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Why is Criminal Justice Only Partially Privatized
Ron Wright
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. It is an exceptionally timely topic. Much of our criminal procedure framework builds on the assumption that law enforcement is a public function, performed by state actors, but that vision is increasingly removed from reality. By some estimates, private security and investigative workers outnumber public police officers by more than a three-to-one ratio. Simmons capably summarizes here the groundbreaking work of David Sklansky and Elizabeth Joh, who brought these developments to light for the legal academy over the last ten years. Simmons then observes that the relative lack of legal regulations that apply to private police actors may not matter as much as we once thought. Many users of private policing do not bother to invoke the public adjudicative system, so the admissibility of the evidence that private police collect is not relevant in many cases.
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.
As a matter of positive theory, this is a wonderful synthesis. Simmons offers an economic and historical lens for connecting several different unstable trends in criminal justice today. Each of these trends can be understood as part of long-term fluctuations between public and private control of criminal sanctions. This article explains why the privatizing trend reaches law enforcement at the start of the process and punishment at the end of the process, but not the adjudication stage in the middle. Readers can see why dissatisfaction with plea bargaining, sentencing guidelines, crowded prisons, and domestic violence arrests - critiques of criminal courts that span from right to left on the political spectrum - all flow together into a demand for private criminal justice.
At the same time, I believe that this article is less fully developed in terms of normative theory. Simmons does not explain in a satisfying way why the private-initiated adjudications that he imagines have not already taken off, given the obvious sources of demand and funding for it. The article also raises a few questions about the desirability of the private criminal justice system for some important groups of "customers." Is there any reason to believe that innocent defendants will opt out of the private system at rates any higher than factually guilty defendants? If not, this is troubling, since criminal mediation begins with the shared premise that the accused person has harmed the victim.
Finally, there are many unexplored questions here of institutional competence. While Simmons declares - in a bit of overstatement - that "the Constitution is the source of all significant limits on public police powers" (page 929), we actually see a great deal of legislative activity in arenas such as wiretapping and (more recently) eyewitness identification procedures. Much fruitful work in the future might explore which aspects of private criminal justice are likely to attract the attention of legislatures. Please enjoy Ric Simmons' "Private Criminal Justice", presented below.
Private Criminal Justice
Ric SimmonsThe past few decades have seen the rise of two distinct alternative approaches to criminal justice: private law enforcement initiatives and restorative justice programs. These two approaches arise out of different ideologies - the first is an effort by private citizens to obtain greater and more responsive crime control; the second is a movement attempting to address the psychological needs of victims and perpetrators of crime - but they are strikingly similar in many ways. Both represent a return, roughly speaking, to the way in which criminal justice has been administered throughout most of history. Both have grown out of a failure of the public criminal justice system to satisfy the needs of potential and actual crime victims. Both advocate for a change in the focus of criminal law, away from retribution and incarceration and towards a victim-centered approach grounded in restitution (with an attendant downplaying of so-called victimless crimes). And finally, both employ streamlined procedures in apprehending and/or adjudicating criminals.
Together these two approaches are forging an alternative private criminal justice system, in the same way that an alternative dispute resolution industry has arisen in the civil law context. But this alternative criminal justice system is still in its infancy, and although its contours are slowly taking shape, the system still contains gaps which must be filled in. Private criminal law, for example, has grown into an immense industry operating completely outside of the public criminal justice system, but it is currently limited to the law enforcement stage of the process. By contrast, restorative justice programs impact the adjudicative process and the resolution stage, but their operation is almost wholly dependent upon state action. Only by combining together can these two approaches result in a viable private alternative to the public criminal justice system.
This alternative will not replace the public criminal justice system, just as the vast alternative dispute resolution industry has not replaced the public civil justice system. Rather, the private criminal justice system will provide a different option - or, more accurately, a set of different options - for the individuals who commit or are victims of crime. The public criminal justice system will always be present, adjudicating cases in which either the defendant or the victim do not wish to participate in the private alternative, and also serving as a default for the cases in which the parties fail to reach a resolution in the private system.
Part I of the Article describes the failures of the public criminal justice system and show how many of these failures are due to the public monopoly on the provision of criminal justice services. Part II chronicles the privatization of law enforcement, examining its dramatic growth and the limited response from scholars and lawmakers. Part III provides a brief summary of the theory and practice of the restorative justice movement. Part IV combines these two movements to demonstrate what a private criminal justice system would look like. Part V examines potential criticisms of a new private criminal justice alternative, and Part VI concludes the article by briefly setting out suggestions for how an emerging private system of criminal justice should develop in light of these potential criticisms.
I. Public failures, private opportunities
On December 12, 1997, a man named Thomas Cannon pled guilty to two counts of felony drug possession to cover two separate instances when he had been caught carrying less than fifteen grams of crack cocaine. Over six years later, Cannon was arrested again after police recovered sixty grams of crack cocaine from an automobile he had occupied. After Cannon was convicted, the trial judge sentenced him to twenty years in prison. The prosecutor appealed the sentence, and the Seventh Circuit held that under the Federal Sentencing Guidelines, Cannon had to be sentenced to life in prison. Although the Seventh Circuit opinion questioned "whether life imprisonment is the best way to deal with repeat offenders who peddle retail rather than wholesale quantities," it conceded that its hands were tied by the sentencing laws.
The public criminal justice system is failing. This is not to say that the public administration of criminal justice is on the verge of collapse, nor that it does not satisfactorily carry out certain necessary functions. But it is becoming increasingly clear that the public criminal justice system is inadequate on two counts: first, it makes almost no attempt to rehabilitate and reintegrate the perpetrators of crime; and second, it does not satisfy the needs of crime victims. And as we have seen in other industries, from education to postal services to resolving civil law disputes, a failure of the public system will inevitably lead to the development of a private alternative.
The failure of the public criminal justice system
It is an open secret that the public criminal justice system has essentially given up on rehabilitating its criminals. Rehabilitation, which was the hallmark of the corrections system for most of the 20th century, was abandoned in the 1970’s, to be replaced by an ever more punitive system which incarcerates defendants at an astonishing rate: the United States leads the world by imprisoning 738 people out of every 100,000 citizens, while almost every European country ranges between 100 and 200.
Recent decades have seen a dramatic increase in the sheer number of crimes as well as an increase in the severity of sentences handed out for each crime. For example, a defendant sentenced in federal court in 1998 for a given crime would spend twice as long in prison as he would in 1984 for the same offense. Furthermore, the sentencing process has become much more mechanical, with both the federal sentencing guidelines and the mandatory minimums imposed by many states replacing individualized, case-by case judicial decision-making. The result is an extremely punitive public criminal justice system which responds to populist political movements and arguably serves neither the utilitarian nor the retributive goals of criminal justice theory. And perhaps the greatest sign that the criminal justice system has failed on this count is that these long sentences and extraordinary incarceration rates have become normalized. It is no longer shocking that we lock up non-violent offenders for decades at a time, or that millions of our citizens will spend part of their lives in prison; it is simply the way things are.
An outside observer considering these developments might be tempted to conclude that the skyrocketing incarceration rate has at least ensured that victims of crimes are satisfied with the system. Alas, this is not the case. Although crime rates have dropped dramatically in recent years, they are still higher than in most other countries; and a a large proportion of the population still feels unsafe because of crime. Furthermore, once someone becomes a victim of a crime, they are treated extremely poorly by the criminal law system. The adjudication process is time-consuming and draining for the victims and witnesses. The multiple delays inherent in our criminal justice system are costly - financially costly for victims who must miss work and emotionally costly for victims who suffered trauma as a result of the crime and are seeking closure. Most importantly of all, victims ultimately have no control over the adjudicative process or the outcome of the trial, since all real decisions are made by the judge or the prosecutor. And notwithstanding the long sentences meted out by the courts, underreporting of crime and low arrest and conviction rates lead to the perverse result that much of the criminal activity which occurs is not at punished at all; thus, taking into account the chances of being caught and successfully prosecuted, the expected sentence for an individual who commits a serious felony may only be a few months.
Given these failures of the public criminal justice system, it is not surprising that one survey found that 75% of Americans were in favor of "totally revamping the way the criminal justice system works." When a publicly-run industry is failing to satisfy consumers to this degree, the rise of a private alternative is inevitable.
B. The culture of privatization
As it turns out, when we looks at the criminal justice system in the context of the entire economy, the real question is not whether a private alternative should exist, but rather why it has taken so long for a robust private alternative to arise. It is hard to think of any other industry or area of the economy in which there is no private alternative to the public provisioning of services. From primary education to health care, from the delivering of the mail to the maintenance of roadways, nearly every segment of the economy gives individuals both a private and a public alternative. If receiving the service is deemed to be a fundamental right or (as in the case of crime control) if the service is believed to provide a positive externality to society, the state offers to deliver the service for free - either to everyone, or perhaps only to those who have demonstrated that they lack the ability to pay for the service themselves. Primary, secondary, and even college education fall into this category, as does health care, criminal legal defense services, provision of libraries, and a vast array of social services. But even though these services are deemed to be so important that the state will guarantee them to everybody, there is a general consensus that those who wish to spend more money to obtain higher quality services should be able to do so. Although the state will always provide (and should always provide) a free public school education, it would seem quite radical to prohibit individuals from opting out of the public school system to purchase a private school education that was of a higher quality - or perhaps of the same quality, but better tailored to their perceived educational needs (for example, a smaller school, or one that focuses on teaching fine arts or science). Even in the justice system, our society has chosen to create and maintain a robust public civil law court system, but allow parties the option of private alternative dispute resolution systems which may be cheaper, faster, more flexible, or simply more responsive to the parties’ needs.
And yet in the field of criminal justice, the conventional wisdom is that a public monopoly is necessary and appropriate - and as a result, the provisioning of criminal justice services, at least beyond the field of law enforcement, remains the exclusive province of the state. This state of affairs is not only anomalous when compared to other types of services provided by the state, it is also anomalous when compared to the provision of criminal justice services over the past one thousand years. There are various historical reasons why the state has attained a public monopoly on the provision of these services, and (more to the point) there are strong arguments in favor of maintaining this monopoly. But in the face of the growing failures of the public criminal justice system, the potential benefits of a private alternative, and the growing role of both private law enforcement and alternative dispute resolution programs for criminal cases, it is at least time to begin questioning these arguments.
It should be noted that when this article discusses "privatizing" the criminal justice system, it is not referring to a total abandonment of the state’s provisioning of criminal justice services. This would be extraordinary as well as unprecedented: there is almost no segment of the economy which is completely privatized with no state involvement whatsoever. Thus, in creating a "private criminal justice system" we are not speaking of tearing down the current system of criminal justice and replacing it with a private alternative. Instead, we are merely seeking to build an alternative private method of resolving criminal disputes that - if both the victim and the defendant choose to do so - could be used instead of the existing public system. Given the numerous problems inherent in the public criminal justice system, it is inevitable that victims and defendants will both demand to have such a choice. And since the emergence of such a system is inevitable, it is important to guide and shape the private criminal justice system at this critical stage in its evolution.
II. The Current State of Private Criminal Justice
In a very real sense, the emergence of a private criminal justice system is not only inevitable, it has already begun. The law enforcement phase of criminal justice is already dominated by private industry, leading to thousands of arrests each year. But the privatization movement has not yet affected the rest of the criminal justice system in any meaningful way, which leads to the crucial question: what is happening - and what should happen - to these thousands of alleged criminals after they are apprehended by private police?
A. The ubiquitous private police
The degree to which private entities have taken over law enforcement functions in this country is extraordinary. Today, the so-called "private police" are everywhere: conducting residential security patrols, monitoring shoppers in department stores, safeguarding warehouses, patrolling college campuses and shopping malls, guarding factories, casinos, office parks, schools, and parking lots. Companies hire internal security to monitor their own workers and investigate employee theft and to detect fraud on the part of their customers. The rise of the internet and the world-wide web has created an entirely new branch of the private security industry, as companies, governments, and non-profit organizations hire specialists to ensure that their presence on the web is secure.
The "clients" of the private police are not limited to the large corporations that own the casinos, office parks, and retail stores: frequently a neighborhood will band together to step in where public policing has failed. In the Olympic neighborhood on the East Side of Los Angeles, for example, ordinary citizens and business owners were growing increasingly frustrated with the high number of burglaries and graffiti in their midst. One business owner commented that the criminal activity "goes in spurts depending on the visibility of the officers in the Los Angeles Police Department," adding that the police were generally "shorthanded" - "even our police substation had been defaced with graffiti." In response, the business owners formed the Business Watch, in which each of the forty members contributes $1,800 per month to pay for a private security company to patrol the neighborhood at night. The result was a marked decrease in crime in the neighborhood.
Although the immense breadth of the industry makes definite numbers hard to come by, it is undisputed that private security officers vastly outnumber public law enforcement officers, and spending on private security is approximately double the spending for public law enforcement. And for the most part, this growth has all occurred within the past three or four decades: only thirty-five years ago, there were more public police than private security guards.
This stunning increase could be called revolutionary if it weren’t for the fact that it is actually just a return to the standard structure of law enforcement throughout most of history--in fact, the dominance of publicly provided security that occurred in the first half of the twentieth century is a relatively short-lived historical aberration. The early 1970’s was both the first and the last time in which public security officials outnumbered private security forces. To understand the evolution of the private and public police, it will be useful to review the history of the two entities.
1. Private policing in historical context
The very idea of certain conduct being "criminal" first arose approximately a thousand years ago. Before that, the tort/crime distinction which today serves as the foundation of criminal law did not exist. The Eleventh Century nation-state had virtually nothing to do with maintaining law and order – or anything else, for that matter; kings did little except tax their citizens and wage war against each other, and only became interested in law enforcement when it became apparent that the criminal law could be another source of state funding. In England, for example, King Henry I in 1116 declared that certain intentional torts - such as arson, robbery, and murder - would henceforth be considered crimes. Thus, instead of the perpetrator being subject to a civil suit in which he would be liable to the victim for damages, the perpetrator’s property would be forfeited to the state. In addition to providing more revenue for the King, the criminalization of intentional torts was meant to cut down on instances of private retribution on the part of the victim, a process which was seen as less legitimate than state action.
But even after the Crown decided to reclassify certain torts as "offenses against the King’s peace" - thereby creating a criminal code - the responsibility for apprehending and even prosecuting the criminals remained a private responsibility for many centuries. Before the nineteenth century, public criminal justice was essentially a form of "mandatory community service:" although most towns relied upon night watchmen to guard or patrol the community, these watchmen were unpaid and were no more than ordinary citizens who served in the positions in a rotating basis; if any trouble occurred, they were meant to raise an alarm, at which point all citizens were required to assist in the arrest. The watchmen did little besides "keeping an eye out for trouble, raising an alarm when it was spotted, and perhaps deterring some of it by mere presence." They were also incompetent and poorly trained, which led wealthier individuals to hire their own private guards, while the government offered large rewards for apprehending criminals (leading to professional informers or "thief-takers" who earned their money primarily by tracking down criminals and claiming the reward).
The birth of widespread public policing did not occur in Britain until 1829, and not in the United States until 1845. Even so, private law enforcement remained dominant throughout the nineteenth century, particularly outside urban areas. Corporations hired their own "company police" to protect their interests, while large private police forces (such as the Pinkerton National Detective Agency) provided patrol and investigative services to the growing nation. But as the twentieth century progressed and public police supplanted private security across the country, police forces spread beyond the major urban areas as smaller communities, states, and even the federal government began to develop their own police departments. Concurrent with this growth in numbers was a change in public attitudes towards the concept of public police forces. When these forces were first introduced, they met with great resistance from the general population, especially in the United States. But eventually the increasing use of "private armies" to protect the interests of the railroads and other industrial age giants led to a backlash against private police forces. This political fallout and the increasing professionalization of police departments led to a widespread belief that policing was an essential public function.
As we have seen, however, the era of public-policing dominance was short-lived, as private policing enjoyed a spectacular rebirth towards the end of the 20th century. The widespread support for public policing remains in force, but it has been tempered somewhat as the inadequacies of purely public policing become more apparent. Today, nearly everyone will agree that a strong, competent public police force is a necessary element of our society - but nearly everyone will also agree that it should be permissible and is probably desirable to allow individuals to supplement public police protection with private security. The result is a law enforcement system which is predominantly private in nature, but which is supported by a robust public police force at its core.
2. The roots of the privatization movement
Both the shift in attitude regarding public and private police and the dramatic growth in the private security industry can be traced to the failure of the public criminal justice system to satisfy the needs of the citizens. Primary among these is the need to feel safe and secure: if the public police are scarce or nonresponsive to crimes being committed in a certain company or neighborhood, the company or neighborhood will likely respond with its own measures to improve security by hiring private guards, contracting with a private security firm, forming a neighborhood watch association, etc. But frequently the reason for turning to private law enforcement may be dissatisfaction not only with the level of response but also with the outcome or the method of the response. The public police have their own agenda and goals, which may differ quite dramatically from the agenda or goals of the private entity. For example, the public police generally want to arrest the perpetrator and begin formal criminal proceedings against him, usually culminating in a suitable punishment. This policy is derived from the standard goals of the public criminal justice system: retribution against those who commit crimes, incapacitation of offenders so that they cannot commit more crimes in the near future, and general deterrence by showing other potential criminals that committing a crime has negative consequences. These goals can only be met if formal criminal proceedings are brought against the alleged perpetrator; indeed, the goal of deterrence is only achievable if the police regularly apprehend and initiate formal criminal procedures against a substantial number of criminals. In this sense, the criminal justice system is providing a public good: by expending large amounts of resources to apprehend and punish a significant percentage of wrongdoers, the system creates an expectation that committing a criminal action will (at least possibly) result in punishment.
A private entity, however, may not share any of these goals, at least not to the same degree. The "clients" of the private security industry - that is, the company who employs the private security force or the residents of the neighborhood who hire the security guards - may not care about retribution or incapacitation against any specific perpetrator; they only want to ensure that the perpetrator does not commit crimes which affect their company or homes. One method of advancing this goal would be to apprehend the perpetrator and hand him over to the police for formal criminal adjudication - but this is almost certainly not the most efficient method. By involving the public criminal justice system, the private entity loses control over the process, and the costs – both in time and money – to cooperate with the public police and courts can be significant. The private entity might be able to achieve its goals more efficiently by simply removing the perpetrator from the situation, either temporarily or permanently: ejecting and/or banning the perpetrator from the entity’s jurisdiction; suspending or firing the perpetrator, and so on. The same calculus applies even more dramatically to the public good of general deterrence: the private entity will not be willing to invest the resources necessary to ensure that other potential criminals are deterred from committing similar crimes. The private entity has an interest in specific deterrence - specific in this context meaning deterring anyone from committing a crime against that particular private entity - but it is indifferent between shifting the criminal activity to another store or block and preventing the criminal activity altogether.
Beyond having different ultimate goals, a private entity might prefer that the method of law enforcement be different than the method used by the public police. For example, the private entity may want to use more subtle methods of law enforcement so as not to disturb other customers of the corporation or lower property values in the area. Noisy arrests inside a department store - indeed, even the presence of uniformed police personnel - may project an image which drives away potential customers. Frequent drug busts in a neighborhood - with the inevitable negative publicity and high crime statistics that derive from arrests which are public records - may lower property values, thus damaging the interests of homeowners in the neighborhood. Conversely, some private entities may want more blatant and ostentatious demonstrations of law enforcement: for example, local media coverage of multiple apprehensions inside a certain store might serve to deter would-be shoplifters, while frequent patrols of brightly marked cars inside a gated community would scare away potential burglars.
In short, although the varying types of private police may share some characteristics (they generally tend to prioritize prevention over apprehension, for example), each private security force has a "client-driven mandate," and thus the goals of private law enforcement will vary depending on the needs of the client. This is another reason that private law enforcement is appealing to its clients - no matter how responsive and efficient the public police might be, by nature they cannot satisfy all of the various and perhaps conflicting preferences of private citizens.
B. Neglect by legal scholars, lawmakers, and judges
In spite of this explosive growth, the privatization movement in criminal law enforcement has not been accompanied by a complementary development of theory and law explaining and regulating the private security industry. Up until approximately ten years ago, there was almost no legal scholarship on the issue; in 1999, one author noted that legal scholars have tended to "ignore private security" and that as a result the field of private law enforcement was "terra incognita – wild, unmapped, and largely unexplored." This deficiency is rapidly being rectified, and the last decade has seen a steady increase in law review articles attempting to explain, classify, justify, and/or criticize the dramatic increase in private law enforcement.
Legislatures have been even slower to respond to this trend, and as a result there are virtually no statutes specifically designed to empower or regulate private security forces. In a sense, this is not too surprising, since there are surprisingly few statutes which empower or regulate public police. Public police receive most of their explicit powers through grants of immunity: as long as police do not act in bad faith, they are immune from tort or criminal liability for assault, false imprisonment, and trespass. Private security guards enjoy some of these immunities through what are known as "merchant’s privilege statutes," but for the most part, statutory law treats private security guards no differently than any other private citizens. Thus, if a private officer searches private property without the consent of the owner, his action generally constitutes a trespass; while if a security guard wrongly arrests or detains another individual, he may be exposed to civil and criminal liability for false imprisonment. Of course, these restrictions are not the result of an intentional decision on the part of state legislatures to regulate and monitor the conduct of private police; rather, they apply by default as the primary form of regulation because legislatures have neglected to address the question.
Courts have also refused to apply the standard constitutional restrictions on law enforcement (such as the exclusionary rule and Miranda warnings) to private security forces. This is perhaps the most significant area of neglect, since the Constitution is the source of all significant limitation on public police powers, regulating how the public police conduct investigations, searches, arrests, and interrogations. For this reason, it is useful to examine in some detail the reasoning behind the courts’ abdication on this issue.
The Supreme Court has applied a version of the state action doctrine to the regulation of private police, using three factors to determine if state action is present: (1) the extent to which the actor relies on governmental assistance and benefits; (2) whether the actor is performing a traditional governmental function; and (3) whether the injury caused is aggravated in a unique way by the incidents of governmental authority. At first it seems as though most private security guards would qualify as "state actors" under these factors: they work closely with public police to perform their duties, criminal law enforcement is arguably a "traditional governmental function," and the injury caused by improper searches or coercive interrogations are certainly aggravated by the state when the tainted evidence is used to convict a defendant in court. But as pointed out by Professor Sklansky, this argument ends up proving too much: if applied literally, it becomes nearly impossible to distinguish between private police and ordinary private citizens who happen to carry out a law enforcement function. Public law enforcement provides assistance not just to private security companies but to many individuals and groups: commercial establishments, neighborhood associations, schools, individual citizens and so on. And even if we concede that policing is a "traditional governmental function" (and given the long history and current dominance of private policing, this may itself be a tough sell), why would the state action doctrine apply to private security guards who make arrests, but not to an ordinary citizen who makes an arrest? After all, by making the arrest, both are engaging in the same traditional governmental function. And the same argument applies to the "unique aggravation" prong - although the state may ultimately use its unique authority to punish defendants as a result of the actions of private security guards, it uses the same authority to punish defendants when any private citizen provides evidence to the courts. Thus, given the current status of the state action doctrine for criminal procedure cases, there is no way to legally distinguish between private police and private citizens.
Courts and scholars may yet find a way out of this doctrinal dilemma, but for now and the foreseeable future the private police remain safely outside the Constitutional limitations on state power. It appears many citizens like it that way, and there is little doubt that the clients of the private police are happier that their security forces are unfettered by Constitutional limits (indeed, this is one of the appealing aspects of hiring private security instead of relying on public police). Most scholars, on the other hand, appear to watch the spreading army of private police operating outside the Constitution’s mandate with growing dismay. But as it turns out, the question may turn out to be far less important than it seems to be. Whether or not the evidence gathered by private security forces is admissible in the public courts might not matter much to the private police, nor to the individuals, organizations, and companies that hire them, nor even to the suspects that the private police apprehend. This is because as often as not, those who employ private police decide to opt out of the public criminal justice system altogether and merely take their own private action against the alleged perpetrator. Thus, the entire incentive system upon which the jurisprudence of the Fourth, Fifth, and Sixth Amendment rely - excluding evidence from court if it was improperly obtained - is ineffective with regards to the private police.
For this reason, the only effective way of monitoring and regulating the conduct of the private police is to turn to legislative bodies. As noted above, some of this statutory regulation already exists: the tort and criminal doctrines of assault, trespass, and false imprisonment do apply to the private police - in fact, they form the primary if not the exclusive legal limitations on the power of the private police. But because the aggrieved citizen so rarely exercises these civil law rights - indeed, because this method of regulating conduct is completely dependent upon the unreliable initiative of aggrieved citizens in order to function - many commentators have called out for greater regulation. But before we can even conceptualize what this regulation should look like, we should consider the broader perspective of private criminal justice: more specifically, what happens to the suspect after he or she is apprehended by a private security guard? As we shall see, it is here that the evolution of the private criminal justice system has been stunted, with troubling results.
C. The bottleneck and "unofficial" private dispositions
At this point in the analysis it is useful to divide the criminal justice system into three stages. The first is law enforcement, which is meant here in its broadest sense: patrolling and guarding a building or an area; investigation of criminal activity; and apprehension of suspected criminals. The second is the adjudication process: the procedure by which the system determines whether a crime is committed, what the crime was, who committed it, and what the consequences should be. The final stage is the application of those consequences, which we will call the disposition stage.
1. The limited scope of true privatization
In the public criminal justice system, these stages are divided into specific spheres of influence: the police and other various local and federal agents conduct law enforcement activities; the courts (including the judge, prosecutor and defense attorney) carry out the adjudication; and the disposition phase is either controlled by the courts (in the case of a probationary sentence or some other sentence short of imprisonment such as a fine or a treatment program) or by the department of corrections, which runs the jails and prisons.
Thus far, our discussion of a "private criminal justice system" has focused exclusively on the law enforcement stage of the process - for the obvious reason that the privatization movement in criminal law has been confined almost exclusively to that stage. There is virtually no evidence of privately-sponsored criminal adjudications, and for the most part, post-conviction matters remain under the control of state actors.
It is true that many aspects of the post-conviction phase, particularly incarceration, are contracted out to private parties. Approximately 10% of prisoners in this country are serving time in a privately-run correctional facility. Private organizations also manage some of the treatment, counseling, and rehabilitation programs to which many convicted criminals are sentenced or referred. But this type of "contracting out" does not in itself represent any significant change in the theory of criminal jurisprudence or in the provision of criminal justice services. As economists have noted, every single service that a government provides is to some extent "contracted out," since the government must hire a private individual on the open market to provide the service. Thus, the only difference between a government agency which hires a corporation to provide security services or correction services and a government agency which hires and manages its own police force or prison system is that in the former situation, the agency is contracting for a bundle of services at once, to be managed and coordinated by a profit-seeking entrepreneur instead of a civil service bureaucrat. Both organizational structures have costs and benefits, but in either case a state agency is ultimately controlling the provision of services, which means a prison guard or a law enforcement officer is subject to the same rules and restrictions under the law whether he is hired directly by the state agency or by a company that is in turn hired by a state agency. More importantly, the goals and policies of the police force or prison institution will be identical to the goals and policies of the state agency that is in charge, regardless of whether the services are managed and coordinated by a private corporation.
In contrast, true privatization means that a private citizen or entity sets the rules, the goals, and the policies for the provision of the criminal justice services. The rules may be similar to those which regulate the public criminal justice system - but they probably are not. Likewise, as noted above, the goals of the private entities may happen to coincide with the goals of the public criminal justice system, but they likely will not.
For example, when Wackenhut Services runs a juvenile detention facility for the federal government, it decides how to design the prison, how many employees to hire and how much to pay them, and what kind of training to give them. But Wackenhut’s treatment of the prisoners must still abide by the statutory and Constitutional regulations set down for prison management, and its purpose in providing the prison services is identical to the goal of the state agency that hired them (or more accurately, the incentives that the state agency put into the contract) – that is, to rehabilitate the prisoners in order to facilitate their re-entry into society; to punish them in accordance with the sentence that the state courts have found to be appropriate, and so on. In contrast, when Macy’s hires a guard to watch for shoplifters inside its store, or a neighborhood watch association hires a security company to patrol its streets, the private entities undertaking are not bound by any of the Constitutional restrictions which impede public entities (or private contractors working for public entities); they can search a suspect without probable cause or consent, for example, and they can elicit confessions without concern for Miranda rights. If they flout these rules too radically, they may be unable to use the evidence which they recover in a subsequent criminal prosecution - but private law enforcement entities are frequently indifferent to the mandates of the public criminal justice system. This indifference stems from the most important distinction between the truly privatized actors in the criminal justice system and those who are simply contracted out by the government: the goals of the truly privatized law enforcers are the goals of the private entity which hired them - which, as we have seen, may or may not be consistent with the goals of the public criminal justice system.
Once the "contracting out" services are excluded from the privatization analysis, it becomes clear that private entities perform and control the overwhelming majority of the law enforcement duties in this country, but none of the adjudication and almost none of the dispositions in the criminal justice system. The unstoppable privatization trend that we see in law enforcement has not reached the other two branches of the criminal justice system. There are two primary reasons for this discrepancy. First, violations of criminal law frequently result in incarceration, or in the threat of incarceration if an alternative sentence is not carried out. But within the last hundred years, this country (as well as most western industrialized states) have achieved what one commentator refers to as a "monopol[y] of punishment, policing, and military force." Thus, any attempt to privatize the disposition phase will potentially conflict against the state’s monopoly of coercive power. Second, criminal law violations are fundamentally different than civil law violations, in that they involve a moral as well as a private transgression; the perpetrator has not only harmed another individual, he has also broken the social contract. Indeed, for many crimes, there is no victim to be harmed (or the "victim" is a diffuse entity such as all the citizens of a community or everyone who buys shares of a stock); thus, there is only a moral transgression to be dealt with. Although private parties can take action to remedy the private transgression (if one exists) by, say, seeking restitution or evicting the perpetrator, they cannot (and perhaps should not) take any action to remedy the moral transgression involved.
2. The backlog of privately apprehended defendants
Whatever the reason, the result of this stunted privatization movement is that we are faced with a predominantly private law enforcement system, and a purely public adjudication and disposition system. Which leads us back to the crucial question from the beginning of this section: what is happening - and what should happen - to the thousands of alleged criminals who are being arrested by the private police? At first, the answer seems simple - so simple that many do not realize the significance of the question itself - the private police should contact the public authorities and give them custody of the accused, so that proper charges may be brought against them in the public courts. But there are at least two reasons why this answer falls short.
The first is that many of the same factors that drove private individuals, organizations, and companies to take law enforcement matters into their own hands - dissatisfaction with the public provision of these services, a desire for greater control of the process and the outcome, a frustration with the many legal and procedural obstacles which exist in state-sponsored law enforcement - apply with equal or greater force to the adjudicative and disposition phases of the criminal justice system. A victim - that is, the client who controls the private police - will receive little or no benefit from reporting the crime to the police, and may in fact incur a significant cost in being forced to assist in the prosecution of the case. Because the public system is focused on the defendant - and specifically, on punishing the defendant - the victim will invest hours of time and perhaps emotional trauma re-living the event - and in exchange, gets no control over the ultimate outcome and will likely receive no restitution from the defendant or the state.
The state has, to be sure, attempted to respond to these frustrations. In response to victim’s advocacy groups, states have passed various victims’ rights legislation, which generally give crime victims the right to be notified at certain stages of the proceeding, and the right to be heard at a defendant’s sentencing. And of course every citizen has some "control" over the outcome of a criminal case, though it is very tangential: the prosecutors and judges who make the decisions are usually elected officials, and sentencing regimes themselves are constantly being fine-tuned by legislators to better reflect society’s views on what each crime is "worth" and what factors should be taken into account in determining punishment. But even so, given the incentive structure faced by any given victim, there will frequently be little reason to begin public criminal proceedings against the accused.
And this leads to the second reason why we cannot assume that the clients of the private police will simply turn the accused over to the public system: not only is it against their interest to do so, they are in fact not doing so. It is becoming increasingly clear that private entities are beginning to opt out of the public criminal law enforcement system entirely and impose their own sanctions on the alleged perpetrators. We are thus left with a steady flow of accused criminals emerging from the privatized law enforcement pipeline; a state which has reserved for itself the power to formally adjudicate and punish the alleged perpetrators; and a strongly held dissatisfaction with the method in which the state exercises its monopoly authority - all of which results in a backlog of privately-apprehended criminals, many of whom are not ever handed over to the public system.
3. Private responses to criminal activity
Given the state’s well-established monopoly on coercive punishment, private entities that are dissatisfied with the public criminal justice system and seek to bypass public adjudication and disposition face limited options. Many times the private police merely stop the offending conduct and let the offender off with a warning. If the private entities who employ the police believe that a greater sanction is warranted, they may direct the private police to execute a "sentence" which is within their private property rights to enforce: for example, ejecting the alleged perpetrator from the property (along with revocation of the suspect’s right to re-enter the property); fining, suspending, or firing an employee; or forcibly retrieving the stolen property. Others are more insidious. Consider two examples: civil demand letters and sexual predator websites.
Many major retail stores routinely send out a "civil demand letter" to any customer whom they catch shoplifting, seeking a payment from the alleged perpetrator for hundreds of dollars. Technically these letters are simply offers to settle a potential civil lawsuit; if the alleged perpetrator does not pay, the store will simply sue them for damages under tort law. But the civil nature of the letters appears to be lost on everyone involved: a representative of one retail store says that the "fine" that the store is demanding is "the penalty for committing a crime." Supporters of the program note that the shoplifter benefits from the procedure because by participating he "avoids criminal prosecution." A recent newspaper article on the topic is illustrative: "Retailers’ Message to Shoplifters: Pay Up or Risk Prosecution."
Stores which send out these letters no doubt have no intention of bringing criminal charges against the recipients. Instead, these stores are indirectly using the public criminal law as a threat to coerce the recipients into paying a civil settlement. If the accused pays up, the store gets some amount of restitution - but even if not, there is some deterrent effect on the alleged shoplifter, thus helping to prevent further crime against the store.
Privately constructed dispositions are not limited to large companies, however; grassroots criminal justice initiatives are also getting in on the act. Consider the numerous private organizations that have sprung up to combat internet crime. Many of them act essentially as private law enforcement and/or victim support services; gathering tips and passing them on to the police; providing training and raising awareness on issues of identity theft and online child solicitation; lobbying for changes in the law governing computer crimes. But some organizations have gone past the law enforcement stage and set up their own system of punishment. For example, volunteers at the website "perverted-justice.com" go online posing as children in order to lure potential "cyberpredators" into a conversation. The volunteers then attempt (in role) to gather a photograph and contact information about the individual who is soliciting them, and representatives of the organization will then call to confirm the intentions of the potential child solicitor. Once the organization is convinced of the individual’s guilt, they will post the alleged perpetrator’s name, contact information, and picture on their website, alongside a transcript of the sexually explicit chat the individual had with the volunteer. The organization also encourages visitors to the website to contact the alleged perpetrators and their friends and family; it also works with local and national media outlets to put some of the perpetrators on television. Although perverted-justice works with law enforcement, this is not its primary purpose. Its goals are independent of the public legal system: first, to privately punish those who attempt to solicit children by publicizing their actions; and second, to use this publicity to deter potential perpetrators from engaging in internet solicitation by "poisoning the well," so that individuals who may wish to engage in the conduct will abstain because of the fear that they will in fact be exposed by an adult volunteer posing as a child.
Perverted Justice is only one example of the "public shaming" punishments imposed by private groups who wish to punish criminals. Residents of Chicago, for example, organized to picket the home of a slum landlord for two years in order to draw attention to the fact that his apartments had become the basis for gang activity.
These examples of private criminal dispositions arise out of a dissatisfaction with the way the traditional public criminal justice system handles these cases. The statutes which allow retailers to recover extra damages against shoplifters were passed out "of frustration that it was difficult to get the courts to spend the time and effort to prosecute shoplifters." The organizations that publicize the actions of those who solicit children online are acting out of a belief that the criminal justice system’s response to the issue has been inadequate. This same dissatisfaction also motivates other private entities who choose to punish suspects without the help of the public criminal justice, even if that "punishment" is simply evicting or banning the suspect from the entity’s private property. In other words, the same forces which pushed private entities into hiring their own private police officers - frustration with the time-consuming and expensive process of a criminal prosecution, disappointment with the responses of the public criminal justice system - are also pushing them to create alternative methods of resolving criminal cases once the private police make the arrest.
And what is the adjudication process which precedes these private resolutions? One of the most troubling aspect of the current private criminal justice system is that we know almost nothing about how private entities determine the guilt of those that are apprehended by their own police. It is possible - perhaps even likely - that most such private entities use no adjudicative processes whatsoever; once someone has been apprehended by private law enforcement, he is presumed guilty, and the private entity moves directly to sentencing. To be sure, there are a few private institutions, such as universities, which have an incentive to provide a formal or quasi-formal adjudicative process for individuals who are apprehended by private police--but these are the exception rather than the rule.
In other words, while the private options for disposition are limited and haphazard, the private options for the "adjudicative" phase are almost non-existent. With no institutions in place to help the private entities determine the individual’s guilt or level of culpability, private entities set their own standards, relying on their private police to conduct investigations and interrogations as they see fit in order to ensure the accused is guilty. And once the private entity is convinced of the party’s guilt, the process moves to the disposition phase without any procedure involving input from the defendant or from the community.
In short, restricting the privatization movement to the law enforcement phase has resulted in a suboptimal situation for everyone: private entities that opt out of the public system face limited options as to what to do with those they apprehend; the accused are punished without any chance to prove their innocence or provide input into the sentencing process; and the entire operation takes place out of the public eye, with no community input. All parties could benefit from institutionalizing a private system of adjudication and disposition.
Professor Simmons joined the Moritz Law faculty in 2003. He is a graduate of Columbia Law School, where he was a Stone Scholar and a senior editor of the Columbia Law Review.
Following law school, he clerked for the Honorable Laughlin E. Waters of the Central District of California.
Professor Simmons served for four years as an assistant district attorney for New York County, and was an acting assistant professor at New York University School of Law from June 2000 through June 2003.
Professor Simmons is also the creator and editor of the web site chooseyourjudges.org, which assists voters in choosing candidates in judicial elections. The web site allows voters to take a quiz to determine their preferences for the type of judge they want, and then provides a recommendation based on those preferences. The web site also contains commentary about the judicial election process, and a blog with current news regarding judicial election campaigns.He teaches Evidence, Criminal Law, and the Prosecution Practicum.
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