Leniency as a miscarriage of race and gender justice.

AuthorGruber, Aya
PositionIntroduction to III. Some Cautions Against Viewing Leniency as a Miscarriage of Justice, p. 1571-1600

INTRODUCTION

What is a "miscarriage of justice"? One might think of many ways in which the wheels of criminal justice jump the tracks. The criminal system might permit the conviction of an innocent or the admission of a coerced confession. The system might permit bribery and influence of state actors. The system might tolerate the mistreatment of victims, witnesses, or defendants in the process of adjudication. This particular issue of the Albany Law Review focuses on a specific undesirable situation, namely one in which a "guilty" person "goes free." Typically, victims' rights activists and conservatives concerned with crime control are the most vocally opposed to leniency and defendants benefitting from legal "technicalities." (1) There is, however, a set of cases in which the lenient treatment of criminal defendants engenders critique from progressive scholars--scholars whose sympathies otherwise lie with defendants' rights. In such cases, state actors and jurors treat apparently culpable defendants leniently, not to remedy police misconduct, but because of the minority status of the victim. (2) Progressive scholars contend that defendants who offend against women, racial minorities, and gays in ways that reflect social and cultural hierarchies are the beneficiaries of discriminatory mercy from biased legal actors. (3) Examples include the state's failure to take domestic violence seriously, (4) the various barriers to successful rape prosecution, (5) and male defendants' disproportionately successful use of the provocation defense in intimate homicide, (6) and "gay-panic" cases. (7)

The liberal position on discriminatory leniency is poignantly exemplified by the progressive outcry against Florida's stand-your-ground law in the wake of Trayvon Martin's death. (8) Publicity of this now high-profile case began in the social network, and online outrage propelled it into national headlines. (9) It soon became politically polarized. Liberals condemn the shooter, George Zimmerman, for acting on racialized suspicion, the Sanford police for declining to arrest, (10) and the Florida law for permitting a person to kill even when safe retreat is possible. (11) Conservatives, by contrast, tend to side with Zimmerman, a local neighborhood watch leader, denying that he acted on the basis of race, and supporting the law as permitting law-abiding citizens to defend themselves. (12) In a sense, the world has been turned topsy-turvy. Progressive activists and scholars call for the application of police power to Zimmerman and the elimination of a defense-friendly law for all future murder defendants. (13) Conservative commentators lobby for prosecutorial restraint and the scrupulous honoring of a murder defendant's legal rights. (14) What could move the tough-on-crime party to support leniency? What could move state authority skeptics to champion broadening prosecutorial power?

For the past several decades public discussion of the penal system has centered on spectacular crimes in which evil defendants commit grievous harms against paradigmatically innocent and vulnerable victims. (15) This framework permits conservative commentators to embrace ever-harsher criminal laws while exempting certain offenders like Zimmerman from the punitive paradigm on the grounds that he is not a "real" criminal and Trayvon is not a "real" victim. Liberal criminal law scholars, by contrast, generally resist the lure of spectacular retributive rhetoric and its punitive consequence and take a global view of the importance of protecting individuals from state penal authority. (16) Progressive theorists routinely criticize mass incarceration, the one-way upward ratchet of U.S. sentencing policy, and the eroding of defendants' civil liberties. (17) Nevertheless, liberals call for strict prosecution in Trayvon Martin's case, rather than applauding the Sanford police for scrupulously respecting Zimmerman's rights under Florida law. (18) This is because the police's unusually restrained behavior had less to do with any civil libertarian desire to protect Zimmerman's freedom than with the police's overt racism and internalization of the black-as-criminal stereotype (or at least understanding of Zimmerman's stereotypical thinking). Trayvon is thus a far more likely poster child for police racism toward black victims than police moderation toward suspects.

There is little doubt that Zimmerman's suspicion of Trayvon Martin was deeply influenced by racist and racialist norms, just as individual batterers' acts of domestic violence are enabled by patriarchal values and institutional structures. (19) The Sanford police's decision to afford lenient treatment to Zimmerman was also likely influenced by race, (20) just as the failure to arrest batterers can reflect police officers' chauvinist ideology. (21) In these types of cases, the actions of the defendants and the state responses are undoubtedly miscarriages of racial and gender justice with terrible consequences. Of course, the natural reaction is to seek to deter racialized and gendered crimes and prevent biased state actors from acting leniently by insisting on aggressive prosecution. The question is whether the prosecutorial reaction advances progressive values overall.

This article argues that liberals' focus on leniency in cases of extraordinary violence against minorities and proposals for greater prosecution might not, in the end, further the anti-subordination agenda. Emphasizing the deviant immorality of racist and sexist criminals might actually subvert rather than foster a critique of social hierarchy.. Moreover, ratcheting-up penal authority to address discriminatory leniency may have the practical effect of enhancing rather than undermining racial subordination. Furthermore, using narrative to promote identification with victims at the expense of defendants is fraught with perils to racial and gender justice.

Part I of this article describes the general political divide on penal leniency and demonstrates how crime-control proponents exempt certain offenders and offenses from their punitive prescriptions. Part II examines race and gender theorists' critique of these exemptions and their law reform proposals to address "underenforcement" in minority-victim cases. Part III discusses the danger inherent in both progressives' choice to focus on lenity as the problem, and their severity-boosting solutions.

  1. LENIENCY AS A MISCARRIAGE OF JUSTICE

    There are both analytic problems with and normative assumptions in the claim that the "guilty going free" constitutes a miscarriage of justice. Logically, it is impossible for a legally guilty person to be exonerated. A legally guilty person is, by definition, one who has been convicted. (22) Perhaps a legally guilty person might "go free," if she escapes after conviction or is given a very short probationary sentence. However, that is not what most people think about when they think about the guilty going free. The problem with the guilty going free more likely refers to situations in which the person who in fact "did it" fails to be arrested, has their case dismissed, or is acquitted. (23) Even so, the concept that a factually responsible person avoiding conviction is always unjust carries a tough-on-crime valence because it assumes that punishing the culpable should be the sole meter of justice.

    Even the most ardent law enforcement supporter would be hard pressed to argue that a person who turns out to be guilty should be convicted when the state possesses little or no evidence. If subjecting the innocent to punishment is also a situation meriting concern, then the system must at some level strike balance between condemning the factually responsible and sparing the factually innocent. (24) Moreover, procedural rules that protect other important values, like judicial integrity and individual liberty, increase the chances that some factually guilty persons will avoid punishment. (25) Thus, it may be helpful to rephrase the problem as the system permitting certain persons against whom there is some apparent threshold amount of evidence to avoid punishment, without a good (or good enough) reason for doing so.

    The primary debate concerns what constitutes a good reason for increasing the probability of exonerating the factually guilty. Herbert Packer has famously articulated two polar models of criminal procedure: the Crime Control Model and the Due Process Model. (26) Jurists and scholars who adhere to the Crime Control Model seek to cast a wider criminal enforcement net...

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