The assistant attorney general in charge of the Civil Rights Division at the Department of Justice is Kristen Clarke. Her bona fides as a warrior for racial justice, whatever that means, are far beyond reproach, to the extent that her office pursued a second prosecution of the three men convicted in Georgia of the murder of Ahmaud Arbery after they had been sentenced to life in prison, two without the possibility of parole.

In some cases, the family of a murder victim takes a magnanimous view toward the killers. Not here. His mother, Wanda Cooper-Jones, demanded more.

Arbery’s family was outraged that the plea would allow the McMichaels to serve time in federal prison instead of the Georgia state system.

“It is not fair to take away the victory I prayed and fought for. It is not right, it is not fair, it is not just,” Wanda Cooper-Jones, Arbery’s mother, said during the court hearing on Monday.

“Ahmaud did not get an option of a plea; Ahmaud was killed. Ahmaud was hunted down. My son was killed. I am asking you on behalf of my family, please do not accept this deal,” Cooper-Jones said.

Some offer mercy. Some demand brutality. Most people can argue it either way, and do according to their feelings toward the defendants and the victims. And in this case, for now, the family won the day and Judge  Lisa Godbey Wood rejected the plea agreement, that would have fixed the sentence for the violation of Arbery’s civil rights by murdering him at 30 years. Part of the plea agreement included a provision that the 30 years be served in federal prison, which does not appear to be within the court’s power to mandate, but fed into an argument against the plea because it wasn’t harsh enough.

“The DOJ has gone behind my back to offer the men who murdered my son a deal to make their time in prison easier for them to serve. I have made it clear at every possible moment that I do not agree to offer these men a plea deal of any kind,” Cooper-Jones said before the court proceedings Monday. “I have been completely betrayed by DOJ lawyers.”

AAG Clarke issued a statement that the family’s lawyers knew of, and had no opposition to, the deal before hand.

“The Justice Department takes seriously its obligation to confer with the Arbery family and their lawyers both pursuant to the Crime Victim Rights Act and out of respect for the victim. Before signing the proposed agreement reflecting the defendants’ confessions to federal hate crimes charges, the Civil Rights Division consulted with the victims’ attorneys. The Justice Department entered the plea agreement only after the victims’ attorneys informed me that the family was not opposed to it.”

Over the past decade, there has been a misguided push based on insipid emotional appeal to conflate the nature of criminal prosecution with the passionate desires of victims and their families. It played well, giving rise to the CVRA and variations of Marsy’s laws. As Cooper-Jones says, she didn’t agree to offer these defendants a plea, as if the decision was hers to make. The government has vast power, vast resources. For whom does the government work? Who is the master? Who decides that “justice” means mercy or brutality?

“Federal prison is a country club when compared to state prison. Federal prisons are less populated, better funded and generally more accommodating than state prisons. These men hurriedly entered this plea deal that would allow them to transfer out of custody from GA prison,” Merritt said on Twitter late Sunday night.

The pop view is that the government should listen to the victims, take their feelings into account, use their vast power to achieve whatever the victims feel is justice. Of course, victims can be blinded by emotion, by hatred, by anger and outrage. If your child was murdered, you might be too. Or not, but again, that’s entirely up to the family of the victim.

But ultimately, a decision gets made, and while it may consider the feelings of the family of the victims, that’s only one factor in the process. And in this case, notwithstanding Kristin Clarke’s implicit dig at Lee Merritt, candidate for Texas Attorney General and the current “It” lawyer for racial hate crimes, that he knew and approved of the deal, then spun shamelessly when it turned out his clients did not. Cooper-Jones may believe she was “completely betrayed by DOJ lawyers,” but Clarke isn’t taking the weight. Neither is Merritt.

Neither Clarke nor Merritt, however, raise the salient question of whether it’s possible for Cooper-Jones, for Ahmaud Arbery, to be “betrayed by DOJ lawyers.” Certainly, there are the outlier cases of corruption as most view the Epstein Non-Prosecution Agreement, but when the issue isn’t prosecutorial impropriety, who dictates prosecutorial discretion?

Many of the same people emoting effusively for this second hate crime prosecution, because it’s HATE and a murder conviction and life sentence doesn’t punish the separate but evil wrong of racism, applaud the use of prosecutorial discretion to decline to enforce duly enacted laws by progressive prosecutors. For the most part, it’s premised on the fact that prosecutions are disproportionately directed at black defendants, which doesn’t make the conduct wrong, but evokes an empathy toward the perpetrator that is deemed greater than the harm the conduct causes.

Here, Arbery’s mother reveals that her real desire has less to do with making sure that her son’s killers suffer as much as possible, as wanting a second trial focused solely on the issue of racism. Cooper-Jones doesn’t want a “plea deal of any kind,” but a trial where the defendants will be proven to be racists. Merely admitting to it in the plea allocution isn’t enough. And then she wants them to suffer, and suffer more, because the government wields its vast power not for a legitimate public interest, but to serve the fury of the victim’s family. At least when the defendants are of the sort the public despises.