Knockdown: Witness (or instigator) for the Prosecution by Heather Ferguson

Knockdown | Text by Heather Ferguson | January 2011

My auspicious legal career began years ago as a humble law clerk at Legal Aid. On my commute, I traveled through many poverty stricken neighborhoods, something rather foreign to my upper middle class upbringing. One morning I noticed the sign outside a small restaurant a warning “No loitering. Violators will be persecuted.” Thinking it was simply an ignorant shop owner who had misused the word “persecute,” I nevertheless grew to love that sign on my daily drive. I smiled thinking of the owner giving violators a piece of his mind and probably a few choice words, too. However, having been in the legal profession now for almost 15 years, I think that shop owner may have gotten it right. Is there really any difference between persecution and prosecution?

Webster’s Dictionary defines “prosecution” as the institution and carrying on of legal proceedings against a person while “persecution” is a program or campaign to exterminate, drive away, or subjugate a people because of their religion, race, or beliefs.” They sound pretty similar, don’t they?

From the earliest beginnings, prosecutors served at the pleasure of some higher power, whether church or government. Though many historians offer up different perspectives, it would seem that the earliest prosecutors were probably inquisitors, appointed by the pope during the 12th century. Although the inquisitors were given the duty of conducting independent investigations into heresy and criminal behavior, they also wielded tremendous moral authority. This role evolved over the centuries morphing into a system in America where a prosecutor maintains tremendous discretion in choosing which behaviors to investigate and prosecute.

Though interesting, this still leaves us with the core issue. Who is doing the prosecuting and what are they persecuting? A review of the laws of most states would reveal that there are criminal penalties associated with moral choices. Some are understandable. Of course we want the government to pursue thieves, murderers, and child abusers. But what of lesser “crimes”? For example, cohabitation is illegal in the Commonwealth of Virginia. Are we really punishing an illegal act or are we forcing our morals onto others? And, if so, isn’t that persecution? What behaviors, or groups of individuals, are we really trying to punish? My time at Legal Aid demonstrated to me that those who are most vulnerable are often the ones who are persecuted, whether intentionally or not, by decisions made by those in power. Whether that power is political, governmental, religious or privatized, it does not seem to matter. The outcome is the same.

And what of the recent economic recession? We cast judgment regarding those individuals who can no longer afford their house, their car, or their credit card payments. Yet, on a national level, those same behaviors at the corporate level risk no true punishment. Is this to say that those in power, in choosing what behaviors merit prosecution, can single out a class of people? And, if the government is made of mere individuals, who dictates the mores that govern the implementation of criminal codes? This is not to say that we should revert to a land without laws. We need laws to protect us as citizens, to promote peace, to preserve our freedoms, to prevent chaos.

Instead, perhaps we should look at the purpose behind our system of prosecution. If the recession has taught us anything, I would hope it is the importance of accountability. Not just in banking or finance, but in the way we conduct ourselves within our communities and social strata. The theme of survival of the fittest exists for a reason. Yet, recognizing perspectives and philosophies different from our own can only strengthen our own society. Think of the Renaissance and the amazing beauty that came from what others might call heresy…