Prosecution in Public, Prosecution in Private

Abstract

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret. The allocation of public and private is, at heart, an allocation of power — and the current allocation is a relic. When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them. But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on whether to investigate, to charge, or to decline charges. This Article challenges criminal procedure’s centuries-old boundary between public and private in criminal enforcement. It argues that the justifications for the boundary are outdated and overstated, and the costs under-noticed. The public/private boundary has served to skew enforcers’ incentives; impoverish insight into enforcement patterns and their causes; weaken traditional channels of accountability (judicial, electoral and internal); and erode public trust. The Article reimagines a new boundary for our time, one that strengthens secrecy in some respects while relaxing it in others, and enables robust oversight of necessarily secret processes. More fundamentally, the Article is a call to center the public/private boundary in accounts of power in the criminal process.