Justice Reform: Pick the Prosecutor

The prosecution is the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law. The problem is the prosecutor represents the government—not the victim. Just like every other occupation, orientation establishes the goals and incentives.1

Today, there is widespread dissatisfaction with the system of prosecution. Victims2 and accused defendants are unhappy with the system for a number of reasons, but the chief reason is: judges and juries often get the facts wrong or misapply the laws.

This is especially true in domestic violence. Victims are happier when they participate in the criminal process.

State Prosecution Origins and Incentives

In early England, and still today, crime victims can hire a lawyer to prosecute criminal charges against an accused person. That right allows for “private prosecution.”

In the 1700s, the concept of the state enforcing criminal law emerged. The U.K. and European countries established police forces, and the government began prosecuting violators.

That sounds like a clever idea until we consider the incentives it creates. Today, government prosecutors receive incentives to get convictions. There is a saying that any prosecutor can convict the guilty, but it takes an extraordinary prosecutor to convict the innocent. Sadly, this cruel joke is too often true.

The incentives can be cash bonuses to prosecutors based upon the number of convictions obtained, not justice done. For prosecutors, convictions have become the goal—not finding the truth of what happened. Prosecutors do not look for evidence of the accused person’s innocence. Too often, innocent people go to jail, while the prosecutors receive bonuses and promotions—justice is not done.

In some states prosecutors are often elected, so the incentives can be endorsements and donations. Curiously, police unions provide both, as do political and civic organizations. Other incentives include career advancement or transfers to higher paid, more prestigious offices. Or just admiration from fellow prosecutors, management and the public. You often hear prosecutors boast of “conviction rates”—you never about “justice rates.”

It is true that most accused persons turn out to be guilty of a crime, and prosecutors work appropriately to prosecute, convict, and jail them. The focus of this article is upon when the system doesn’t work justly.

When Convictions Become Devil’s Bargains

To get convictions, prosecutors use many techniques that do not include a trial. Prosecutors use heavy pressure to get accused persons to plead guilty to crimes they may not have committed—and it is quite legal.3 Plea bargains are cheaper and easier than trials, they keep the conviction rate high and make the government and the base happy.

To get a guilty plea, prosecutors often terrify the accused. Prosecutors threaten to charge the person with as many crimes as they can conjure up. That is called “overcharging” or “sandbagging.” The accused person thinks the prosecutor could maybe prove one of the charges, so the accused will plea bargain to avoid the risk—even if he didn’t commit the crime.

Prosecutor pressure can be so intense that people plead guilty to crimes they did not commit. General Michael Flynn, as a recent example, pleaded guilty to a crime to avoid the supposed other crimes the prosecutor was trying to allege. He comes to mind because it is a contemporary case, is but one example. A case outside of the political spotlight occurred in 1991, when the Maricopa County sheriff arrested five men for murdering nine Buddhist priests near Phoenix, Arizona. All were innocent.

“We hammered on those guys until we broke their will, it was as simple and bad as that,” the sheriff’s deputy said. “After a while, they were willing to say anything.” Four confessed to murdering the nine monks. One of the men had never even been to Phoenix.

Prosecutors keep people in prison who they know to be innocent.4 Even if exonerated, the innocent have little or no recourse for their wrongful conviction.5 In short, prosecutors can commit ethical and legal misconduct virtually without fear of accountability.6 Prosecutors have immunity and rarely suffer any penalty, and when they do, the penalty is typically minuscule compared to the damage they inflicted.

If threatening is not enough to bludgeon the victim into pleading guilty, prosecutors sometimes threaten to investigate and prosecute families, friends, and business associates. Exactly that took place in the prosecution of General Michael Flynn. The FBI and DOJ threatened if he did not plead guilty to a crime he did not commit, the government would “go after” his family. He pled guilty to protect his son. The judge has become a prosecutor, and this travesty is still going on. Fortunately he is well-connected and famous. Most people just go to prison.

Prosecutors can fabricate evidence, and they rarely face any penalty other than the case gets reversed on appeal. Like police and all public officials, prosecutors are—but should not be—protected by immunity laws.

Corruption and the Connected Class

Of course, not all police or government prosecutors are corrupt or incompetent. In my experience, most truly try to do their job properly, and we do need them. There are bad people in the world, and after all, we want to be safe and to have dangerous people controlled. However, we need incentives to have the job done correctly, not just get convictions.

At the same time, we don’t want politicians and the politically connected to get a free pass when they commit crimes and openly admit to them on television. The public confessions of many members of the political class should be enough to convict them—but they won’t be charged. The reason is the politicians and the powerful get a pass.

Who else gets a pass? That may depend upon whether the prosecutors’ political leanings are more important than justice, such that rioters and street criminals get away with their crimes. We see how prosecutors target those who differ from the prosecutors’ political position, even if the defendants are innocent. They punish their opponents and reward their friends.

Consider Kimberly Gardner, the St. Louis, Missouri, prosecutor. This prosecutor in 2020 charged two innocent homeowners with felonies for defending their own lives and property in the face of rioters. She did not charge the criminals who threatened them. This was not a one-time fluke. Her entire career shows she favored criminals over law-abiding citizens. Instead of prosecuting the criminals, this prosecutor often let them go.

Again, the list could go on, but enough of how bad things are. Let’s take a look at private prosecution and see how we can improve the system. We want the victims of crime to have the right to prosecute criminal charges against the bad guys. But as you may suspect, there are some problems here, too.

Government Prosecutors

Now imagine a system where the crime victims have the right to prosecute criminal charges against the bad guys.

The victims would not have political favoritism or reelection campaigns to worry about. The victims-as-prosecutors would focus upon the crime and try to convict the actual criminal of the actual crime.

Of course, we might object that the victim has a bias against the accused, but so what? If you are attacked, do you think you would be biased against the attacker? I have been, and I was. My “bias” did not make the armed attackers less guilty.

We need to balance the victim’s drive for justice against other factors. For example, we don’t want to overcharge trivial cases, encourage harassment, or encourage misapplying the law. So, is there a better way? I say yes, and it revolves around individual accountability.

Exactly where do the loyalties of today’s prosecutor lie? For whom does the prosecutor work?

I say prosecutors should seek justice for the victim. Currently, they do not work for the victim but for “the society.” Criminal cases are brought in the name of the government—the difference matters.

Let’s kill a myth. Many people believe a victim has the power to “press charges” against the bad guy or “drop the charges.” Nope. Crimes are offenses against the government, not the victim. You may be beaten, maimed, or killed, but the crime is considered as against the government. You can tell the government to prosecute, and the government can just smile at you. You have no recourse to have the guilty prosecuted.

Yes, having the government serve as prosecutor takes responsibility for prosecuting the wrongdoer off the victim’s shoulders. The accused person cannot pressure the victim into dropping the charges. That’s a good thing.

Yet a government prosecutor may decline to prosecute for various reasons, some valid and some not. For instance, the prosecutor may believe there is little likelihood of success. Indeed, if the evidence is weak, then prosecuting would be wrong.

Another valid reason might be limited resources. A prosecutor may decide to invest resources to focus upon serious offenses and abandon lesser offenses.

Troubling are the other, unseen, illegitimate, dark reasons, not to prosecute. Government prosecutors may be under political pressure to either prosecute or refrain from prosecuting. Imagine a public official who has a lot of political clout and committed a crime. The prosecutor can choose not to prosecute, claiming “prosecutorial discretion” or publicly state the reason was something legitimate.

Choosing not to prosecute a truly guilty person means the perpetrator gets away with the crime. Most of us folks in society think justice dictates the guilty be punished, and victims have legal recourse. Prosecutorial discretion can devolve into a special favor that makes the political class and their friends an untouchable anointed group—defeating the idea of equal justice.

Let’s flip over the government monopoly on prosecution coin. Suppose one of the powerful elites wants an innocent person prosecuted. The elite’s reason doesn’t matter, whether for sex, power, money or revenge. Injustice is injustice.

When the prosecutor prosecutes the innocent, what options do these victims have? Substantially none. A legal defense can cost thousands to millions of dollars. You can’t buy insurance against this because “public policy” does not allow insurance companies to sell policies to defend criminal accusations.

The situation becomes: unlimited government resources vs. private individual with limited resources. Guess who usually wins.

Private Prosecutors

Consider instead having private prosecutors. Of course, a private prosecutor could decline to take the case, too. The prosecutor may evaluate the situation and not see enough evidence to make a case. The system may deny private prosecutors the immunity that government prosecutors enjoy and a private prosecutor faces personal liability. Still, if one prosecutor declines, the crime victim can seek another. Where there is a government monopoly on the prosecution, crime victims don’t have that option.

Is private prosecution allowed in the United States? The answer is yes, and no. In colonial America, public officials slowly came to dominate the prosecution of crimes, but the law permitted private prosecutors.7

The right to private prosecution in federal cases ended in 1981 with U.S. Supreme Court decision in Leeke v. Timmerman.8 In each of the states, however, state law governs private prosecution. Some states allow it. Others do not.

Unless the state law allows private prosecution, government prosecutors can only be unseated either by some form of impeachment or by the vote of the people in elections. Those avenues are not good enough for two reasons. First, if the prosecutor’s misconduct does not directly affect the voters, they may not even know or care about it. Second, voters have a short memory and may not remember the misdeed at election time. Even if the voters do remember, and do not reelect the offending official, the victim of the misconduct is not compensated. That is itself injustice: the guilty one escapes with the goods.

Funding for Justice

How to pay private prosecutors? Here are some ideas.

Courts impose fines, which could be used to cover the costs of investigation and prosecution. Fines should not go into the general fund of the jurisdiction doing the prosecution, but remain with some special fund. That way, the government does not earn bonuses based upon crimes, and the cost of prosecutions are paid mostly by the criminals.

Another idea: Funds paid by convicted criminals as “restitution” for the damage they caused the victims could also include covering the costs of private prosecution. This approach could reduce the need for civil lawsuits by victims against perpetrators. France handles both crimes and civil restitution in one case.

Funding could also come via insurance policies. A general liability or homeowner’s insurance policy could include coverage to pay for prosecution for theft from or damage done to the insured person’s residence or business property. This concept is similar to an automobile policy’s uninsured or underinsured motorist coverage. Insurance companies would have an incentive to maintain their own prosecution departments as well as handling defense of claims against their policyholders.

Crowdfunding is the practice of funding a project or venture by raising small amounts of money from many people interested it. There are hundreds, if not thousands of platforms for this, such as GoFundMe. People interested in helping a particular victim could contribute to a special fund for that purpose.

Charitable organizations are another source. Those whose primary objectives are philanthropy and social well-being could add criminal prosecution to their list of endeavors. Do private charities have enough money? Well, the top 100 charities in 2019 took in $51.5 billion. It would be natural that some charities would add “justice” to their mission statements.

Indeed, organizations dedicated to justice already exist. Judicial Watch, the Goldwater Institute, and the Institute for Justice all accept and prosecute civil cases for the oppressed. Adding private criminal prosecution would be a natural step. New organizations would likely also form to handle this function.

For individual liberty and accountability to thrive, we must remove the monopoly on prosecution from the government, institute individual responsibility for criminal prosecution, and allow citizens to right the wrongs done to them when government fails to do so. Private prosecution worked in the past. The government doesn’t always do things well, and competition with the private sector would force it to improve.

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Richard W. Morris

Richard W. Morris, a retired lawyer licensed in the United States Supreme Court, two U.S. states (Arizona and California) and the United Kingdom of England and Wales, a member of Mensa, and a former teacher and adjunct professor in economics. He holds the academic degrees of Bachelor of Science in Business Administration (B.S.) with a major in economics, Juris Doctor (J.D.), and Doctor of Philosophy in Business Administration (Ph.D.). During his half-century in aviation (airline transport pilot, flight and ground instructor licenses), he flew as pilot-in-command (captain) in some 40 countries on four continents.

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