PROSECUTION AND POLARIZATION.

• Author: Koh, Steven Arrigg

Introduction 1118 I. The Prosecution-Polarization Dynamic 1120 A. Defining Polarization 1120 B. Three Stages of Polarization 1123 II. Theorizing Social Meaning and Prosecution 1127 III. Justifying Democratization and Decriminalization 1132 Conclusion 1137 INTRODUCTION

Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration and policing, (1) while the international community now weighs prosecution of war crimes in Ukraine. (2) Second, we live in a time of polarization, both at home and abroad. Cultural and political division is higher than in recent decades domestically and in foreign jurisdictions, while the international community debates fragmentation in a multipolar world. (3)

This contribution to the Fordham Urban Law Journal's "Future of Prosecution" Symposium asks: what does it mean to prosecute in a time of polarization? This contribution describes a prosecution-polarization dynamic, wherein criminal cases may foster polarization domestically and internationally.

The prosecution-polarization dynamic complicates scholars' notion that criminal justice should do reparative work. Domestically, some scholars argue that criminal justice should restore harmed victims or reconstruct torn community norms after a moral breach. Internationally, other scholars contend that criminal tribunals should effect transitional justice, promoting accountability for atrocity crimes--genocide, crimes against humanity, and war crimes--in order to heal post-conflict societies. And yet, often, indictment and prosecution have the opposite effect, fostering polarization and alienation. In making this argument, this symposium contribution will briefly survey theories of philosophy, psychology, and sociology that show the complexity of social meaning. Prescriptively, it will argue that this dynamic should caution domestic and international institutional actors to be more circumspect about criminal justice as a policy modality.

I have previously explored aspects of this phenomenon in my scholarship on foreign affairs prosecutions and the criminalization of foreign relations. Specifically, I have argued that the autonomous action of U.S. prosecutors may trigger foreign relations consequences when such cases implicate foreign countries. (4) But such unintended consequences are not restricted to the cross-border context; they also apply domestically and internationally. (5) Meanwhile, in the domestic context, scholars such as Monica C. Bell and Joshua Kleinfeld have emphasized anomie and alienation in their theories of legal estrangement and reconstructivism, (6) while Jamal Greene has analogously shown how the structure of constitutional litigation undesirably sets up cycles of winners and losers. (7) And international criminal justice scholars moot expressivism as a theory of international criminal justice. (8) This symposium contribution expands on such insights to consider how the nature and structure of criminal prosecution may foster polarization at home and abroad.

Part I defines polarization and describes the prosecution-polarization dynamic across three stages. (9) Part II briefly surveys how philosophy, psychology, and sociology explain the social meaning animating this phenomenon. (10) Part III considers how such consequence bolsters arguments for democratization and decriminalization. (11)

Before proceeding further, I wish to clarify two points. First, causation is difficult to pinpoint precisely. Polarization may drive criminal justice, criminal justice may foster polarization, and they may often function independently as sociolegal phenomena. As such, I recognize three conceptualizations of law and culture: one in which culture creates law, one in which law influences culture, and one in which law functions as its own cultural system. (12) This symposium contribution allows for all three possibilities, recognizing the necessity of empirical work in this space. Second, this symposium contribution purposely engages in macroscopic, comparative analysis of three tiers of criminal justice: domestic, transnational, and international. Each system is distinct, and thus an innumerable number of differences can and should add analytical subtlety. But it is conceptually useful to consider--across many contexts--the nature and limits of a penal system of retrospective accountability backed by deprivation of liberty.

1. THE PROSECUTION-POLARIZATION DYNAMIC

   As an initial matter, this Part will briefly define polarization and then describe, in broad strokes, the prosecution-polarization dynamic, or process by which prosecution may foster polarization.

   1. Defining Polarization

      What do I mean by polarization? Definitions vary across literatures. (13) For present purposes, we may conceive of polarization as "the act of dividing something, especially something that contains different people or opinions, into two completely opposing groups." (14) Within this definition lie three critical concepts. First, division of groups of people. Second, relational opposition, wherein the groups assume an adversarial posture vis-a-vis one another. Third, inherent in such opposition is the solidarity felt within each particular group. In other words, polarization is characterized by a "push-pull" dynamic. (15)

      Polarization is at historically high levels. Differing cultural views have become increasingly important in shaping Americans' party preferences and political identities. Politics is not "a vehicle through which we might resolve divisive cultural issues," but is rather fueled by culture wars. (16) Politically, both elected Democrats and Republicans are more ideologically cohesive: only about two dozen moderate Democrats and Republicans are left on Capitol Hill; by contrast, in 1971-72, more than 160 were moderate. (17) And both parties have moved further away from the ideological center since the early 1970s. (18) Media fragmentation may be a factor in such polarization. While causation is difficult to pinpoint precisely, the proliferation of print, cable, online, and social media has coincided with a rise in diverse--and often, contradictory--viewpoints about virtually every aspect of American life. (19) In 2023, many online content creators literally wait for the next big news event before immediately providing an opinion-oriented take from their partisan vantage point. From COVID-19 vaccines to the war in Ukraine and the upcoming 2024 election, the instantaneous generation of fragmented narratives is often dizzying. This media environment has also engulfed public opinion on legal topics, such as the nature of Constitutional protections and the legitimacy of the U.S. Supreme Court. New York University's Center for Business and Human Rights--in a review of over 50 social science studies and interviews with over 40 academics, policy experts, activists, and current and former industry people--suggested that platforms like Facebook, YouTube, and Twitter exacerbate political polarization. (20) However, it also concluded that such platforms are not the root cause of such polarization. (21)

      In foreign and international fora, we may observe distinct but overlapping discourses. Countries such as South Korea, Brazil, and the United Kingdom face internal division over domestic and international policy. (22) Meanwhile, the international legal community is facing Third World scholarly critiques at the same time it grapples with populism and multipolar fragmentation. Regarding criminal justice specifically, various countries debate the nature and function of criminal justice, with countries varying in their commitment to and capacity for rule of law. (23) And the international community is engaging in debates regarding the efficacy of prosecution as an effective sanction, particularly at a time of both Third World critiques and global populism. (24) In this context, some scholars have advanced an expressivist conceptualization of international criminal justice, emphasizing its communicative effects. (25)

   2. Three Stages of Polarization

      How might criminal prosecution exacerbate polarization? Let us describe this problem, playing out in a prosecution-polarization dynamic through three stages. (26)

      First, criminal justice actors affirmatively decide to initiate a criminal case. At the state and local levels, charging decisions are highly ad hoc. Prosecutors respond in real time to facts as they emerge on the ground. In the vast majority of cases, the issue is really about police, not prosecutors. (27) Meanwhile, U.S. Attorneys' Offices have more discretion given complementary federal jurisdiction. (28) Federal prosecutors are similarly responsive to federal law enforcement exigencies, though more often federal investigations involve longer-term and larger-scale investigations. As Dan Richman has described, a "negotiated boundary" exists between federal criminal law enforcers and state/local law enforcement, dictated by federal jurisdiction, the agendas of presidential administrations, and pressures from local authorities. (29) The U.S. Attorneys' Manual provides that a federal prosecutor should indict if (1) she believes that the person's conduct constitutes a federal offense, (2) the admissible evidence is sufficient to convict, and (3) the prosecution serves a substantial federal interest. (30) Internationally, prosecutors initiate cases in rare, limited circumstances. As a threshold matter, the international community must have decided to establish an international tribunal. Then, international investigators must become satisfied that they can prove their case beyond a reasonable doubt in an international forum. Finally, the various levers of jurisdiction and admissibility must be satisfied, with cases being diverted to local jurisdictions in cases where...