Earlier this week the New York Times prominently featured a story on an increase in homicides this year in many American cities. The piece focused on Milwaukee, which has seen the steepest rise in the nation in the number of murders as compared to 2014, followed by St. Louis and Baltimore. While drawing no firm conclusions about the cause for the increase, the article quoted one academic who suggested that “less aggressive policing had emboldened criminals,” an argument “known as the ‘Ferguson effect’ in some circles.”
This coverage comes at a moment when, for the first time in a generation, criminal justice reform at the federal level seems at least conceivable, but also at a time that the man leading the race for the Republican Presidential nomination has been featuring family members of people murdered by undocumented immigrants at large, raucous political rallies, and deploying a “law and order” rhetoric with more open aggression than we’ve seen since Reagan, George H.W. Bush, and Bill Clinton.
For those interested in prosecutorial accountability, then, it is worth taking a step back to consider how this uptick in urban homicides, and particularly the media coverage it is receiving and will likely continue to receive, may impact efforts to reform the prosecutorial function.
The danger to the reform effort is an obvious one: a media narrative of a new “crime wave” quickly pushes aside the nascent national concern over prosecutors’ excesses, and the widespread prosecutorial impunity that has only very recently begun to be called into question by journalists, and lately judges, is endorsed anew by politicians and eventually the public as a sign of “toughness.” Indeed, the ubiquitous Mr. Trump has already begun heading in this direction.
The two most common and still highly necessary responses to this line of argument are to repeatedly point out, first, that last year violent crime in the United States, including murders, reached its lowest level in thirty years, and thus any increase must be seen in the context of this dramatic overall decline (sensationalist coverage performs the opposite effect, triggering fear and destroying this context); and second, that the severity of prosecution and over-charging that has contributed so heavily to mass incarceration has had little to no effect on the huge drop in crime, making a totally ineffective remedy even if there were an actual, lasting increase in crime.
But, important as they facts are, if efforts to fight “the epidemic” of prosecutorial misconduct are to succeed and to last they have to be grounded in arguments of principal rather than pragmatism. Because while it is true that over zealous prosecution and outright cheating do nothing to protect the public, that is not the reason they must be rooted out and eliminated. They must be eliminated because they are unethical and illegal, and would need to be rooted out even if they did serve to protect the public. Their illegality does not vary with the crime rate or the national mood, anymore than the illegality of murder does.
We do not tolerate vigilante justice even if a guilty man ends up dead. Nor can we tolerate the violation of the law of criminal prosecution regardless of its result.
Commentators and academics have debated for years the reasons for the long term downward trend in crime in the United States. Doubtless they will continue to debate any signs of increase, however fleeting. Meanwhile, most of the media will continue to cover crime as they always have—as a perpetual emergency, and cause for fear if not panic.
But if we’re going to have a justice system that actually produces constitutional justice for all citizens, including those accused of crimes, be they innocent or guilty, we must continue to point out that the most under-publicized “wave” of illegal behavior of the last thirty years may well be the misconduct of the men and women whose job it is to prosecute crime in the first place. One illegal act does not justify another.
In the months and years ahead, the crime rate will vary for myriad reasons, and there will continue to be contention over what causes these dips and spikes. But none of this should not distract us from this particular constant: if we are to have a rule-of-law society, it is not just citizens but also prosecutors who must obey the rules of the law.