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George Zimmerman and the Nature of Criminal Justice

11:33 AM, Jul 17, 2013 • By JONATHAN V. LAST
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We're way past overload on Trayvon Martin-George Zimmerman commentary, but there is a tiny tributary of the story that has been largely overlooked. And it's worth a moment because it points to a larger problem regarding both the state and the public.

The first is the modus operandi of the Florida prosecutors. I understand that overcharging may be routine in the criminal justice system. It's partly what fuels the plea bargain system, and that's what keeps the entire machine moving rather than sputtering to a broken halt. But that doesn't make it right. If the public is to have faith in the system, we need to believe that prosecutors are acting in the interests of justice. Not looking for leverage.

So how should prosecutors act? For starters, they should understand that their job is not to avenge the victim, or seek redress on their behalf. Here's Joseph Bottum with an excellent explanation as to why a fixation on victims is bad legal catechesis:

All political theories note that ancient legal systems began with the outlawing of private revenge, but the state does not thereby become a sort of hired agent or substitute avenger. That is what a theory of civil harms is for, and such torts are addressed not in criminal but civil courts, where the plaintiff, not the government, collects the monetary damages. Genuine crimes, in a modern setting, are instead committed against society and its laws—just as, in medieval England, all crimes were crimes against the king. In strict legal theory, the victims are incidental; the entire body politic is injured by a crime, and the social disorder of that crime is what a government's criminal-justice system must address.

The prosecutor's job, then, is to act for the rest of society in seeking justice for social disorder. And properly understood, this job has two parts. She seeks redress for the laws that were broken. And she safeguards the rights of the citizenry—all of it, even the accused—against a misuse of power by the state. These duties might sometimes be in tension, but they are always of equal importance.

When a prosecutor overcharges, they fail in that second part of their job. It strains credulity to believe that the Florida prosecutor wasn't overcharging George Zimmerman when she sought to convict him of second-degree murder. And we care about this not because we care about Zimmerman, but because the power of the state is so awesome that it must be wielded with the utmost care.

In an important sense, both Trayvon Martin and George Zimmerman are somewhat beside the point. The actions of the prosecution in this case suggest that whatever their fluency with the law, they misunderstand legal philosophy.

Not that the public has been much better. Following the verdict, defense attorney Brian Tannenbaum collected some of the outrage from Twitter and it wasn't incendiary—it was terrifyingly ignorant. For example:

@A1Black_: RT @_surlySprite: They need to APPEAL THIS VERDICT AND GO TO THE SUPREME COURT !!! Don't Stop until Justice is Served for T… @34thwarrior: Trayvon parents should appeal this to the next level @_CharNae: Trayvon Martin parents better appeal this case! I would NOT let nobody off for killing my child! HELL TF NO! @_shVn: Trayvon's parents can appeal this verdict and try to get justice again! Lets pray they do and it turns out right this time! Rip

Achieving justice in a fallen world is, if not a fool's errand, then at the very least, a task of incomprehensible difficulty. As such, our criminal justice system is highly imperfect, even in the best of times.

The Zimmerman-Martin case suggests that when both the state and the public lose sight of the ideas that animate the system, it is more imperfect than it should be.

Which should worry all of us.

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