THE (IMMEDIATE) FUTURE OF PROSECUTION.
Introduction 1139 I. Thinking about Punishment 1140 II. Combatting Illegitimate Domination 1147 Conclusion 1151 INTRODUCTION
It seems a bit perverse to get too idealistic when considering "the future of prosecution." After all, unless one wants to go full critique, and dismiss all crimes as purely social constructions, the precondition of the prosecution function is the highly suboptimal readiness of humans to inflict suffering on, or take grievous advantage of, others. Moreover, even if one treats crime construction and criminal acts themselves as exogenous to the prosecution function, optimality will be tragically bounded. One can hardly be idealistic about the decision of a prosecutor forced to determine the fate of a young Black man whose life has been marked by trauma, inequality, structural racism, and limited opportunity, but who has also robbed, shot, or killed someone else (who will often be another young Black man whose life has been similarly marked). (1) That society, at some level, failed both seems pretty clear. (2) Decent thinkers with any hope of social utility should push for reforms, or perhaps radical change, and a resource commitment commensurate with government's historical contribution to structural racism and inequality. (3) But the line prosecutor, as guided by the chief prosecutor (who one hopes gives clear guidance in such matters), has to figure out what happens next, right now, exercising the authority of a compromised state in order to, as philosopher Tommie Shelby puts it, "protect people from unjustified violence and illegitimate restrictions on their liberty." (4)
THINKING ABOUT PUNISHMENT
Perhaps as she gets jaded, the prosecutor might be tempted to think of herself as merely a "coder"--one who processes, and to some extent gathers, information, gives it a provisional legal code, and drives an adjudicative process toward an authoritative coding. That is a regrettably impoverished understanding of her job, however, which at its core turns law into action and narrates the circumstances under which a defendant is to be held to account. (5) This is a very specific kind of accountability, however, and she cannot be allowed to forget that the process is ultimately about whether we should consciously inflict pain on others. For what else is punishment but the legally (and perhaps morally) authorized and justified infliction of pain or, at best, the radical and harsh deprivation of liberty.
Moreover, she has to act in a tragically impoverished institutional context. Even were she to put aside retributive impulses and knotty issues of moral desert and--committed to "criminal law minimalism" (6)--consider only incapacitation, deterrence (both specific and general) and, dare I say, rehabilitation, she will generally have but two options: either drop the case or navigate towards the incarceration of the offender in a facility more likely to reinforce what Tommie Shelby called "gangster-hustler ethics" (7) than to prepare the young man for re-entry.
In theory, and increasingly in practice, diversion and other alternatives to incarceration that avoid this stark binary have been developed, and prosecutors at all levels should be pressed to push in this direction (to the extent the programs are effective). (8) Yet the slowness of progress in that regard suggests that, at least for now and perhaps for some time, our line prosecutor will bump against the limits of such programs, and face the binary. (9)
One hopes she, or at least her bosses, can use their political capital to press for a richer set of options: more alternatives to incarceration, more humane correctional institutions, and even a more just society. (10) Only the most benighted prosecutor thinks criminal charges are the fundamental solution to any social (or political) problem. Full-throated communication of that basic fact would surely enrich policy conversations that too easily jump to criminal enforcement." To be sure, actual prosecutorial contributions to political discourse about criminal justice matters have all too frequently concentrated on promoting prosecutorial discretion or watering down defendant protections. (12) And there is a very real risk that a chief prosecutor's desire to protect her own budget will keep her from lobbying for expenditures elsewhere. Yet the office that pushes past short-sighted institutional self-interest and helps mobilize support for programs targeting structural disadvantage and making prison a way-station toward re-entry will not only usefully enrich political discourse but might even narrow the chasm separating it from the communities bearing the largest costs of criminal enforcement. Communities of color alienated, even repelled, by constant assurances that the only path to public safety lies exclusively through harsh sentences and aggressive police tactics, (13) might well be more inclined to work with prosecutors who reject such impoverished logic. Whatever their ideological commitments, prosecutors as attentive to public safety as they are to this impoverishment have a public status that allows them to play Nixon going to China. (14)
Ofcourse, the odds of political success along the latter lines are long--at least in the current (and foreseeable) fiscal climate. Early childhood interventions, high-quality preschool programs, and other social programs show considerable promise in reducing the most serious crime, with their benefits justifying their costs (for those that require such justification). (15) But as legal scholars Christopher Lewis and Adaner Usmani have noted:
[T]he same thing that makes these hyper-targeted social programs efficient also makes it politically infeasible for governments to fund them at scale. The more targeted the beneficiaries, the more certain we can be that introducing these programs will provoke the resentment of the near-poor and middle-class. Hence, the efficiency-feasibility paradox: untargeted social policy is politically feasible but inefficient for crime control, while hyper-targeted social policy can be efficient but is infeasible. (16) Perhaps this assessment is unduly pessimistic. For the foreseeable future, however, absent only-dreamed-about societal change, "carceral logic" (17) will be an inescapable feature of a prosecutor's day-to-day work (though hopefully not a chief prosecutor's policy advocacy).
How might the future look to one who combines hope with pragmatism? One could fight the hypothetical and note--with strong empirical support --that most criminal cases are not robberies, shootings or murders. Many of those cases--particularly those misdemeanor charges generated by order maintenance policing--might be more effectively and more fairly dealt with outside the criminal process. (18)
Line drawing between what conduct ought to be tolerated and what merits state action; between what should be persuaded civilly and what criminally; and between which ostensibly criminal cases are suited for diversion, restorative justice, or similar non-punitive treatment can be hard. I think talk of "abolition" and "defunding" horribly misplaced--since constitutional policing can be extremely expensive, and adjudicative fairness and reliability only enhanced by better funding of defense lawyers and prosecutors. Yet I am still sure that the domain of criminal law and the use of incarceration should be dramatically curtailed. (19) Certainly this curtailment focuses on misdemeanors--particularly given evidence that a presumption of non-prosecution for nonviolent misdemeanor offenses decreases the likelihood of subsequent criminal justice involvement for arrestees. (20) But not exclusively, as I suspect even the felony docket could use considerable pruning.
Yet, what about the young man we started with, who like more than half of those in state prisons, (21) has committed a "violent offense"? To be sure, that term is...
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