity and cohesion around runaway group norms.

Supported by runaway norms and shared conflict experience, group goals become more contentious and victory-oriented. After 9/11, conservative pundit Ann Coulter quickly demanded that the U.S. forget about capturing and prosecuting the terrorists responsible. Instead, she demanded that Washington “invade their countries, kill their leaders and convert them to Christianity.” Militant leaders encourage this kind of pseudospeciation of out-groups because harsh strategies seem acceptable against nonhumans. Extremist Hutu radio transformed Rwanda’s Tutsis into “cockroaches” before their 1994 genocide, and Malcolm X stole headlines from the moderate Dr. Martin Luther King by referring to caucasians as “white devils.”

The post-9/11 environment created a greater potential for violent conflict and the empowerment of militant leadership. Eventually, militant subgroups like MJOLNIR emerged from an already polarized population. Forged in conflict, such subgroups have a vested interest in perpetuating that conflict to secure social status and identity. Within MJOLNIR, our client, Mr. Anglo, would have felt unbearable pressure to conform to MJOLNIR’ conflict-seeking norms and a greater willingness to act (or refrain from acting) to maintain his in-group identity.

Behavioral traps often dictate individuals’ action within a group. One useful concept in this category is groupthink. Groupthink discourages critical thinking and produces poor, sometimes explosive decisions. Militant subgroups like MJOLNIR are more susceptible because they are highly cohesive, necessarily lack diversity and are insulated from broader debate. In-group “thought police” promote the illusion of unanimity by pruning members’ minds and words to reinforce group ideology. Thus, groupthink instills an irrational sense of invulnerability and inherent righteousness. This collective mind-state banishes self-doubt, relieves individual members from ethical or moral considerations, demonizes the out-group, and justifies immoral and unrealistic strategies.

The Lord’s Resistance Army, for example, believed that shea butter could make them bulletproof, that their leader spoke with the Holy Spirit, and that murder, rape, maiming, and enslavement were justified in their struggle to establish the Ten Commandments as law in Uganda. Individual victims of groupthink cannot acquire or process the information required to assess the merits of certain strategies versus their alternatives. Groups like MJOLNIR, therefore, typically self-destruct in pursuit of poorly conceived, unpremeditated, short-term objectives like the decision to kill a single Muslim to commemorate 9/11.

Groupthink may have prevented our hypothetical client, Mr. Anglo, from stopping his comrades from killing Al-Kharsa. It’s just as possible, however, that none of the MJOLNIR really wanted to kill him. The Abilene Paradox, another well-known behavioral trap, describes a breakdown in intra-group communication and agreement management. This scenario begins when we experience anxiety over the imagined consequences of our dissent. The immediate threats of our ostracization and loss of identity are more present in our minds — more real to us — than the long-term threat of self-destruction in pursuit of an futile course of action. We mistakenly believe that we alone object to a course of action, but we keep our misgivings secret, and the group acts counter to the majority preference. Like our client, the Watergate conspirators were all men of reportedly good character. They all insisted, after the fact, that they privately opposed the bugging of the Democratic National Committee, yet the decision to proceed was unanimous because each of the men felt that acquiescence was expected of them.

The defense team’s pretrial investigation should also decode MJOLNIR culture, ideology, and hierarchy and compare them to militant subgroups models. If Ugandan child soldiers can be “brainwashed” into committing atrocities and later forgiven, Mr. Anglo needs to be understood as a victim of group psychology. Safeguards against groupthink and the Abilene paradox include procedural norms for decision-making and a culture of debate in which leadership is open to criticism: your investigation would need to show the absence of both in MJOLNIR. We must demonstrate that Mr. Anglo was a low-level member and could not rock the boat for fear of expulsion. You should investigate MJOLNIR’s institutional culture and activities—did they sing hymns to the Blackwater martyrs, or screen 9/11 footage? What about MJOLNIR mythology? Was Mr. Anglo taught to think of Muslims as subhuman or demonic? Was he told that he had a divine mission, or that he was invincible? Lastly, we should investigate whether the victim was a member of a militant group himself, and whether that group was engaged in an escalating and transformative conflict cycle with MJOLNIR.

In this hypothetical example, the District Attorney’s office will attempt to paint the incident as a hate crime in order to maximize the possibility of harsh sentences for even the most tangentially-involved MJOLNIR members. The defense team’s strategy must be an equal and opposite one: to investigate and conceptualize the case in terms of group conflict psychology. Doing so will help build an argument for diminished personal liability on the part of Mr. Anglo and (if you do not prevail and your client is ultimately found guilty) to demonstrate why a lighter sentence is warranted.

by Kristofer Michaud

Kristofer is a practicing attorney, professional neutral, and writer on mediation and international law. He maintains a private practice in criminal and family law in upstate New York, while working toward his Masters in Dispute Resolution at Pepperdine School of Law in Malibu, California. Kristofer graduated from the B.C.L./LL.B combined program at the Law School of McGill University in Montreal, Canada.