Private

In the United States, it is usually given that the authority to prosecute criminal matters only belongs to the government. Justice Clarence Thomas put this argument in his agreement in Trump against United States (2024), the developed decision of the Supreme Court, which significantly expanded the president's immunity. With regard to the appointment of Jack Smith as a special consultant for the investigation of Donald Trump's alleged crimes during his first term, Thomas wrote: “A private individual cannot pursue anyone criminal under criminal law, let alone a former president.”

Professor Emma Kaufman disagrees. In a new article “The past and persistence of private law enforcement”, published in the November 2024 edition of the November 2024 Law Review of the University of PennsylvaniaKaufman traces the largely forgotten history of private law enforcement in the USA, shows that private law enforcement still exists and suggests how this persistent phenomenon could change the conversation about how a broken criminal justice system can be reformed.

Kaufman taught the origins of the public prison system and also studied the history of the public police forces, both of which came in the 19th century. She was also familiar with contemporary debates about the privatization of both units. A few years ago, however, she realized that she knew little about the development of a third part of the criminal justice system: the public prosecutor.

“When did the public prosecutor became a state component of the criminal justice system?” Asks Kaufman. “And can you outsource this? [function]? Because you can outsource other parts of the system…. I was curious to fill out the institutional image of the criminal law system. “

The idea that criminal law is properly classified as public law – because crimes affect the entire community – are at least due to Roman law. But until the end of the 19th century it only started a truism in the late 19th century, Kaufman stated. Private law enforcement was widespread in the United States up to this point. For example, Harvard, John White Webster's murder professor, led to conviction and slopes from a murder professor by Harvard, John White Webster. As a lawyer in Illinois before he became president, Abraham Lincoln pursued rape and murder cases.

What led to the shift? The expansion of the franchise in several countries made it easier for the public elections, including the public prosecutor's office, writes Kaufman. Almost three quarters of the states elected criminal prosecutors until 1860, which increased their awareness as civil servants. Shortly afterwards, a wave of state court holidays began, the priority of the prosecutors to private individuals.

Kaufman's article contains two potential explanations for relocating the idea of ​​a state monopoly for prosecution. It could have been a reaction against brazen crony in the government – the courts decided that parties could not pursue this with a financial interest in one case – or that this could be due to the crime problems from the rapid urban growth. “The topic that goes through these stories is that the public prosecutor's office at the end of the 19th century as an impartial civil servant and as the only actors with the right job for the exercise of criminal power,” Kaufman writes.

At the same time, public police prolifly prolifly prison systems during this time. “The public prosecutor's monopoly for criminal complaint consolidated the police as the main entries of criminal laws and prison as a tasty appeal for violations of the penal code,” explains Kaufman.

According to Kaufman's article, the idea of ​​a government monopoly for law enforcement made two important conceptual changes in criminal law. The first was the public prosecutor's office. The regulation of criminals by malicious public prosecutor's claims that were regularly employed against private prosecutors made it believed that the public prosecutor's office was quasi judicial civil servants who needed immunity to fully form their mandate. The second shift was a new theory of standing. The previous idea that a citizen was interested in pursuing criminal proceedings in the interest of public order gave way to think that only prosecutors could do so.

Nevertheless, private law enforcement in the USA has never really disappeared, Kaufman argues. In seven states, it is still legal that a non -state actor initiates and argued criminal proceedings. (In Oklahoma, for example, anyone who opens up objections to adultery can initiate a crime in this state – not only the spouse concerned.) And in these states and 20 other private prosecutors, in addition to public cases, have been pursuing cases with the approval of a district lawyer, or directly in the large equipment.

Many of these countries limit the private public prosecutor to lower crimes and pre -judges. (Pennsylvania, where private prosecutors can pursue and accuse a crime, is a remarkable exception.) The prevalence of private criminal persecution is far greater when it comes to the outsourcing of the criminal prosecution of public prosecutors to lawyers in private practice that arises as an expansion of the state.

While such agreements are not uniformly or well documented in all jurisdiction [she] Could find “ – to find conclusive evidence of contract tracking in 31 states, although practice is probably even omnipresent. The public prosecutor is largely used for lower crimes, but is by no means exclusively, according to Kaufman-in especially in rural areas in which prosecutors are not inexpensive. In some cities in Montana, private companies take care of all criminal persecution. Contract lawyers quotes criminal offenses in Idaho's greatest jurisdiction.

“The governments also stored law enforcement to manage controversy and expand state capacity,” explains Kaufman in their article. “Some municipalities are stored by the persecution of sexual crimes and crimes committed by the police to avoid the political and financial burden of” complex “cases.” In Georgia and Louisiana, death penalty are outsourced. “Contract contracts, including the description of the discretion, are expressly relocated to private individuals,” Kaufman writes.

The statistics Kaufman has collected a striking portrait. She notes that according to applicable law, about three quarters of the nationwide crime dact can be persecuted privately. Even if fewer crimes are excluded from the count, more than half of US crimes and offenses could be treated by private prosecutors. “The criminal legal system tolerates a lot of private law enforcement than the story of the state monopoly implies,” Kaufman writes.

What are the effects of the contradictions and complexity that Kaufman has uncovered in the persecution of the neglected history of private law enforcement in the USA? On the one hand, the claim of judiciary Thomas is that “a private citizen can not pursue anyone in criminal law, let alone a former president” – not to mention that judge Aileen Cannon the dismissal of Trump's charges due to the possession of the documents of the special consultancy was illegal. The claims of both lawyers come from the uniform executive theory of conservatives, which claims that law enforcement is an executive authority. A more differentiated view of private law enforcement weakens these arguments. On the other hand, liberal protests against the privatization of criminal justice are undermined even without a strict government monopoly.

“The public and private enforcement has always worked side by side in the criminal law system, even if it is about the criminal law of criminal law, the core country is said to be the core country of state control over criminal law,” Kaufman writes. “As soon as this reality becomes clear, the current debate about privatization seemed to be as if it were being limited to the options for criminal proceedings and exhaust what it means to have a legitimate system of criminal law.”

Kaufman does not take a strong normative position on how to improve the American law enforcement practices, although it mentions some options that a more differentiated dialogue could open up. Charges could really be public. It could also look more like the public defense. Several private providers compete for community contracts, which causes incentives for quality and innovation.

“As soon as you see how different the actual models for law enforcement in the United States are below the surface, you have a really robust debate about the best institutional design to try to tame some of the hardness and injustice of the criminal justice system,” says Kaufman. “And I still don't have the answer about which of these models will achieve the best results, but I think that's a really exciting place for us.”

Posted February 28, 2025