Justin Moyer is on Outlook’s editorial staff.
When trying to punish people who shoot black teenagers, Florida prosecutors can’t seem to catch a break. Last weekend,the man who killed Jordan Davis after an argument about loud music was found guilty of attempted murder but escaped a first-degree murder conviction — seven months after George Zimmerman , Trayvon Martin’s killer, was acquitted.
But perhaps Sunshine State district attorneys should take heart. According to a paper published this month in the Seton Hall Law Review, “not guilty” doesn’t equal failure.
“Prosecutors should use their unique expressive power pedagogically — that is, to advance constructive political dialogue,” writes Nirej Sekhon, an assistant professor at the Georgia State University College of Law. “Prosecutors have unique power to generate social and political meaning through their discretionary choices — for example, to prosecute or decline cases. While that power derives from prosecutors’ authority to punish, it is not reducible to it.”
Sekhon’s paper, titled “The Pedagogical Prosecutor,” focuses on “expressive conflict” — public disagreement about the value of controversial legislation such as Jim Crow, hate-crime and “stand your ground” laws. Where such conflict exists, Sekhon says, “prosecutors taking their pedagogical responsibility seriously” would jettison plea deals and try cases about big issues, even when chances of conviction are low.
“Measuring prosecutorial success largely in terms of convictions will lead prosectors to make choices that do little to stimulate broad debate,” Sekhon writes. “ ‘Losing’ tough cases that further constructive public dialogue should be recognized as success.”
In other words, even though Zimmerman went free, the Martin case provided an important service.
“The broad-based public outcry against the shooting . . . forced conversation about the relationship between race, Stand Your Ground laws, and enforcement discretion,” Sekhon writes. “The acquittal did not detract from the case’s pedagogical value and, perhaps, even amplified it.”