Let's Revive Private Criminal Prosecutions
Copyright © 1996 Jon Roland
Private Prosecutions brief
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
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 officials.
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 private prosecutions.
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
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
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
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.
Private Prosecutions brief
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
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.
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.
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
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
The Problem with Government
Prosecutors, Michael N. Giuliano 2015/05/13. Mises
Daily — Historical review of private prosecutions.
Prosecution, Wikipedia article.