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Why is criminal justice only partially privatized?

Mar 08, 2010

from Ron Wright's entry in Criminal Law Jotwell:

Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice.  He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice.

Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades....

The second major component of this article is a review of the far-flung literature on “restorative justice,” a method of responding to crimes that emphasizes the experience of the crime victim, both during the adjudication of the charge and in the selection and execution of the punishment. After summarizing the diverse literature on this topic (drawn from criminology, psychology, and other disciplines) Simmons moves to the heart of his project:  he draws out the connections between these two phenomena.

Both private policing and restorative justice emphasize the experience of the crime victim, and both grow out of frustration with the public enforcement system.  Just as private couriers respond to shortcomings at the U.S. Postal Service, private policing and restorative justice appear when victims of crime get no satisfaction from public prosecutors, criminal court judges, and public corrections officials.  In this economic analysis, private firms spring up to meet a demand.

Simmons then confronts a dilemma:  private firms have largely succeeded in the realm of policing, but not so in the arenas of criminal adjudication or criminal punishment.  Private police now identify an enormous number of criminal suspects after the fact, but there is nowhere to send them.  The victims of the alleged crimes have few satisfying alternatives to public criminal adjudication or public criminal punishment.  The capacity of restorative justice programs such as victim-offender mediation is tiny, typically measured in the hundreds.

Private capacity to impose something akin to criminal penalties is expanding when it comes to small crimes.  In some of the most interesting and original research presented here, Simmons surveys journalistic sources for evidence that the purchasers of private enforcement impose their own low-level punishments.  For instance, many large retailers (including Wal-Mart) only issue warnings to persons they accuse of stealing small amounts of merchandise for the first time. Property owners eject perpetrators from the premises; employers fire their employees accused of theft and other crimes.

What about private adjudication and punishment for more serious crimes? Simmons suggests (pages 962-967) that parties should resort more frequently to victim-offender mediation in a broader range of cases, without waiting for public prosecutors to file charges or for criminal court judges to refer cases to mediation.  The article explores the possible uses of mediation in serious property crimes, a few crimes of violence in organizational settings (such as employee assault cases), and even intra-family violence.  He envisions public prosecutors as monitors of this private system, standing ready to file charges in the public system if the private outcome does not adequately protect public interests.

Read the whole entry.

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