Law in Contemporary Society

How do I sleep at night?

I am an ADA. I'm the guy who keeps bad people away from you, the law-abiding model citizen. I could have been a millionaire had I used my license differently but here I am, working hard for you on a meager salary. So yes, I am more than a little bit disturbed when you question my career choice. My friend Rod (a privileged cokehead turned still-privileged prisoner's rights advocate) regularly asks me how I sleep at night knowing that I have condemned hundreds of people to hellish lives in the prison system. On whose authority do I get to inflict such pain?

Absolute morality

My job would be a lot easier if actions had inherent and indelible moral characters. Unfortunately, this is not the case. Most of us are endowed with a moral compass, but yours and mine often point in different directions. One man's freedom fighter is another man's terrorist, right? I do not make a moral judgment when I seek to convict someone. Granted, my boss - you People - like to pretend that criminal acts are inherently evil, but I would be downright delusional to actually believe that the defendant violated a higher law which transcends the limits of human relativism. That was the medieval times. This is now. The defendant today is being punished because he broke our rules. And our rules are necessarily arbitrary in their moral implications.

The Rules

Once we accept that our rules lack absolute moral authority, we must seek out alternative sources of justification. Or do we? Many irrational (perhaps "arrational" is a more appropriate description) rules are self-sustaining. If we've had these rules for centuries, and most people seem to accept them by default, then to whom do we owe any justification? But that is too lazy. Criminal law is a powerful weapon that inflicts a lot of harm, so the people on the receiving end demand an explanation. The justification is usually a mix of subjective morality, a property-oriented sense of fairness, and social utility. In other words, virtually every crime is defined as such because (i) there is general agreement that the action is morally reprehensible; (ii) we feel that those who take something away from others should have things taken away from them; and/or (iii) we are better off as a society when such action is discouraged. I am not asking you to buy into any of this. I am simply suggesting that should a rare philosophizing defendant demand an explanation, the system is ready to defend itself.

Social Contract

We must accept the possibility that sometimes there are really good reasons for implementing a rule. Nevertheless, no rationale of that kind is strong enough to satisfy the fundamental question: at which point did a free, independent man incur an obligation to respect the rule of law?

Most prosecutors I know point to a powerful but ever-elusive contract. Apparently, every member of our society has entered into an agreement by and among themselves - in consideration for all the benefits that the society offers, each party agreed to be bound by the rules, procedures, and conditions of that society. This amorphous contract is amended every microsecond, and its terms are a manifestation of the collective will. If you don't like it, too bad. Deal with it or get the hell out, right? This concept is fraught with all sorts of problems. The most glaring among them is that the contract is a complete fabrication. There is no comprehensive contract, implicit or explicit. Assuming arguendo that such a contract exists, it is an unconscionable one many of which signatories were coerced into accepting wildly unfavorable terms. The benefits are unevenly distributed, and the obligations are often inversely proportional to the benefits. With the exception of affluent adult-age immigrants, most signatories never had the ability to affirmatively sign this contract. Those with the least favorable terms generally cannot afford to get out.

Head In The Sand

So far, we have a made-up concept which purportedly justifies binding free men and women to a bunch of rules with no moral authority and imperfect rationale. Where does that leave us? Can I possibly send people to prison on such flimsy grounds? At a fundamental level, this is a binary question. Either the state cannot ever interfere with private actions, or it has to find some grounds (albeit illusory) to do so. And I choose the latter becuase the consequences of the former are inconceivable.

The remaining question is one of degree. If states can interfere with people's lives based on artificial constructs, how far can they go? I am not ready to answer that question fully, but surely, states must retain the power to enforce their rules and punish the offenders. That is the very definition of "power to interfere."

I have already accepted the unfortunate reality that all rules, whether just or unjust, rational or irrational, are equally illegitimate at a fundamental level. Nevertheless, a lot of good can come out of pretending otherwise. Ever since its founding, America's ethos was inseparably tied to a sense of fairness and rationality. I am not suggesting that the execution of these ideals has been anywhere near adequate, but in my professional life, I try hard to stay true to the spirit.

By and large, prosecutors are intelligent and sensibe people who play fair. We are given a lot of discretion, and I take that responsibility seriously. The power to turn down cases is an important one. When I say "People," I don't mean everyone in the state minus the defendant. When I seek to send people to jail, I am committed to the propriety of the action.


How do I sleep at night? I close my eyes and focus on all the wonderful things in life which are preserved thanks to the institution I represent. I try not to think about the victim or the defendant.

This is an odd essay, because it spends a great deal of time justifying the part of the system prosecutors have nothing to do with, namely the mere existence of law, including criminal law, and no time justifying any of the things that prosecutors actually do. How does he deal with the necessity for constantly turning his blind eye to small-scale police perjury? How does he deal with the immense industry in useless narcotics incarcerations? How does the endless parade of youngsters who could have learned and been successful if only their dyslexia had been treated (78% of the defendants prosecuted by one ADA in the Bronx who paid to have them tested out of his own money, for example) affect him? All this "keeping the streets safe" crap only goes so far, really.

-- PeterPark - 26 Feb 2010


Webs Webs

r4 - 13 Jan 2012 - 23:14:24 - IanSullivan
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