How is criminal law distinct from civil law? Standard criminal law textbook answers focus on the unique role of the state in criminal law. Violations of the criminal law are presented as actions that harm the state. The state is said to maintain a monopoly on punitive power and can deploy it in unique ways to redress these harms. In a democracy, the exercise of punitive state power purportedly channels the will of the people. These propositions are offered as justifications for the imposition of punitive sanctions that have no identical counterparts in the world of civil law, including imprisonment and even death.
Many of these fundamental propositions do not entirely hold up under close scrutiny. The state’s monopoly on punitive power has been heavily outsourced to private actors. The flaws of political and representative processes in the U.S. (and within U.S. states) mean that criminal law is an imperfect expression of the will of the people, with the result that criminal law often both mirrors and replicates the discriminatory impulses of political (and racial) majorities. Immigration detention and civil commitment both undercut the truism that incarceration is unique to the criminal context. But what of criminal prosecution? Should we understand it as the unique province of the government? Standard accounts, and decades of case law, tell us that the answer is yes. But in her immensely readable and engaging article The Past and Persistence of Private Prosecution, Emma Kaufman provides a different, and very intriguing, answer to that question.
Kaufman observes that recent scholarship has raised lots of questions about the role of private actors in policing and prisons. In contrast, the bulk of the scholarly literature presumes that prosecution retains a uniquely public character. With this article, Kaufman joins a small handful of other scholars exploring the existence and significance of private prosecutions. She notes that private prosecution is still allowed in a majority of U.S. states, and that only a quarter of criminal cases nationwide “must, as a matter of law, be managed by a public prosecutor.” (P. 92.)
In the first part of her article, Kaufman pieces together a historical account of the nineteenth century rise of the state monopoly story. Using primary and secondary course materials, she concludes that at the time that states and localities created pubic prosecutors’ offices, they did not equate this move with an assertion of a state monopoly on prosecutorial power. Kaufman explores how the distinction between these two ideas was blurred in the late nineteenth century through doctrinal and descriptive oversimplifications. (P. 110.)
In the second part of the article, Kaufman draws on a diverse range of sources to explore the persistence of private prosecution. She notes that seven states continue to allow for private prosecutions of some crimes, and that another twenty cognize a significant role for private actors in prosecutions. (Pp. 128-29.) She further observes that the prevalence of private prosecution is even greater when one accounts for the degree to which prosecutorial powers continue to be outsourced to private actors. (Pp. 131-32.) Finally, she reminds the reader how contempt and qui tam proceedings operate as additional examples of private forms of prosecution. (P. 138.)
Kaufman traces out many doctrinal implications of the continued existence of private prosecution in the U.S. She notes that it casts doubt on (or at least troubles) the doctrinal underpinnings of double jeopardy’s “dual sovereignty” notion, exceptionally broad prosecutorial disclosure obligations, Younger abstention, and Section 1983’s state action doctrine. (P. 97.) It also undercuts objections that conservative jurists have raised to the contempt doctrine in cases like Robertson v. United States ex rel. Watson, 560 U.S. 272 (2010) (Roberts, C.J., dissenting). Those objections are built upon the idea that criminal prosecution is exclusively public and exclusively the domain of public prosecutors. In the same way, Kaufman notes that the continued salience of private prosecution undercuts core assumptions of public prosecution undergirding Judge Cannon’s opinion in the Trump documents case and Justice Thomas’s concurring opinion in the Trump immunity case. (Pp. 103-05.) Her argument also raises questions about the doctrinal underpinnings of prosecutorial immunity and plea bargaining. (P. 93.) If the role of the prosecutor is not solely or uniquely public, then the extraordinary insulation that courts have accorded prosecutors’ decision-making and professional processes are more difficult to justify.
But Kaufman argues that the implications of her argument extend beyond these (already quite significant) doctrinal matters. She asserts that it has potential to reframe broader discussions around the reform of criminal legal systems.
First, she notes that the persistence and viability of private prosecution eliminates the need to equate private prosecution with victim-led prosecution. As she puts it, “nineteenth-century criminal law adopted a more capacious and in some ways much more radical notion of standing than one that simply allows victims to prosecute crimes.” (P. 93.)
Second, Kaufman suggests that the recentering of the possibility of private prosecution can allow for a more expansive thinking about appropriate remedies for criminal harms. (P. 93.) Specifically, she maps the ways in which the “public” prosecutor legitimated the police in the late nineteenth century, (P. 114.) As she explains it, “[t]he emergence of the public prosecutor with a claim to control over the criminal docket empowered the police and put them in their proper place as the first movers in a coordinated system of state-run criminal law enforcement.” (P. 115.) The notion that prosecution was a uniquely public function also legitimated the unique use of prison sentences to punish. Late nineteenth century legal opinions reflect judicial unease with private actors sentencing people to serve terms in prison. Public prosecutors assuaged this unease, and made it “possible for prison to be normalized as the natural end of the criminal process.” (P. 117.) Questioning assumptions about the publicness of prosecutions therefore allows us to question the extraordinary punitive powers that flow out of those assumptions.
Third, Kaufman argues that rethinking the accuracy of legal and descriptive claims regarding the public monopoly on prosecution also can enable new and creative approaches to the question of criminal law standing. (P. 143.) It need not just be the direct victims of crime who are empowered to enter the prosecutorial sphere, and there may be other, better options. (Kaufman provocatively points to the fact that Jeremy Bentham supported a hybrid system of concurrent public and private prosecution.) (P. 147.)
Finally, by questioning the unthinking classification of criminal law as purely public law, Kaufman generates new pathways into and around abolitionist and reformist debates that favor reducing public investment in criminal punishment, and that urge a turn toward different forms of community-based harm interventions. (P. 148.) Kaufman does not purport to offer concrete alternatives to current systems. But by questioning the link between “categorizing criminal law as quintessential public law” with a “normative commitments to good governance, progressive politics on crime control and a liberal philosophy of the state,” (P. 145), Kaufman encourages us to ask different questions about what we are doing now, and to use this new empirical understanding to guide us in thinking about what might be possible in the future.
