The Moral Ambiguity of Public Prosecution.

• Author: Mendlow, Gabriel S.

ESSAY CONTENTS INTRODUCTION 1149 I. THE PROBLEM OF CRIMINAL STANDING 1153 II. THE RELATIONAL MODEL OF THE CRIMINAL PROCESS 1161 III. CRIMINAL LAW AS MORAL INVERSION 1165 IV. PUBLIC PROSECUTION AND MORAL REMAINDER 1171 CONCLUSION: WAYS FORWARD AND WAYS OUT 1182 INTRODUCTION

Even the shortest term of incarceration causes hardship and deprivation of a land impossible to justify in almost any nonpenal context. Perhaps for this reason, when we examine the moral foundations of state punishment, we tend to focus more on the punished than on the punisher--more on what makes someone liable to sanctions than on what entitles the state to inflict them. (1) We focus still less on what entitles the state to seek them, that is, to serve as criminal prosecutor. Yet the last question is just as important as the others, and it is just as difficult. For even if we grant that justice permits certain people to be punished by the state, it remains an open question whether the state, rather than another party, should enjoy the sole legal right to instigate the process that decides guilt and innocence.

Because that process involves an element of blaming and holding morally accountable, the question of what entitles the state to serve as prosecutor is in part a question about the state's moral standing to call supposed wrongdoers to account. An entity has the moral standing to call another to account when it has a presumptive moral entitlement to accuse the other of wrongdoing and to demand that the other answer the accusation by admitting or denying responsibility. This presumptive entitlement is not an indefeasible right: an entity with the standing to call another to account is not justified in doing so when the consequences would be very bad. At the same time, an entity need not have standing to call another to account in order to be justified in doing so. Although an entity that lacks standing is presumptively disentitled to call another to account, it may do so anyway if the consequences would be very good or the consequences of silence very bad. I will argue that this moral predicament is roughly that of the contemporary state.

In terms of efficacy and fairness, public prosecution is unquestionably superior to private prosecution. Yet the state may lack moral standing to call criminals to account for their interpersonal wrongs in a setting that excludes their human victims from formal participation. Classic crimes like theft and assault are in the first instance wrongs against individuals, not against the state or the polity that it represents. But our legal system denies crime victims the right to initiate or intervene in the criminal process, relegating victims to the roles of witness or bystander--even as the system treats prosecution as an institutional analog of the interpersonal processes of moral blame and accountability, which give pride of place to those most directly wronged. Public prosecution reigns supreme, with the state claiming primary and exclusive moral standing to call offenders to account for their interpersonal criminal wrongdoing. Although likely justified, all things considered, this legal arrangement upends the structures of accountability familiar from ordinary life, where the victims of wrongdoing enjoy moral standing of a caliber greater than that of most if not all third parties. By inverting these structures of accountability, the state that acts as exclusive public prosecutor exceeds its moral standing and incurs a debt to the crime victim, who retains a persisting moral complaint, even against a state that justifiably monopolizes the prosecution function.

The victim's persisting moral complaint is different from (although not entirely unrelated to) the familiar grievance that a criminal legal system that marginalizes or excludes crime victims risks injuring their dignity and impairing their prospects for vindication and reconciliation. (2) If the state showed crime victims greater solicitude and accommodated their interests and considered preferences more deliberately, the criminal process would dignify victims and enhance their wellbeing. But the state still would exceed its moral standing if it accommodated the victim as a matter of benevolent grace, rather than in recognition of the victim's moral prerogative.

The victim's prerogative to call a wrongdoer to account is a widely acknowledged but little examined aspect of relational morality. I will argue that it shares a foundation with other more theoretically familiar norms of partiality, self-preference, and exclusion, all of which reflect our status as individual persons, rather than as vectors for the promotion of impartial value. Grounded in the victim's status as an individual human person, the victim's moral prerogative continues to exert normative force even when justifiably supplanted by the considerations of equity and efficacy that favor public prosecution.

Like the victim's moral prerogative, the question whether the state has exclusive moral standing to call interpersonal criminal wrongdoers to account is a topic few theorists have acknowledged, let alone sought to address. In the first place, few theorists have devoted sustained attention to the ways our criminal legal system gives institutional form to the interpersonal processes of blame and moral accountability. Everyone recognizes the moral character of criminal punishment--that the state in a criminal case imposes morally condemnatory sanctions on a defendant it judges guilty of culpable wrongdoing. But only a few theorists have reflected at length on the nature and implications of the moral character of the criminal process. The most significant of these theorists is R.A. Duff, who has argued compellingly that the judgment of guilt in a criminal case comes only after the state has engaged the defendant in what the law represents (and the participants tend to understand) as a relational moral transaction. It is a transaction in which the state claims the moral standing to accuse the defendant of wrongdoing and to demand that the defendant answer the accusation by admitting or denying moral responsibility. Theorists who pay little heed to these relational aspects of the criminal process can be expected to neglect the question why the state has moral standing to bring that process fully under its control--why the state has standing to demand that criminals answer to it for wrongs they have perpetrated on others. If Duff has done more than other theorists to expound a relational model of the criminal process, (3) it is no coincidence that Duff also has done more than most other theorists to explain why calling interpersonal wrongdoers to account is properly the business of the state. (4) Duff nevertheless leaves a critical question unresolved, a question I will call the problem of criminal standing--namely, whether the state's moral standing to call interpersonal criminal wrongdoers to account is truly exclusive. (5)

The immediate task ahead (6) will be to formulate the problem of criminal standing to a first approximation--to elucidate the concept of moral standing in general, to explain in broad terms why exclusive moral standing to call interpersonal wrongdoers to account may elude the state, and to emphasize how standing differs from all-things-considered justification. From this preliminary discussion, it will emerge that the problem of criminal standing flows primarily from two sources: one institutional, the other moral. The institutional source (7) is a legal system built on the relational model of the criminal process, which gives legal form to the interpersonal processes of blame and accountability. The moral source (8) is the victim-centered normative structure familiar from everyday life that subordinates the standing of third parties to the standing of victims. The state flouts this structure and frustrates victims' superordinate moral standing when it combines a relational model of the criminal process with a system of exclusive public prosecution. This legal practice leaves the victim with an unsatisfied moral claim.

As we will see, (9) the victim's unsatisfied claim cries out for partial satisfaction, even though the overall balance of reasons weighs decisively against vindicating the claim in full. Although reasons of efficacy and fairness justify the state in arrogating an exclusive legal right to call interpersonal criminal wrongdoers to account, the countervailing considerations that undergird a victim's superordinate moral standing continue to exert normative force even when overridden. They survive as reasons for us to surrender a degree of procedural control to crime victims within a system of public prosecution, much the way many civilian jurisdictions do. Near the end, we will briefly weigh these institutional innovations against several other responses to the moral ambiguity of public prosecution available to a society committed both to a victim-centered conception of moral standing and to a criminal process that calls offenders to account for their interpersonal wrongs. (10) One theoretical possibility is to punish all offenders much less severely than our system currently does, meting out punishments no harsher than that which a third party like the state has standing to seek. Another theoretical possibility is to replace our existing criminal legal system with a bifurcated procedure that divides adjudication sharply from sanctioning, restricting moral blame and accountability to the adjudicatory stage and treating the sanctioning stage as a clinical exercise in crime reduction.

The purpose of this Essay is not to set forth a brief for a particular policy, however. It is to explain a neglected problem about the moral foundations of prosecution and to identify institutional changes that would solve or mitigate that problem. If none of these changes is ultimately feasible and morally attractive as an actual policy, then the argument of...