How Do Prosecutors “Send a Message”?
The recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.
Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment — and subsequent criminal process — will communicate to the general public a message of accountability regarding certain proscribed conduct. Using the context of socially prominent cases and foreign affairs prosecutions, this Article argues that prosecutors are comparatively ill-suited to consider such prosecutorial messaging because they lack relative capacity to appreciate societal response, or the divergent ways communities will make sense of criminal cases. This Article explains the mechanism of societal response as social meaning. It concludes by calling for democratization and decriminalization in criminal law.