Koh on Prosecution and Polarization

Steven Arrigg Koh (Boston University School of Law) has posted Prosecution and Polarization (Fordham Urban Law Journal, Vol. 50, No. 5, pp. 1117-1137, 2023) on SSRN. Here is the abstract:

 

Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.

This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time of polarization? This contribution describes a prosecution- polarization dynamic, wherein criminal cases may foster polarization domestically and internationally. In making this argument, this symposium contribution will survey theories of philosophy, psychology, and sociology that show the complexity of social meaning. It argues that this dynamic thus complicates scholarly notions that criminal justice should do reparative work. Domestically, some scholars argue that criminal justice should restore harmed victims or reconstruct torn community norms after a moral breach. Internationally, scholars contend that criminal tribunals should effect transitional justice, promoting accountability for atrocity crimes — genocide, crimes against humanity, and war crimes — in order to heal post- conflict societies. And yet, often, indictment and prosecution have the opposite effect, fostering polarization and alienation.