One reason that prosecutors are often such theatrical, grandiose types (Preet Bharara, Rudy Giuliani, Chris Christie) may be that the role naturally fits a particular quixotic self-image, the state’s attorney against the world. In the press clippings the prosecutor is not just a distributor of retributive justice, the official sent to ensure a mugger goes to jail, but the means by which the state takes on broader conspiracies and corruptions: the mafia, Islamic terrorists, rings of insider traders embedded within banks, hedge funds, and corporations. The vanity of the state’s attorney is often that he is not just delivering individual justice but taking down corrupt and criminal institutions — that he is practicing modernization politics by other means.
Since 9/11 many liberals have worried about the powers that prosecutors were acquiring to monitor email and phone traffic, to trace the flows of money. The past couple of weeks have served as a reminder of how much a powerful state, in the hands of a progressive prosecutor, can do. First, Marilyn Mosby in Baltimore announced manslaughter and murder charges against the police officers involved in the death of Freddie Gray. Then in the space of the last few days Loretta Lynch first announced that four banks had agreed to pay $2.5 billion in fines for rigging the foreign exchange markets, and then revealed indictments against 14 of the planet’s most senior soccer officials, describing a pattern of corruption and bribery that has been endemic within FIFA for decades.
The image that cohered in these two African-American women was that of the prosecutor as social justice warrior, with smoke-filled rooms evaporating before her. In the same press conference Lynch denounced the old boys’ club that had corrupted the World Cup and made the case for renewing a key provision of the Patriot Act. One interesting question, should a Democrat win election in 2016, is whether liberals will be more comfortable with an expansive state if that state is also an activist, progressive one.
Lynch and Mosby made their activism easy to see. In these three cases the prosecutors were more or less explicit that they were not just interested in jailing a few criminals but in changing a corrupt culture — of the police in Baltimore, the banks, institutional soccer. If politics were working perfectly, we wouldn’t need their intervention; criminal indictments wouldn’t be required to fix these institutions. But because they are, there is a tension at the heart of all these cases. What the prosecutor can do is indict criminals for criminal behavior. What we want the prosecutor to do is not just put a few villains on parade but make Wall Street more responsible, the police less brutal, soccer television rights more transparently marketed. Sometimes one leads naturally to the other. Not always.
Consider the Freddie Gray case. One thing that separates this from other police killings (from Tamir Rice’s death in Cleveland or Walter Scott’s in South Carolina) is that in Baltimore, no individual cop fired a bullet. Gray died, as they say, in a context. There is a long history in Baltimore of “rough rides” — two men have won multi-million suits against the city police for rough rides that left them paraplegic, and others are pending, including one brought by a 27-year-old female university librarian. We know, in other words, that cops in Baltimore generally do things very much like what they did to Freddie Gray, and that multi-million-dollar payments have not ended the habit. The crimes of Freddie Gray’s killers, as the Baltimore prosecutor Marilyn Mosby described them, were ones of profound neglect and omission: failing to seat belt Gray into the van, ignoring his repeated pleas for medical attention, simply shutting the door when he was unresponsive inside. What Gray suffered was no less outrageous than Rice or Scott but more elusive, in that the responsibility fell less than it usually does on an individual cop and more on the department’s culture. Freddie Gray suffered death by accumulation of neglect, death by police culture, death by bureaucracy.
The senior officer charged in Gray’s death is a 30-year-old African-American sergeant named Alicia White. By all accounts, White was the kind of cop progressives would like to see more of. “Not even the type of person who would jaywalk,” a neighbor told reporters. White volunteered with a neighborhood association in a northeast Baltimore neighborhood where she had patrolled, and its president recently came to a press conference to give character testimony on her behalf. The Times reporters assigned to sketch her life described her as “church-going” and a “rising star.”
White was not involved in the initial pursuit of Freddie Gray, or his apprehension, or his initial confinement in the van. By the time she enters the story (according to charging documents) Gray had already suffered a “severe and critical neck injury” and had asked repeatedly for medical assistance, only to be ignored. White (who, again according to the charging documents, knew that Gray had been requesting medical help) looked inside the van, together with two other officers, spoke to the back of Gray’s head, and, when he did not respond, did nothing. White has been charged with manslaughter. Her act, if Mosby’s allegations are right, was abhorrent. But it is less abhorrent than the persistence of the culture of rough rides, than the habitual way in which police abused the bodies of their prisoners and acted as if they were theirs to break.
In the cases stemming from the financial crisis, prosecutors have generally made a different decision. They have barely prosecuted anyone at all. Both the Alicia Whites of the financial world and its clearer villains have been let off. In the ForEx case whose resolution Lynch just announced, for instance, the markets had been rigged not by faceless corporations but by particular traders in chat rooms called “the mafia” or “the cartel.” “If you ain’t cheating, you ain’t trying,” one Barclays banker, unprosecuted, typed, in one of these chat rooms.
The choice prosecutors made was to indict the corporations, rather than individuals, and then settle for massive payments. Almost surely class allegiance helped soften the prosecutors toward the bankers. But there’s also a better defense for these non-prosecutions: Criminologists haven’t found much evidence that longer sentences or more aggressive prosecution deters future crimes. Force the corporation to pay painful fines and you can hope it will change its practices and culture to avoid them. Punish an individual and it is hard to be sure you effect the culture at all.
It’s impossible to say yet whether the indictments of police officers in Baltimore and FIFA officials in New York will have a broader effect. The early signs aren’t great. FIFA reelected Sepp Blatter, under whose watch corruption blossomed. In Baltimore, cops seem to have responded to the indictments with a work slowdown, during the city’s most violent month in 15 years.
The reach of the American prosecutor, on display in Lynch’s press conference, was breathtaking. The Times soon ran a story about the international fascination with the attorney general. “It is interesting,” a South African journalist explained to the paper, “that there’s a woman calling the shots for the U.S., and a black woman at that. In particular, going up against football, which is such a boys’ club.” There were articles praising Lynch across several continents. “They don’t like the American government,” suggested the Washington correspondent for an Argentine daily, speaking about the readers back home in Buenos Aires, “but they do like her.”
What Lynch and Mosby did over the past few weeks has been both brave and heroic; they’ve provided clear political signals to the public that these institutions have spun badly out of control. But the corrections we most want in these cases depend less on the outcome of the prosecutions than on what happens after the public gets those political signals. Which makes sense, because the networks that these prosecutors are after aren’t merely criminal. They are political too.