Document Type

Article

Publication Date

2000

Abstract

For two centuries, the private violence of American history has paraded into courts for public trial. Often dramatized by the spectacle of rape and murder, the public trials of private violence increasingly are seen to decide the fates of both the accused and the victim of crime. The fate of community, whether the community of the victim, the accused, or the public, seems at first blush untouched by such trials. Like victims and their families, however, communities struck by violence suffer profound loss. That loss is expressed in the destruction of public discourse, reason, and citizenship. This public ruin is not simply the result of interpretive and material violence; rather it is a consequence as well of the force of law and legal agents. The forum of law's violence is the criminal justice system. The agents of its advocacy are prosecutors and criminal defense lawyers. Their acts and ethics work to shape the prosecution of violence. When that prosecution confronts race, law and community each faces trial and, inevitably, the despoiling of public interracial dialogue. Indeed, the prosecution of racial violence typically silences the reasoned public deliberation and exchange necessary to construct interracial community. The norms and narratives of community and criminal justice heard at the trials of private racial violence by no means ordain this result. Reflecting the institutional and regulatory complexity of multiple prosecutorial roles and burdens, those norms and narratives grant both freedom and constraint in the prosecution of racially motivated violence. Guided by the lessons of law reform movements and the teachings of grassroots community organizations, the challenge for prosecutors in race cases is to overcome the burden of silencing tradition and to explore the discretionary freedom of reconstructing interracial community.

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