Last week, I blogged in support of reviving private criminal prosecutions. The state’s monopoly on bringing criminal charges arose late historically and prosecutors have often failed to show victims the responsiveness they deserve. My piece quickly met with pushback, especially from libertarians concerned about expanding the criminal legal system’s overreach and coercion using the guise of victims’ rights. I write again to offer a clarification, a qualification, and a challenge.
Clarification: Marsy’s Law has problems
In the original post, I cited Marsy’s Law for All as an example of a prominent victims’ rights movement. This received pushback from those who argued that victims’ rights measures often come at the expense of protections for defendants. That criticism is well-taken. To be sure, Marsy’s Law for All has done an excellent job organizing a nationwide movement in protest of prosecutors sidelining victims, failing to inform them of important court dates, shutting them out of discussions about how cases are resolved, and even failing to notify them when dangerous offenders are released from custody.
However, I do not categorically endorse Marsy’s Law, their signature model legislation. Bills enacted under that name have sometimes restricted public access to legitimate information about alleged crime victims, including officers who shoot people while on duty. They are cited by prosecutors as justification for referring to people as “victims” at trial—the very point many trials exist to determine.
Even worse, some Marsy’s Law varieties punish defendants for problems that are prosecutors’ responsibility, such as by enshrining a right to speedy prosecution. They can excuse keeping defendants from receiving information they need to prepare their cases. And when judges won’t let prosecutors override victims’ wishes in plea negotiations or sentencing, victims’ rights can become yet one more lever in a system that already coerces defendants into pleading guilty.
Victims should have the right to demand that prosecutors give them updates and hear them out—not punish defendants for prosecutors’ shortcomings. One way of doing that would be removing prosecutorial immunity and letting victims sue prosecutors who violate their rights. Another, relying on the market forces that libertarians embrace, is the proposal from my first post: let victims choose which attorneys handle their cases (just as defendants, including indigent ones, should be able to).
Qualification: There need to be safeguards against bad prosecutions regardless of who brings them
A different line of concern is that reviving private prosecutions would open the floodgates to more unfounded prosecutions, judicial harassment, and unjustified punishment. This criticism does not address the opposite problem of a lack of diligently and ably pursued criminal charges that are proper.
Regardless, it is a fair concern, but one that the law reacted to over the many years when private prosecutions were common. First, prosecutorial immunity did not exist. Whether public or private, prosecutors who brought charges maliciously—which the law defined simply as without probable cause—were civilly liable to those they accused wrongly. Restoring this standard for all varieties of prosecutors would protect against frivolous accusations without forcing victims to rely entirely on a state monopoly in their pursuit of criminal justice.
Another important safeguard that could take on new life in a system with private prosecutions would be the grand jury. The Constitution requires federal felony cases to be indicted by grand juries. For a long time, these came to be seen as mere rubber stamps. However, over the past year, they have shown a willingness to check prosecutions that they deem overzealous or motivated by politics rather than justice, including the case the Department of Justice brought against a protester for throwing a Subway sandwich at a government agent. It is possible that grand juries would automatically meet private attorneys’ requests for charges with more skepticism than those brought by government prosecutors.
But if simply needing to go before ordinary citizens is not enough to weed out bad prosecutions, then the problem lies with the current problems afflicting the grand jury system. These can be remedied. As a Cato policy analysis argued years ago, reforms should be enacted so that witnesses and defendants have the right to appear before grand juries together with counsel. The prosecution can be required to present exculpatory evidence and the defense should be able to do so if it chooses. Lawmakers can also extend to grand jury proceedings various standards that apply to evidence in other court hearings.
The inability to sue prosecutors who bring baseless accusations and the flaws in the grand jury system already worsen the criminal legal system. Reforming them would help safeguard people against unjustified charges while being compatible with private prosecutions.
Challenge: What about victims?
Critics’ concerns about private prosecutions are reasonable, but they hold true for any sort of prosecution. Liberty can be impaired by a lack of protection against crime, and the challenges that come with private prosecutions are not a reason to consign victims’ cases to a monopoly of government prosecutors. Libertarians, including me, will often have much to say against abuses committed by prosecutors and law enforcement. I am a former public defender and most of our criminal justice briefing is filed on the side of defendants. But we also have perspectives, informed by our understanding of the importance of markets, competition, choice, and accountability, that offer benefits for victims.
My question back to those who are still skeptical is this: Why are we telling crime victims, and them alone, that they have to trust the state?