« Fourth Circuit panel finds district court abused its discretion when denying compassionate release to elderly drug offender | Main | Another look at some of the post-Bruen Second Amendment uncertainty »

January 15, 2023

"A World Without Prosecutors"

The title of this post is the title of this new essay now on SSRN authored by Jeffrey Bellin.  Here is its abstract:

This Essay is part of a Symposium of responses to Bennett Capers’ provocative article, Against Prosecutors.  Capers proposes to (largely) abolish public prosecutors, a reform he suggests would slash the number of people incarcerated, particularly for drug crimes, and return the power of prosecution to the people.

Using data from my new book, Mass Incarceration Nation, this Essay suggests that Capers' proposal is unlikely to have the promised benefits because it targets only one of the many drivers of American criminal law.  Prosecutors matter. But they are one piece of a large and complex puzzle.  And most importantly, prosecutors are primarily reactive, responding to the laws enacted by legislators and the arrests made by police.  Capers’ proposal makes perfect sense if prosecutors are truly the one thing responsible for mass incarceration and the primary driver of drug enforcement.  If, however, politicians and police are also (or even primarily) pushing the “tough on crime” agenda, jettisoning public prosecutors becomes a murky policy prescription and may prove counterproductive.

January 15, 2023 at 11:35 PM | Permalink


I can only imagine how a system of private prosecutors would work. If anybody could bring criminal charges, there are certainly enough folks out there willing to pay money to bring frivolous charges against their enemies (perceived or actual). But I am not sure that most crime victims would be able to bring charges. There are reasons why, over the course of several centuries, the legal system moved away from a system of private prosecutors. While there are certainly flaws in the current system that can and should be fixed, the basic concept that the power of the State to punish people for misconduct should be in the hands of an accountable executive branch official is simply common sense.

Posted by: tmm | Jan 16, 2023 10:55:28 AM

One could have a system with a common pool of barristers who don't consistently represent the state or criminal defendants and instead are assigned randomly to cases, but somebody would have to administer them by deciding which cases need to have prosecutors assigned and which do not.

Posted by: ohwilleke | Jan 16, 2023 2:35:19 PM

We must have prosecutors if we are to live in an orderly and properly functioning society. The problem is that our institutions are only as impartial and sturdy as the people of whom those institutions are constructed. Far too often our institutions succumb to the biases and idiosyncrasies of people.

Prosecutors are not exempt from this occurrence. The danger is that they have this vast, seemingly unchecked, authority to wield the power of the state or federal government as they view necessary. Some approach their job and the level of power that they have been afforded with an honest dedication and a healthy zeal to protect the public. To them, I give all of the credit that they are due.

But what do we do with those who abuse this authority and ruin livesand de-stabilize families and communities in the process? People may believe that this does not happen often but the fact that it happens at all is problematic. There are swaths of society who have indeed been victimized by the overzealous prosecutor. To entrust people with this much authority is a dangerous proposition when we know that human beings have over and over proven themselves to be fallible.

How do we begin to fix this problem while assuring that public safety is not compromised? It appears to be the riddle of a lifetime.

Posted by: Eric A. Hicks | Jan 16, 2023 3:23:34 PM

This piece is based on the faulty and ridiculous premise that we incarcerate too many people.

Even when I was a college freshman, if I wrote a paper based on a premise I assumed, I would have failed it.

Posted by: TarlsQtr | Jan 16, 2023 7:54:18 PM


Well, this case wouldn't have been prosecuted . . . .

"But what do we do with those who abuse this authority and ruin livesand de-stabilize families and communities in the process? People may believe that this does not happen often but the fact that it happens at all is problematic. There are swaths of society who have indeed been victimized by the overzealous prosecutor. To entrust people with this much authority is a dangerous proposition when we know that human beings have over and over proven themselves to be fallible."

So what would you do to the prosecutors who prosecuted Bogdan Vechirko?

Posted by: federalist | Jan 17, 2023 12:01:27 PM

It would be foolish to castigate to the prosecution's decision to offer Mr.Vechirko the continuance without prosecution plea agreement without all of the facts. From a topical perspective, the case looks horrible. But it appears to be more nuanced than the media reports. So, I am willing to give the prosecution the benefit of the doubt because I have no reason to believe that he/she reached the wrong conclusion in this case.

Posted by: Eric A. Hicks | Jan 17, 2023 1:42:49 PM

How can you conclude, Eric, that Vechirko should have been charged with anything??

Posted by: federalist | Jan 17, 2023 2:24:30 PM

Well, again, I am not privy to the facts of the case federalist. I am merely responding to what you asked about what should be done to the prosecutors who brought charges against Mr.Vechirko.

If the criminal justice system is to work at all, we as the public must have some degree of confidence in prosecutors to do the right thing. So in furtherance of that general presumption that prosecutors conduct their job within the parameters of ethics, I will merely assume that the facts warranted that Mr.Vechirko be charged with some criminal act. So my conclusion is based on that general presumption.

After all, if we can't have the necessary confidence to embrace that general presumption, where does that leave us?

Posted by: Eric A. Hicks | Jan 17, 2023 3:11:53 PM

There's the videotape of Vechirko's supposed crime . . . . but hey, libs love prosecutors when they are protecting their own or furthering the interests of Democrats---ever wonder why none of the usual suspects utters a peep about the prosecution of the people who found the diary that Ashley Biden abandoned?

Posted by: federalist | Jan 17, 2023 3:27:20 PM

more fun:


Posted by: federalist | Jan 17, 2023 3:28:45 PM

Well, you would probably be surprised to know that I rank Bill Clinton as one of the worst Presidents. And, FYI, I am not a liberal. I think liberals and conservatives are full of the proverbial "it." I have no political party---probably the wisest decision of my life.

Posted by: Eric A. Hicks | Jan 17, 2023 3:32:43 PM

The problem is not charging. The problem is the behavior that provokes the charging.

Posted by: Bill Otis | Jan 18, 2023 2:46:37 AM

I am an anti-statist.

Posted by: federalist | Jan 18, 2023 9:10:02 AM


Wow. Gotta love those prosecutors.

Posted by: federalist | Jan 18, 2023 10:16:14 AM

Neither liberal nor conservative government officials are treated in the manner that you or I would be for a similar transgression. I find this problematic.

Liberals and conservatives rail against the 'elite.' But in the end, it is the common people like you and I who are being played. They criticize each other for playing by different rules but never acknowledge that their rules are different than those that the common folk live by. I refuse to enroll in their game.

Posted by: Eric A. Hicks | Jan 18, 2023 11:40:19 AM


Flynn got doctored 302s.

Posted by: federalist | Jan 18, 2023 1:36:11 PM


I would love to see a thread or two on such a huge and interesting legal matter, which just happens to fit the mission of this blog.

Doug has been silent.

Posted by: TarlsQtr | Jan 19, 2023 11:14:34 AM

Tarls, are you referencing a sentencing matter or something else? I am silent on a lot of topics, and I am unclear as to exactly what “interesting legal matter” you are referencing -- Flynn, the Biden family? -- since federalist often brings up matters that seem to me to be more interesting politically (like his assessment of Trump’s merits) than legally.

Posted by: Doug B | Jan 19, 2023 11:28:02 AM


For one, I would love threads about the abuse of attorney client privilege by oatmeal for brains Joe, the Federal laws regarding having such documents, a politicized FBI and its impact on public confidence, etc. I think they all fit this blog’s mission, with the caveat that you are the ultimate arbiter of that.

Posted by: TarlsQtr | Jan 19, 2023 2:05:53 PM

Thanks for the clarification, Tarls. I know very little about attorney-client privilege law/policy issues, especially for constitutional actors like the Prez. I know even less about the law and policy of confidential documents (though I have seen reports that too many docs get labeled confidential). I also tend not to follow closely investigating agencies and agents unless/until their work starts impacting pleas and sentences. And, absent actual indictments with potential sentencing consequences, these matter all seem not quite ripe for useful coverage on this blog at this point.

Because there are lots of other places to discuss legal "hot topics" and even more places to discuss politics and the politization of law, I generally try to stick to sentencing/punishment issues (mostly in the US), and necessarily gravitate toward those which I find most interesting/engaging and that I sometimes know a little bit about so I can add a bit of possible value.

As you know, I try not to censor or control topics covered in threads, and so you and federalist and all others are welcome to use the comments here to go off on the topics that interest you most. And if you can flag sentencing issues related to these "hot topic" matters, I will try to bring my own perspective too them.

Posted by: Doug B | Jan 19, 2023 2:22:31 PM

We can talk about the feds prosecuting those who found Ashley Biden's diary and sold it . . . . you know, Doug, she stated in that diary that Joe Biden took showers with her. Yuck.

Posted by: federalist | Jan 20, 2023 11:36:53 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB