The Third System Is Sometimes The Best

Public Defender Sarah makes an eminently reasonable observation about the prosecution of Lori Drew. The civil justice system is significantly more flexible than the criminal justice system, and for good reason.

The downside to the civil courts is that Lori Drew probably has no money and no substantial assets. While she did something that at minimum comes close to the tort of intentional infliction of emotional distress, I wouldn't sue her. Not that I don't think I could win, but I don't think I could collect.

But on the criminal side of things, it seems to me that over-zealous prosecutors whose desire for some limelight to serve as nitrous oxide for their careers give themselves significant blind spots to the big picture. A prosecutor's client is not the government, it is not the victim, it is not the police, it is not the conviction. The prosecutor's client should be justice. Too often, it seems prosecutors act as though their client is the pleasure of the voters. Courts are not supposed to be democratic institutions and I remain convinced that democracy can corrupt the courts.

That's especially true when you have judges who let themselves grow afraid of public opinion. Sarah rightly takes the judge in the Lori Drew case to task -- he could and should have thrown the prosecution out at an early stage because no crime was committed. A despicable act was committed yes, but not a criminal one. There's a difference. The judge in this case is a federal judge with a lifetime appointment -- he's supposed to be insulated from that political pressure.

But that gets us away from the point -- she committed no crime and should not have been criminally prosecuted, and she's judgment proof so she can't really be gone after in the civil courts. So how can justice be meted out to Lori Drew? My answer is that she will get -- and has already got -- her punishment in the court of public opinion. When we think about justice, we often forget that shame is, or ought to be, a significant thing. There are things people are ashamed of that they shouldn't be (like having sexual desires) and things they aren't ashamed of but should be (like cheating on their taxes). Lori Drew's punishment for her despicable act should be, and is, humiliation, public opprobrium. Every time she goes to Wal-Mart and people sneer at her, that's her punishment.