We are all frustrated by corrupt legislators, executives, judges, and
sheriffs, but we should give some attention to corrupt prosecutors. They are
the ones who refuse to take a meritorious case to a grand jury or to prosecute
it because it goes against powerful interests or involves fellow officials.
There is an alternative we can use which we inherit from British law: the
private prosecution. It is a criminal prosecution that differs from an ordinary
criminal prosecution only in that instead of being prosecuted by a public
prosecutor, it is prosecuted by a private prosecutor, either working pro
bono or being paid by interested parties, such as the victims of a crime or
his survivors, family, or friends.
Reviewing the history of law, civil and criminal trials were originally not
separated as they are today. In the beginning, all trials were civil in form,
with some trials calling for criminal sanctions as remedies. In other words,
the victim of a crime would sue for both restitution and punishment of the
offender in the same trial. There were few criminal laws. Almost all law was
common law, the precedents of court decisions, even criminal law.
Later, as parliaments, county councils, and other legislative bodies adopted
criminal statutes, prosecutions of criminal acts would refer to the statutes
for support, and, eventually, criminal trials became separated from civil
trials, and persons were elected or appointed as full-time public prosecutors.
However, the use of private prosecutors did not disappear, and continues until
present times in Britain and Canada, among other places.
Private prosecution is not an established practice in the United States, but
a review of state and federal statutes finds no exclusion of it, either. If we
find the job not being done by public prosecutors, then citizens have the right
and the duty to initiate private prosecutions, and there is a vast agenda for
this revived practice.
Now, since this is no longer a well-established practice it will seem novel
to most judges. Therefore, I propose that the practice be revived for cases in
which powerful interests do not have a large stake, and therefore can be
expected not to intervene to thwart the effort. There are many cases that
should be easy to win that are not being prosecuted simply because prosecutors
lack the resources, and would welcome private funding of prosecution, or at
least acquiesce in it.
Once we get appellate support for enough private prosecutions, establishing
stare decisis, we can begin to go after the real targets: corrupt public
officials, especially those who stand in the way of prosecuting corrupt public
You are all urged to research the subject of private prosecutions and report
back to your correspondents. They are the key to making the grand jury system
work the way it was supposed to work. To revive grand juries, we need to revive
It is not proposed to completely replace the current system of public prosecutors with private prosecutors. The high costs of investigation and prosecution put that out of reach of most private parties, although we can foresee that private foundations or firms competing for prosecution contracts will arise to provide the resources in selective cases. The traditional method in the early republic was "subscription", in which the would-be prosecutor advertised for donors and passed the hat among citizens. That usually worked, although not always.
It can be expected that when public prosecutors are doing their jobs, few private prosecutions will be pursued. It is when they become corrupt and abusive that private prosecutions are needed and under this proposal, would become more frequent.
Filtering out personal vendettas is what the grand jury is for. That was one of its major tasks from the outset, when most criminal prosecutions were privately funded. The present system of public prosecutors is certainly not free of personal vendettas. Indeed, that is one of the ways abuse is happening. It just doesn't provide a way to control it when grand juries have been brought under the control of the public prosecutors.
There is no real possibility of government officials controlling the abuses of other officials over the long term. That might work for a few shining moments, but it is not sustainable, and once entrenched, corruption can be almost impossible to overcome. The only way to hold officials accountable is to allow private parties from outside the system to effectively intervene, and if the result becomes a tad anarchic, that is not too high a price to pay for accountability.
One of the problems with public prosecutors is that people tend to be less skeptical about the arguments and evidence they might present. They are invested with an aura of authority and respectability that leads both grand and trial juries to go along with them.
Now suppose a would-be private prosecutor files his bill of indictment with a grand jury. Knowing it is a private prosecutor, one would expect the grand jury to be more skeptical, both about the evidence and about the fitness of the complainant to prosecute. If it is convinced the evidence is sufficient, it might still doubt the court it serves has jurisdiction, and no-bill. If it is independent of a court, it could return the bill but also pick the court having jurisdiction. And if it had doubts about the fitness or resources of the complainant to prosecute, it could pick someone else to prosecute. That could be the public prosecutor if he convinced them he was willing, or perhaps some lawyer in the community who convinced them he was prepared to do the job well.
Now suppose the private prosecutor gets before the trial jury. They will know he is not a public prosecutor, even though he appears in the name of the sovereign, as a private attorney general. They might presume that a public prosecutor would never make invalid legal arguments or present witnesses he knew were lying, but would they presume that for a private prosecutor? We can expect they would not.
A false prosecution can itself be prosecuted. Malicious prosecution and abuse of process is not just about civil cases. A private prosecutor would be taking a risk if he didn't do everything right. More of a risk than is incurred by a public prosecutor as the system works today.
We can also expect that in a completely private prosecutorial system, there would emerge a pool of competing private prosecution firms who would compete for the business of prosecution, so that the grand jury could become a commission for awarding contracts to them, based on their bid amounts and reputations.
Upon being appointed prosecutor, the individual member of the firm would have the same official immunity as a public prosecutor, because that appointment makes him a public prosecutor, but a contractor rather than a government employee. That would extend to any members of his firm who assist, or to public employees who do.
The problem is not with official immunity for acting withing his lawful jurisdiction, provided that the government backs torts in respondeat superior. The problem is that the cronyism that develops within departments of government induces them to extend immunity beyond their jurisdiction, and that shields them from suit rather than only judgment. Opening the system to outsiders and competition would hopefully dispel that cronyism and mitigate the problem.
Abuse of process and malicious prosecution would exceed jurisdiction, and make the offender liable. Could be negligent, not just intentional.
Having a grand jury award defense contracts the same way would be a useful extension, although one might want to use a separate grand jury for that purpose. Another grand jury could hear any issues it chose to hear, and could even issue unsought indictments sua sponte (in which case it is called a presentment), but not override an indictment of another grand jury. If only asked to investigate suitable candidates to serve as defense counsel and choose one, however, that is probably all they would do. Might not be for a particular case. Might be to get a pool of multiple candidates that would then be assigned to defendants at random, with perhaps some choice of the defendant from among members of the pool.
The issue has been raised about whether such prosecution or defense contractors would have any immunity from prosecution for errors or omissions, as well as misconduct.
For performing the duties of a public office they would need to be treated identically, and the need to hold contractors accountable would tend to require that government employees be held accountable in the same ways. None of them should be treated as immune for even the smallest action outside their jurisdiction, from one moment to the next. That could come down to liability for three words in the same ten-word sentence without liability for the other seven.
Chief Justice Burger in his dissent to Bivens v. Six Unknown Agents suggested that government allow direct actions under respondeat superior, but he said that Congress should legislate that. That was based on the doctrine of sovereign immunity of the federal government, that it must consent to being sued, but that doctrine is incorrect in the way it has been extended from a monarchy to our republic, for which there can be no proper immunity from suit, only from execution of judgment on its assets. In other words, it should always be possible for anyone to sue government, but only collect from funds legislated to pay judgments. A suit serves other purposes than collecting damages, such as establishing the truth, and should not be barred just because the plaintiff won't be allowed to actually collect.
In civil cases there can be cross defendants and cross complainants. That could be extended to criminal cases. A criminal defendant might complain that the arresting officer assaulted and battered him, or the prosecutor entrapped him by extortion, fabricated evidence, or suborned perjury of witnesses. If the defendant filed a criminal complaint it should be handled like any other criminal complaint. It is even possible the two opposing cases could be heard in the same trial, as a kind of joinder. Probably more likely the court would grant a motion for severance of the opposing criminal complaints. Parties on both sides might wind up going to prison, and share a cell.
Court Declines to Address Private Prosecution, Constitutional Law Prof Blog, May 24, 2010 — A sharply divided Supreme Court dismissed cert. in Robertson v. United States ex rel. Watson as improvidently granted. The majority issued a one-line dismissal; Chief Justice Roberts wrote a 12-page dissent for himself and Justices Scalia, Kennedy, and Sotomayor.
Plea bargains and private prosecutors, James Bickford, SCOTUSblog, April 2nd, 2010 — Discussion of Robertson v. United States ex rel. Watson (08-6261), in which members of the U.S. Supreme Court seemed troubled by a District of Columbia law under which a private party can bring an action for criminal contempt. Then Solicitor General Elena Kagan (now associate justice of the U.S. Supreme Court) filed an amicus brief in support of private prosecution.
Privately Funded Prosecution of Crime in the Nineteenth-Century United States, Robert M. Ireland, The American Journal of Legal History, Vol. 39, No. 1 (Jan., 1995), pp. 43-58. Published by: Temple University — Discussion of the early history of private prosecutions in the United States.
Private Prosecution: A Remedy for District Attorneys' Unwarranted Inaction, [Unsigned] The Yale Law Journal
Vol. 65, No. 2 (Dec., 1955), pp. 209-234 — Discussion of private prosecution as a remedy for abuse of discretion by public prosecutors.
Delegation of the Criminal
Prosecution Function to Private Actors , Roger A. Fairfax, Jr., U.C. Davis Law Review, Vol. 43:411 — Government lawyers have never had a monopoly on criminal prosecution. Long before the establishment of the modern public prosecution norm, private lawyers prosecuted criminal cases on behalf of crime victims or the state. Even today, remnants of the private tradition in criminal prosecution remain in varying contexts where the government delegates prosecution authority to private lawyers. This Article argues that despite the prominent historical role of private lawyers in criminal prosecution prior to the development of the office of the American public prosecutor, it is rarely appropriate to delegate criminal prosecutorial authority and discretion to nongovernmental actors.