Document Type

Article

Publication Date

2022

Journal

California Law Review Online

Volume

13

First Page

20

Last Page

29

Abstract

In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized for a variety of ills, most responsive proposals have focused on reform, rather than replacement or abolition. To be sure, Capers does not argue for the abolition of public prosecution. Rather, what Capers would abolish is the state’s virtual monopoly on prosecution. And this is Capers’s innovation—arguing for a system of accusation, investigation, and advocacy, anchored in private action and decision making rather than the state.

However, the benefits of Capers’s proposal, which he outlines in compelling fashion, would not come without serious costs, including those borne by alleged victims and defendants. This brief response to Against Prosecutors queries whether we might enjoy many of those benefits without this collateral damage by using the grand jury not as a prophylactic in a private prosecution regime, but as an enlightened, empowered institution in a system of public prosecution. After taking inventory of the aims of the Capers proposal, this response highlights the challenges it might create and why the grand jury could achieve those same objectives while avoiding the collateral consequences. Furthermore, this essay argues that the grand jury is susceptible to certain reforms that would better equip it to do the work with which Capers tasks his proposed private prosecution regime.

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