California Law Review Online Symposium
In Against Prosecutors, Bennett Capers proposes that we largely abandon the current system of public prosecutions and return to private prosecutions. His goal is to empower the victims of crime to make decisions currently made by public prosecutors—whether to bring charges, what the charges should be, and how the cases should be resolved.
Professor Capers’ goals are laudable. As he notes, the United States has the highest incarceration rate in the world, and the criminal legal system is rife with unwarranted racial disparities. Professor Capers correctly notes that prosecutors play a substantial role in perpetuating these problems. However, his proposed solution will not only fail to remedy the problems, but in some instances will likely exacerbate them. Professor Capers is right that prosecutors often ignore the needs of victims and treat them unfairly. However, his laser focus on the interests of victims ignores other impacted individuals whose interests matter, too—namely members of the community and the defendant. Prosecutors have an ethical duty to “do justice” for all, not just victims.6 Private prosecutors’ singular focus on victims can produce outcomes that do not benefit all of society because victims represent their own interests and are accountable to no one. Progressive public prosecutors, on the other hand, have demonstrated that considering the interests of victims does not have to come at the expense of others with legitimate interests in the outcome of criminal cases. A system with prosecutors committed to a fair and just criminal legal system for all will alleviate the ills of the current system more than moving to a system of private prosecution.
Angela J. Davis,
The Perils of Private Prosecutions,
California Law Review
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2201