Brainstorming The Prosecutorial System: Private Prosecutors.

A fire and some heavy holiday reading – courtesy of a friend – awaited me tonight when I arrived home from jujitsu. The real conflagration, however, did not get lit in my formerly unlit fireplace that accompanied so many of my musings. It got lit in a text thread when I asked him how he could possibly desire to advocate for the government in a certain hypothetical, given the questions that were asked.

He likes a challenge. So do I, but I am not that sick in the head. Hey Mom, there are crazier people in the world than me!

Our text exchange admittedly got me to thinking about how to best impose checks on an overzealous state that wants to prosecute and stack the deck in its favor as often as possible. Grand juries and jury nullification immediately leaped to mind, but I have a better chance of reaching Mars by flapping my arms than they do of coming back in vogue.

What about private prosecutors?

Public prosecutors, at least in our Anglo-American tradition, were an invention of colonial America unless you count the Dutch’s imposition of a public prosecution system on their territories in New York, New Jersey, Delaware, and Pennsylvania before the British took control of those territories.

Prior to the advent of public prosecution in America, the British colonies followed the English system of private prosecution. Each colony had an attorney general who prosecuted only those cases that were of special interest to the government. Otherwise, criminal prosecution usually lay with the victim of the crime with the colonial attorney general reserving the power of filing a writ of nolle prosequi, or a writ to dismiss the private prosecution entirely.

This system of private prosecutions obviously had its infirmities. If you did not have the financial means to hire a private attorney, you often failed to persuade a grand jury to return indictments against the person who allegedly victimized you. If you did have the financial means to prosecute your cause through an attorney, the judicial system became one that you could leverage for extortion.

As the colonial population increased, county courts replaced state circuit courts, and county courts gave rise to county attorneys – i.e., Connecticut’s transition to the system in 1704. County attorneys did not immediately replace private prosecutions, but they did expand public prosecutions, supplanting private prosecutions in many cases and ultimately developing into a system of pure public prosecution.

Private prosecutions, however, persisted well into the 1900s, and some jurisdictions still maintain some form of private prosecution. The United States Supreme Court did not completely terminate private prosecutions until 1973 in Linda R.S. v. Richard D. Colorado, Missouri, Minnesota, and North Carolina followed suit shortly thereafter. New Hampshire, New Jersey, Pennsylvania, Rhode Island, Texas, and Virginia all have versions of private prosecution. New York law is silent on the subject.

Thus, the concept of private criminal prosecution is not novel, and it is actually more deeply rooted in our nation’s history and tradition – or legal tradition for that matter – than public criminal prosecution is. The real question then is whether a workable system that avoids the infirmities that caused our nation to shift away from private prosecutions can be devised.

I think that one can be devised.

In my view, any realistic proposal for a private criminal prosecution system begins with the concession that our society, our laws, and our criminal procedure are not as simple as they were in colonial America. A system of criminal prosecution will require professionals – lawyers – to make it workable, and lawyers cost money that most people don’t have. Simply spitballing at this point, Connecticut’s federal court requires every member of its bar to enroll in a system that assigns them to represent the poor in civil suits. There is no reason why a similar system cannot be adopted for prosecutions – only with state funding for the attorneys’ time and effort.

The frivolity and extortion problem presents the next issue. Grand juries existed for a reason though, and we should renew our confidence in their use. If an accusing party cannot pass the sniff test of a grand jury, he will not be allowed to proceed with a prosecution. Revamps to grand jury procedure would likely be necessary to make its new role more effective and efficient, but the framework already exists for purposes of private prosecutions. Furthermore, the state could still retain its nolle power to get rid of frivolous cases and its power to intervene in a subset of serious cases – the seriousness of which we define by statute.

I have sketched the how. Let’s talk about the why. Why would private criminal prosecutions be an improvement over our current system of public prosecutions?

Every day, we see stories of overzealous and unethical prosecutors who stack criminal charges to coerce plea bargaining and conceal favorable evidence from defendants even through their trials. What we don’t hear every day is that those prosecutors enjoy absolute immunity for their conduct by virtue of carrying the title of prosecutor. A private attorney or a private party will not enjoy that immunity. If they act unethically, there will be a consequence and a remedy for their victims.

There is historical precedent for a system of private criminal prosecution. While I am not delusional that it will return any time soon, I think we would do well to have a candid conversation about whether it would serve us better.

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