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Tuesday, July 19, 2016

Black and Blue in Baltimore

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 trial.

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 the polity.

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.

Posted by Eric Miller on July 19, 2016 at 12:54 PM in Criminal Law, Deliberation and voices, Law and Politics, Legal Theory | Permalink

Comments

This is a very clever bit of misdirection. It starts with the police but then it says:

". . . 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."

Notice the consistent use of the feminine pronoun. Yet the officers in Baltimore were male, so Prof. Miller couldn't be referring to them. He has to be referring to someone else, someone who is female, who is in the public eye, and who is not being called to account for her wrongdoing. He doesn't mention her name.

Carelessness? I don't think so..


Posted by: AYY | Jul 20, 2016 2:29:26 AM

I don't understand this:

First, it seems to assume that the community has been "wronged" and that the remaining officers are "responsible." But what the prior trials have shown is that the assumption is false: the community has not been "wronged," and the officers are not "responsible," because the death was an accident.

Second, in light of the Self-incrimination clause, the deft doesn't have any duty to "respond" or provide "answers," much less a "rational accounting." the deft's lawyer can simply poke holes in the prosecution's case and then argue that BRD standard hasn't been met, without deft ever saying anything, much less providing proof of a single counter-narrative. And here, we know from the prior trials that the judge doesn't think the prosecution has enough evidence, so what's the point of repeating this farce, since the only thing the defts may have to answer for is their lawyers' fees (and I assume their union is paying for those).

Posted by: Hash | Jul 20, 2016 10:24:01 AM

"But what the prior trials have shown is that the assumption is false: the community has not been "wronged," and the officers are not "responsible," because the death was an accident."

The trials have shown no such thing. I suggest you go back and look at your notes regarding the burden and standards of proof in criminal trials.

Posted by: anon | Jul 20, 2016 11:28:30 AM

"officers in Baltimore were male"

First, Sgt. Alicia D. White was also charged.

Second, the OP in relevant part cites a work on punishment that makes general arguments. It isn't just a discussion of this one dispute.

Posted by: Joe | Jul 20, 2016 12:32:11 PM

Without directly responding to the original comment, I second anon on how criminal prosecutions are a special sort of thing here. Agree as well with the basic sentiments of the original post. Bottom line, prosecutions are important, but justice is more complicated.

Posted by: Joe | Jul 20, 2016 12:36:01 PM

Anon: you're of course correct that, technically, the prior trials have only shown that the prosecution cannot prove BRD that the death was more than an accident. But that very aspect of criminal trials -- i.e. the high burden of proof -- is one of the reasons (along with the self-incrimination clause) that the OP is wrong that the remaining defts should be prosecuted as some sort of "accounting" for the public. Criminal trials don't result in an accounting of what actually happened, but only whether the prosecution can prove what happened under a high standard and restricted access to probative evidence -- and the prior trials here show the prosecution cannot. And the OP's suggestion that the remaining officers should nevertheless be dragged through a futile trial is question-begging, because it assumes "responsibility" for a "wrong" to the community, even though the prior trials -- to the extent that they do serve as some sort of "accounting" -- undermines that assumption.

Posted by: Hash | Jul 20, 2016 1:16:19 PM

There were several wrongs here. (1) It's a reasonable inference that the medical examiner lied and allowed herself to be used as a tool in a series of political show trials. (2) Resources of the City of Baltimore were squandered in an out-of-court payoff to Freddie Gray's family. (3) The resources of the City of Baltimore were squandered in securing indictments and trials when the state's attorney had no case. There was no 'rough ride', something manifest in the security camera footage of the paddy wagon's travels. (4) Six city employees have been subject to the grossly abusive behavior of Marilyn Mosby. (5) Those who've had to finance the legal defense of the six city employees in question have had their coffers depleted by this whole meretricious business.

We might add a minor wrong: yet again a faculty member pens an argument in favor of an injustice in a wretched social signalling exercise.

Posted by: Art Deco | Jul 20, 2016 2:54:13 PM

Anon: you're of course correct that, technically, the prior trials have only shown that the prosecution cannot prove BRD that the death was more than an accident.

They cannot, in this case, because there is no evidence that it was anything but an accident.

Posted by: Art Deco | Jul 20, 2016 2:57:01 PM

"First, Sgt. Alicia D. White was also charged."

Okay, but it's a stretch to say the post is about her and not the men.

"Second, the OP in relevant part cites a work on punishment that makes general arguments. It isn't just a discussion of this one dispute."

Dunno about that. He deliberately used the feminine pronoun. Also the flaws in logic that the commenters have mentioned are flaws only if the argument is viewed in general terms. The criticisms do not hold much water if the post is viewed in connection with a specific well-known recent case. The author must certainly know that. So the only logical conclusion is that the author had a specific someone in mind.

The heading at the top of the blog says that this is supposed to be the place where intellectual honesty trumps partisanship. I am not unwilling to assume that the author of the post intended to abide by the spirit of the blog.

Posted by: AYY | Jul 21, 2016 3:59:44 AM

"Okay, but it's a stretch to say the post is about her and not the men."

Why? For instance, the first paragraph asks: "Should the Baltimore District Attorney prosecute the others?" Her trial is pending.

"He deliberately used the feminine pronoun."

The citation is to a general work (click the link) and the discussion is phrased in general terms ("believes wrongdoers" not "the" wrongdoers). As to feminine pronoun, yes -- repeatedly, people do that apparently as a corrective to the usual generic masculine. This concern of yours that he is slyly referring to someone else is to me a stretch.

"The criticisms do not hold much water if the post is viewed in connection with a specific well-known recent case. The author must certainly know that. So the only logical conclusion is that the author had a specific someone in mind."

He's concerned about Baltimore, but starts by making general arguments about "wrongdoers" etc. and the applying it to the specific situation. The usage of the feminine pronoun was part of the general argument part.

I think you are trying to force a square peg in a round hole here.

Posted by: Joe | Jul 21, 2016 10:30:33 AM

"The trials have shown no such thing. "

Yes, they have.

Posted by: Art Deco | Jul 22, 2016 11:50:51 AM

Did you forget that you already responded to that comment, conceding that I was correct, albeit only 'technically'? Or was one of the two comments made by the alleged sock puppet you are always complaining about?

Posted by: Anon | Jul 22, 2016 2:11:52 PM

Or was one of the two comments made by the alleged sock puppet you are always complaining about?

Oh, you're going to start appropriating my handle here as well? I suppose I should be amused that the faculty are chock a block with arrested-development cases.

Posted by: Art Deco | Jul 22, 2016 2:23:22 PM

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