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February 11, 2023

"Against Prosecutors" and a lot of notable responses thereto

I recall reading a few years ago, but maybe not blogging about, I. Bennett Capers provocative 2020 essay titled simply "Against Prosecutors."  Here is part of the essay's introduction:

What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)?  More radically, what would it mean to turn away from state-controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves?

This Article attempts to answer these questions. It begins in Part I with the enormous, monopolistic power public prosecutors wield.  But this power is not inevitable. Indeed, public prosecutors are not even inevitable. This is the main point of Part II, which surfaces the rarely discussed history of criminal prosecutions in this country before the advent of the public prosecutor, when private prosecutions were the norm and in a very real sense criminal prosecutions belonged to “the people.”  Part II then demonstrates that our history of private prosecutions and the turn to public prosecutions is more than just a curious footnote, as this very history has, in turn, shaped criminal law and justice as we know it. Part III, in many ways the core of this Article, makes the argument for turning away from public prosecutors and restoring prosecution to the people.  It also returns to the question that motivates this Article: what benefits might accrue if victims had the option to pursue criminal charges through private prosecution or public prosecution? Part III argues there would be several benefits, including democratizing criminal justice and, quite possibly, reducing mass incarceration.

This essay is fresh in mind in part because I just saw an on-line symposium in which seven scholars have written their own essays in response (and with the author providing a final word). Here are links to these new works:

Angela J. Davis, "The Perils of Private Prosecutions"

Benjamin Levin, "Victims’ Rights Revisited"

Carolyn B. Ramsey, "Against Domestic Violence: Public and Private Prosecution of Batterers"

Corey Rayburn Yung, "Private Prosecution of Rape"

Jeffrey Bellin, "A World Without Prosecutors"

Jenia I. Turner, "Victims as a Check on Prosecutors: A Comparative Assessment"

Roger A. Fairfax Jr.. "For Grand Juries"

I. Bennett Capers, "Still Against Prosecutors"

February 11, 2023 at 01:04 PM | Permalink


I haven't read all these essays and am not going to, because a couple of broader points need to be made to re-frame this whole bizarre idea. First, prosecutors are simply agents of the state, and the state (whether you like it or not) is the agent of the people. So saying that we need to eliminate prosecutors to give the justice system "back to the people" is nonsense.

Second, the reason we make criminal law the province of the state (while civil law and tort remedies are the province of private parties) is PRECISELY to avoid private vengeance, feuds and vendettas. If you think the state provides a poor measure of due process and reasoned dispute resolution, try all that stuff and see how you like it instead.

Actually, the human race did try it, didn't care for it, and for that reason developed government, and eventually democratic government, to replace it. I personally would prefer not to go back 10,000 years.

The people who've forgotten this, or want to pretend they've forgotten it, are just a bunch of left wing crackpots.

P.S. While we're doing away with prosecutors, should we also do away with defense lawyers?

Posted by: Bill Otis | Feb 11, 2023 2:43:18 PM

God, I hate it when Bill is right.

Posted by: shg | Feb 11, 2023 6:03:37 PM

I find it a refreshing change of pace, shg. ;-)

Posted by: Doug B | Feb 11, 2023 6:29:17 PM


Posted by: shg | Feb 11, 2023 6:55:12 PM

Doug and shg --

Gads, it's unfortunate that you two spend gobs and gobs of your time hating. Just work with me over at https://ringsideatthereckoning.substack.com/about and I'll try to help out. Or of course I'd be happy to have you in class, "Conservatism in Law in America."

Posted by: Bill Otis | Feb 11, 2023 8:12:47 PM

Odd that doing away with prosecutors raises this sort of response when the modern prosecutors' dedication to the task of doing away with jurors doesn't draw a mention. When 2% or federal criminal trials actually make it to citizen juries the public/private power line has already traveled quite a distance.

Posted by: James Doyle | Feb 11, 2023 9:50:59 PM

The reason we have so many plea bargains is that the defense wants them because they know they'll lose at trial.

Posted by: Bill Otis | Feb 11, 2023 10:52:13 PM

I think we need prosecutors for the reason Bill stated.

I do wish we could change the incentives so that prosecutors suffer consequences when they choose not to notice they have the wrong person. As Bill once pointed out to me, this is not so common at the Federal level. But at the State level, it happens all the time. That's a problem.

Posted by: William C Jockusch | Feb 12, 2023 8:42:30 AM

I would be eager, Bill, to sit in on "Conservatism in Law in America." Do you cover all "conservatism" or do you lean into criminal justice topics? Can you share a link to your syllabus?

Do you cover recent Second Amendment jurisprudence? The "war on drugs"? Originalism vs Common-Good (aka living) Constitutionalism? Inquiring minds want to know.

Posted by: Doug B | Feb 12, 2023 11:32:40 AM

Doug --

I'll look for the syllabus. Criminal justice is a very minor part of the course. We haven't done the recent 2A cases but might include Bruen next time. Also we don't do drug law, although some students have selected that as their paper. Originalism is a big topic, certainly as opposed to "living Constitution" theory.

It's a writing requirement seminar. We get booked up and cap it at 12 students.

Posted by: Bill Otis | Feb 12, 2023 4:31:13 PM

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