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The Past and Persistence of Private Prosecution

The Past and Persistence of Private Prosecution

Emma Kaufman

Volume 173 Issue 1 2024
Article Criminal Law;

Criminal law is typically understood as the exclusive province of the government. Conventional wisdom holds that crime harms the public rather than any individual. Crimes are prosecuted by government officials, who have a monopoly on charging and settling criminal disputes. Criminal infractions lead to punishment imposed by the state. Crime, in short, is the government’s domain, and criminal law is a form of public law. This theory of the field runs deep and animates a wide range of ideological arguments, from progressive opposition to private prisons to conservative efforts to expand presidential power.

This Article questions and aims to clarify the claim that criminal law is distinctively public. It does so by examining the long, odd history of private prosecution. The idea that the state has a monopoly on criminal prosecution took root in the late nineteenth century, after the birth of police and prisons. Government control of the criminal docket was the central piece of a broader effort to entrench public policing and justify prison as a form of punishment. Yet private prosecution persisted in various forms after its supposed demise. Shortly after the state takeover of prosecution, governments began to outsource their criminal dockets to firms, giving birth to a contractual, privatized model of criminal law. And in the lowest rungs of the criminal justice system, where most criminal law unfolds, private parties retained the power to file and litigate criminal cases.

The government’s control of criminal law is thus more tenuous than doctrine and theory would lead one to believe. The state monopoly on prosecution is an ideology, not a rule. This observation upends settled narratives about the development of American criminal law. The history of private prosecution also suggests some tantalizing possibilities for reform, from alternative enforcement regimes to remedies other than imprisonment. By exploring a rarely studied phenomenon, this Article asks whether the country’s unbroken record of outsourcing criminal power could be leveraged to reimagine a failed justice system.

Professor of Law, New York University School of Law. I am indebted to Adam Cox, Daryl Levinson, and Dan Richman for conversations that shaped this project from its inception. For feedback on drafts, I owe thanks to Rachel Barkow, Justin Driver, Daniel Francis, Barry Friedman, Scott Hemphill, Don Herzog, Lucy Kaufman, Sandy Mayson, Trevor Morrison, Erin Murphy, Nick Parrillo, John Rappaport, Judith Resnik, Cristina Rodriguez, Sarah Seo, Reva Siegel, and participants in the Criminal Justice Roundtable and law faculty workshops at Cornell, the University of Minnesota, N.Y.U., the University of Texas, the University of Virginia, and Yale. Over multiple years, a group of excellent research assistants—Rachel Ellman, Josh Goldstein, Ben Healy, Ashe Huang, Danny Levin, Rachel Maremont, Sam Orloff, Danny Pita, Djuna Schamus, Emma Schwartz, and Hannah Walser—helped me compile the sources for this study. Clement Lin provided invaluable assistance with historical materials, and the University of Pennsylvania Law Review offered incisive and generous edits. I am particularly grateful for Gaelin Bernstein, whose dogged, meticulous work to uncover the lesser-known corners of the criminal legal system helped get this project off the ground.

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