Unsteady Aim of the Law
Terry H. Schwadron
Oct. 30, 2021
The cup of justice is overrunning the brim again, this time over what constitutes a crime for prosecution and what simply is wrong but doesn’t rise to criminal charges.
Public calls for criminal charges are loud, but seemingly irrelevant to prosecutorial decision-making. What is concerning is that there seems little consistency in who finally faces criminal charges rather than civil actions, lawsuits, forced resignation or other action.
As always, someone always insists on Blame, and yet, as a society, we may be losing sight of what is criminal. As a nation, do we care about justice for victims, about locking people up for abusing societal norms, or prison as the only punishment — at a time when we also acknowledge that we are sending way too many people to prison altogether.
Even without court judgments — which themselves increasingly are all over the board — questions about whether to prosecute seem to live or die more on whether the prosecutor can be confident of winning rather than on whether there is a debt owed to society or to specific victims. That was true in the George Floyd case, which had to be pushed to get to the filing of criminal charges, to the Georgia Ahmed Aubery case, where local prosecutors tried to shield the eventual defendants, to lots of others.
During this week alone, we see a few situations that have made it to the public eye because of celebrity or notoriety. These are cases that beg for solution, yet there are significant questions about whether criminal charges are the best answer.
— The film shooting. From the seemingly endless news coverage, we know, for example, that something went so seriously wrong on that movie set in New Mexico that live ammunition mistakenly ended up killing a cinematographer and injuring the film director, but we’re unclear about whether the circumstances arise to a crime that will be prosecuted in court.
The goals here seem straightforward, starting with appropriate work conditions, training, and enforcement of industry standards to keep live ammunition off film sets. All that is achievable without criminal prosecution, of course. Meanwhile, we already are assured of a welter of civil lawsuits as the producers, including actor Alec Baldwin, who fired the gun, blames the set armorer, the armorer blames the company for overwork and understaffing, everyone blames the assistant director who forgot to check the ammo.
Are criminal charges on death from recklessness appropriate? Can it even be proved to be something other than error? Is there a goal for prosecutors here? It seems an example of prosecutorial overthinking, but for a reason.
— Andrew Cuomo now faces a criminal charge of “forcible touching” for groping a female aide’s breast inside the state’s executive mansion, according to a criminal complaint filed in Albany City Court. But the charge was filed by the county sheriff, Craig Apple, and not the Albany district attorney, David Soares, or the state attorney general’s office, which oversaw the well-publicized investigation of the former governor’s behavior with several women, most of them employees. Indeed, we learned that if the DA doesn’t back the charge, it may be dropped.
This incident, which seems to involve one-time aide Brittany Commiso on one night, is one among several that eventually led to Cuomo resigning — which some would argue was the appropriate “punishment” for acts that would be difficult to prove in court. In this case, there are conflicting statements, though evidence that the two were in the same place on the same day.
Forcible touching is a misdemeanor that carries a penalty of up to one year in jail. To prove it, prosecutors must show that the defendant acted either to degrade or abuse his victim, or for his own sexual gratification. Even if convicted, it is unlikely Cuomo would see the inside of a jail, raising the question of what exactly the prosecution is going to achieve here.
It seems an example of prosecution by automation, without the usual prosecutorial review.
— Stephen K. Bannon, meanwhile, is still free and continuing to broadcast his broadside attacks on government and elections, even as U.S. Atty. Gen. Merrick Garland delays decision on whether to prosecute contempt of Congress — as voted by the House, for failing to satisfy a congressional subpoena.
By contrast with the other cases above, criminal prosecution is a direct and only solution available unless Bannon complies, and we know that what is at stake is the power of Congress to do its oversight job. So far, Garland says only that the law and evidence will guide his decision, but more than a week has passed without a move.
It feels like an example of seeking to avoid politics by prosecution.
Granted, these cases involve boldface names, which inevitably attract oversized attention. The outstanding question is whether they are outlier instances or more a reflection of a legal system built more for winning than for justice-seeking.
We have more concern about a single bullet being fired by mistake on a film set than we do for continuing school shootings, for example. Or lots more television coverage about the white woman killed on a vacation trip and her missing, fleeing lover than on any of the myriad urban shootings in Chicago on a typical weekend — with relatively few criminal charges arising.
We have a civil lawsuit case in Charlottesville starting this week pretty much only because the authorities gave up on prosecuting criminal charges. Even in its opening moments, it is turning into a less-than-serious display of bloated egos among the White supremacist defendants trying to turn the courtroom proceedings into a polemic against Blacks, Jews, and Muslims to defend themselves against allegations of creating a plot for the 2017 rally turned violent.
The Texas abortion law is remarkable even beyond its constitutional questions because it has turned enforcement over to vigilantes rather than to preserve government entities as guarantors of rights.
Republican senators this week insisted that Atty. Gen, Garland resign or rescind a memo offering FBI help or advice to school boards facing significant personal threats in the name of squashing individual rights to free expression. Apart from the gap between the language of the memo and the Republican re-interpretation of it into partisan attacks on culture for political gain, we’ve lost the idea of protection against violence.
It feels as if something has gone off the rails in our views of Justice, whether well-meaning or perverted. Any civil society wants to adopt rules. A judicious approach to enforcement requires that we understand what our goals are in seeking to lock people up.