Originally appeared on Prawfsblawg
Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore
District Attorney prosecute the others? More generally, is there a duty
to prosecute public officials, even if there is only a remote chance of
success on the merits?
I think the work of Antony Duff might prove helpful here.
He believes wrongdoers are a specific category of people identified by a
duty that they are under: to answer to those they have wronged for
their unjustified and harmful act. The duty to answer is, so Duff
thinks, a feature of responsibility: wronging someone puts the wrongdoer
in a relationship with their victim. The victim has the duty (not just
the right, but—Duff believes—the duty) to call the wrongdoer to account;
and the wrongdoer owes the victim a response: the wrongdoer has a duty
to account for her wrongdoing by giving reasons to justify, excuse, or
accept the blame for her wrongdoing, and then take action to expiate her
wrong. Owing a response places the onus on the wrongdoer to come
forward with her account; morally, she cannot just stand pat and hope
no-one notices the wrong, or her responsibility for it.
Duff draws a line between ordinary moral wrongs and extraordinary
criminal wrongs. What makes criminal wrongs so extraordinary, he thinks,
is that they are wrongs that the public ought to take an interest in.
Failing to buy a beer when it is your round is a wrong, but unless I’m
one of the folks you are drinking beer with, it’s none of my business
that you are stingy and selfish. Engaging in an act of domestic violence
is a wrong, but even though it may occur in a private place, it is a
wrong that affects the community as a whole, and which the public has an
interest in seeing prosecuted. Moreover, the community enacts criminal
laws to express the fact that it is the public’s business. People whose
wrongs affect the community are not just ordinary wrongdoers; they are
criminal offenders and have a duty to come forward to answer the
community, to whom they are accountable, in a public forum, such as a
Duff’s special significance as a theorist of punishment and criminal responsibility is (as Malcolm Thorburn points out)
in identifying the trial (rather than the punishment) as the focal
point of the criminal justice system. The trial is centerpiece of the
accountability because it is a communicative forum. It is there, in
public, that the offender answers to the community and (if the law
provides) suffers public censure. Responsibility for wrongdoing demands
(for Duff) that the offender answer to someone; responsibility for
criminal activity requires an offender answer to the public through the
trial process. The result of the trial (conviction or acquittal) is
secondary to calling the offender to account.
Duff’s view suggests that whenever the community plausibly suspects
that someone is a wrongdoer, then both the community and the wrongdoer
have a positive duty discuss it: to demand and provide a rational
accounting of the wrong. Where the wrong is one that touches the
community as a whole, then the proper forum for such an accounting is
the criminal trial.
Duff’s argument about communities and the criminal law is quite
compelling. At the very least, it provides an important moral basis for
criminal law: that it is the moral law of the public, the community; not
just a set of wrongs that the politicians decide to sanction with an
especially harsh or significant punishment. The wrongs of the criminal
law are extraordinary ones which affect the community as a community.
And when the wrongs are those engaged in by public officials, then the
community and the state has an especial interest in ensuring that the
official publicly accounting for those wrongs. (Duff has some radical
and interesting things to say on this, which would take too much time
here. See his Punishment, Communication, and Community at 183-17; see also Ekow Yankah, Legal Vices and Civic Virtues).
[As a side note, Duff, Yankah, and Thorburn are not just theorists of
criminal law; what they have to say about criminal procedure, and in
particular its relation to political theory, deserves much more
attention in the world of mainstream American criminal procedure than
they are currently receiving).
So trying the other Baltimore officers involved in the Freddie Gray
killing is not a waste of time: it is an important way to treat the
community as wronged and the officers as responsible—as individuals who
are capable of being held responsible and so have a duty to answer in a
public forum. It is not enough: if there was a wrong, then the officers
in addition deserve public censure and should make some form of
reconciliatory act to the public and the victims—the Freddie Gray
family. If the court fails to acknowledge the officers’ wrong, they
still remain on the hook as wrongdoers if not as offenders. But now the
legal system too is on the hook, for failing to provide an adequate
forum, not only for accountability, but also for censure and expiation.
Without these further possibilities, the community—the public, the
people—are inadequately valued by the state, and will continue to feel
that they have been denied the justice they deserve as equal members of
One final thought: in her excellent book, Prosecuting Domestic Violence,
Michelle Madden Dempsey also discusses the role of the prosecutor in
constituting the community. While she and Duff have important
differences, Dempsey's discussion of the ways in which the prosecutor
constitutes the community on behalf of the state, and so the
prosecutor's duties to the community as a public official, is essential
reading for anyone interested in this topic. I hope to say a little more
about Dempsey's work in a later post.