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March 4, 2014

"The Pedagogical Prosecutor"

The title of this post is the title of this interesting new article by Nirej Sekhon now available via SSRN. Here is the abstract:

Scholarship on prosecutorial discretion is almost entirely preoccupied with crafting regulations that promote prosecutorial accountability.  Accountability, however, is a two-way street. Existing scholarship does not recognize prosecutors' unique capacity to hold legislators and citizens accountable for their preferences, biases, and blind spots.  Drawing on political theory, this essay proposes a novel framework for conceptualizing the prosecutor's role in a pluralist, democratic society.

The choice to prosecute or decline a case can produce significant social and political meaning: e.g., affirming the value of a victim's life, validating a community's sense of loss, or highlighting an offender's depravity.  Hate-crime and "stand-your-ground" laws illustrate prosecutors' broad discretionary power to generate social and political meaning. These laws were often controversial when enacted.  Enactment, however, did not exhaust the basis for controversy. Rather, vague statutory language simply left it to prosecutors to decide when and how the laws should apply.

The furor that erupted after George Zimmerman shot Trayvon Martin reveals how fraught those choices can be.  While Zimmerman's acquittal might appear to vindicate prosecutors' initial choice to decline the case, that view is incorrect.  I argue that prosecutors should use their expressive power towards pedagogical ends; prosecuting Zimmerman was consistent with that ideal, the acquittal notwithstanding.  Behaving pedagogically means actively promoting political dialogue amongst legislators and citizens.  This ideal values public airing over conviction maximization. I conclude by identifying some of the obligations that attend the pedagogical ideal and steps that might encourage prosecutors to embrace it.  Doing so will not just promote better criminal justice, but a healthier democracy.

March 4, 2014 at 10:05 AM | Permalink


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"Behaving pedagogically means [the prosecutor's] actively promoting political dialogue amongst legislators and citizens."

Having been an AUSA for a long time, I find this statement frightening, and so should the defense bar. If the prosecutor wants to "promote political dialogue," fine, write a letter to the editor or go to a town hall.

But such promotion is an utterly illegitimate reason to prosecute an individual defendant, George Zimmerman or anyone else. You prosecute if you have a solid case for believing that Mr. X violated Statute Y, and that you can prove it beyond a reasonable doubt, not because you want to "promote" a "dialogue."

Example: You do not, in order to "promote" a "dialogue" about the dangers of Jihad or Sharia law, prosecute an Islamic extremist for doing something that, under the same facts, you would not prosecute a Presbyterian for doing. That has a well-known name: bigotry.

You prosecute the Islamic extremist when, for example, he tries to blow up an airplane, and then you prosecute him to the hilt (and you don't let his defense lawyer turn the trial into a "discussion" of The Numerous Ways in Which America Stinks).

The idea that a prosecutor should use the power of the state, and specifically the power to indict, to "stimulate" what he thinks is a "useful discussion" is beyond appalling.

Posted by: Bill Otis | Mar 4, 2014 1:33:38 PM

I thought pursuing a case when the prosecutor knows there is not enough evidence to convict is one of few instances where immunity is lost.

And beside that, pursuing a criminal case has to be one of the most expensive ways imaginable of fostering civic dialog regardless of the end result of that case.

Posted by: Soronel Haetir | Mar 4, 2014 1:51:12 PM

"Doing so will not just promote better criminal justice, but a healthier democracy."

From the Florida Rules of Conduct:

"Rule 4-8.4 Misconduct

A lawyer shall not:

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;"

At the very least, any motivation involving interests and aims outside the facts of the crime should be openly disclosed, and a disqualification of prosecutor hearing should be conducted.

Posted by: Supremacy Claus | Mar 4, 2014 2:50:09 PM

Sounds a lot like "jury nullification"
Seems to me that if the defense can't argue jury nullification then maybe the prosecution shouldn't be able to argue to the jury that the law is more elastic than the fact pattern presented in a specific case.

Posted by: ? | Mar 4, 2014 5:22:51 PM

Most of the prosecutors that I know in my state agree with the general standards governing the prosecutorial function: that the exercise of charging and plea bargaining discretion is a combination of the strength of the evidence (a conviction is more likely than not to charge, additional calculus for plea bargaining) and executive discretion on the allocation of scarce resources (prosecutor and court time).

Is there a political component in the setting of priorities? Probably. A prosecutor, especially an elected prosecutor, should reflect the views of his local community as to what cases merit the time and effort which includes maybe putting some extra effort into a high profile case that will send a message of no tolerance for criminal conduct. Sometimes that means taking into consideration the messages being sent by legislators as to what crimes they want taken more seriously than in the past (e.g. driving while intoxicated). And on rare occasions that means serving as a test case to flush out the meaning of a new law (when you think you have both a legal argument for a narrow or broad view and the facts that fit within the proposed interpretation). It does not, however, mean filing a dead loser and forcing a defendant to spend money just to make a point about how screwed up the law is.

Posted by: tmm | Mar 4, 2014 6:30:29 PM

Always attack the feminist lawyer prosecutoir. Seek their personal destruction. Start with total e-discovery of the lawyer enemy. Organize a boycott to drive them from the state. Demonize and isolate them. The enemy is working for a criminal cult enterprise that is threatening the very existence of our civilization. They allow 90% of violent crime to go unanswered, actually protecting the criminal from public self help. When we say protect the criminal, we mean protect their criminal dependent government make work jobs. All their claims of piety are in bad faith. These PC feminists allowed 9/11. None was even reprimanded in a warning letter.

Posted by: Supremacy Claus | Mar 5, 2014 2:03:50 AM

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