What is a "miscarriage of justice"? One might think of many ways in which the wheels of criminal justice jump the tracks. The criminal system might permit the conviction of an innocent or the admission of a coerced confession. The system might permit bribery and influence of state actors. The system might tolerate the mistreatment of victims, witnesses, or defendants in the process of adjudication. This particular issue of the Albany Law Review focuses on a specific undesirable situation, namely one in which a "guilty" person "goes free." Typically, victims' rights activists and conservatives concerned with crime control are the most vocally opposed to leniency and defendants benefitting from legal "technicalities." (1) There is, however, a set of cases in which the lenient treatment of criminal defendants engenders critique from progressive scholars--scholars whose sympathies otherwise lie with defendants' rights. In such cases, state actors and jurors treat apparently culpable defendants leniently, not to remedy police misconduct, but because of the minority status of the victim. (2) Progressive scholars contend that defendants who offend against women, racial minorities, and gays in ways that reflect social and cultural hierarchies are the beneficiaries of discriminatory mercy from biased legal actors. (3) Examples include the state's failure to take domestic violence seriously, (4) the various barriers to successful rape prosecution, (5) and male defendants' disproportionately successful use of the provocation defense in intimate homicide, (6) and "gay-panic" cases. (7)
The liberal position on discriminatory leniency is poignantly exemplified by the progressive outcry against Florida's stand-your-ground law in the wake of Trayvon Martin's death. (8) Publicity of this now high-profile case began in the social network, and online outrage propelled it into national headlines. (9) It soon became politically polarized. Liberals condemn the shooter, George Zimmerman, for acting on racialized suspicion, the Sanford police for declining to arrest, (10) and the Florida law for permitting a person to kill even when safe retreat is possible. (11) Conservatives, by contrast, tend to side with Zimmerman, a local neighborhood watch leader, denying that he acted on the basis of race, and supporting the law as permitting law-abiding citizens to defend themselves. (12) In a sense, the world has been turned topsy-turvy. Progressive activists and scholars call for the application of police power to Zimmerman and the elimination of a defense-friendly law for all future murder defendants. (13) Conservative commentators lobby for prosecutorial restraint and the scrupulous honoring of a murder defendant's legal rights. (14) What could move the tough-on-crime party to support leniency? What could move state authority skeptics to champion broadening prosecutorial power?
For the past several decades public discussion of the penal system has centered on spectacular crimes in which evil defendants commit grievous harms against paradigmatically innocent and vulnerable victims. (15) This framework permits conservative commentators to embrace ever-harsher criminal laws while exempting certain offenders like Zimmerman from the punitive paradigm on the grounds that he is not a "real" criminal and Trayvon is not a "real" victim. Liberal criminal law scholars, by contrast, generally resist the lure of spectacular retributive rhetoric and its punitive consequence and take a global view of the importance of protecting individuals from state penal authority. (16) Progressive theorists routinely criticize mass incarceration, the one-way upward ratchet of U.S. sentencing policy, and the eroding of defendants' civil liberties. (17) Nevertheless, liberals call for strict prosecution in Trayvon Martin's case, rather than applauding the Sanford police for scrupulously respecting Zimmerman's rights under Florida law. (18) This is because the police's unusually restrained behavior had less to do with any civil libertarian desire to protect Zimmerman's freedom than with the police's overt racism and internalization of the black-as-criminal stereotype (or at least understanding of Zimmerman's stereotypical thinking). …