Darryl K. Brown (University of Virginia School of Law) has posted The Rise, Risk, and Necessity of Criminal Law Impunity on SSRN. Here is the abstract:
Despite criminal law’s record of excessive enforcement and mass incarceration, impunity—exemption for the guilty from accountability—remains a critical and routine feature of criminal law administration. All three branches dispense impunity, but foremost are the executive powers of pardons and prosecutorial discretion. Impunity gives priority to other important public interests over the interest in punishing culpable wrongdoers. In the right circumstances, impunity helps to sustain criminal law’s legitimacy. This is most apparent in the tradition, from Washington through Trump, of presidential pardons intended to foster “national reconciliation” in periods of sharp political polarization. Presidents repeatedly recognize that when the polity is deeply divided over issues related to criminal wrongdoing, prosecuting even those guilty of serious crimes can undermine criminal law’s legitimacy, exacerbate social divisions, and threaten civic peace. In such circumstances, criminal law enforcement loses its capacity to reinforce social cohesion and shared norms. Criminal law’s legitimacy depends not simply on fair enforcement but on forgoing punishment even for serious crimes. Impunity rather than accountability becomes the path to political reconciliation.
After defending this account of impunity’s role, the Article reassesses three recent controversies: Trump’s January 6 pardons, the federal prosecutions of Trump, and the Supreme Court’s recognition of presidential immunity. In all three cases, arguments for impunity were stronger than critics acknowledge. But the lessons of reconciliation policies, and of criminal law’s perverse effects in polarized polities, suggest that each was notably flawed. Biden, not Trump, should have pardoned January 6 offenders. Prosecuting Trump in a context of deep partisan dissension had the polarizing effect that past presidents foresaw in pardon statements. And while Trump v. United States rightly recognized that political dysfunction can justify presidential impunity, it wrongly foreclosed any role for the political branches in making that judgment.
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