Prosecuting the Unpunishable, from Presidents to Dead People
37 Pages Posted: 2 Mar 2020 Last revised: 31 Mar 2020
Date Written: February 27, 2020
Criminal law’s central aspiration is to do justice, to give those who injure others the punishment they deserve or the punishment that will deter. Yet there are some criminals—the unpunishables—who necessarily frustrate this goal. These include criminals who happen to be presidents, who evade detection for long enough, or who die prematurely. Unpunishables are, for a range of constitutional, statutory, or obvious factual reasons, immune to any material form of criminal sanction. Does criminal law’s inability to deliver on its central aspiration where unpunishables are concerned mean that it must give up on everything it could have accomplished with respect to them?
Presently, the answer seems to be “yes.” When criminal law cannot deliver punishment, it abdicates all involvement, including criminal trial. Because it cannot punish, the law must leave a moral debt unpaid and a crime undeterred. However, by also refusing to prosecute, the law also goes several steps further. It leaves victims without a platform to shape their own narrative. It refuses formal recognition of the criminal wrong. It hamstrings the community’s healing process. And it silences the uncomfortable fact that society may have played an enabling role.
Criminal law can do better—it could permit the prosecution of unpunishable criminals. Punishment is not criminal law’s only purpose. Trial itself can be an independent source of value. When the criminal law conditions its entire application on what it can do to defendants, it loses sight of what it can do for victims and society. Permitting trials for wrongs committed by unpunishable defendants would give victims a powerful platform for telling their own stories. Conviction, even if not followed by sentencing, would publicly validate victims as having been harmed by criminal wrong and not by their own folly. The resulting narrative would compel society to recognize its own shortcomings and perhaps even its complicity in victims’ vulnerability.
Securing these values by prosecuting unpunishable criminals does have its costs. Perhaps chief among these is the trial of a defendant who may be unable or less motivated to mount a full in-person defense. Ordinarily that price would be too high to pay. It must be remembered, though, that unpunishable defendants have, by definition, no liberty interest at stake. So the price of an admittedly imperfect process will, in the most serious cases, be relatively modest in comparison to the benefits for victims and society of prosecuting unpunishables.
Keywords: Criminal Law, Trump, Epstein, Cosby, Criminal Theory, Punishment, Victim Rights, Impeachment, Philosophy of Law
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