Reviving Private Prosecution Could Transform Victims’ Rights

Matthew Cavedon

In commemoration of National Crime Victims’ Rights Week at the end of April, Detroit’s chief prosecutor Kym Worthy promised that her office “must be accountable” to victims. “We cannot just give lip service.… We must mean it. We must be out and bold about it. We must live it.” The US Department of Justice chimed in with support for the campaign, too. Most prosecutors think of themselves as representing people, not just the government’s interests. But they sometimes serve more as petty gatekeepers than champions of the vulnerable. Victims deserve better than having to rely on bureaucrats: they should be able to hire private attorneys to prosecute criminal cases.

Nevertheless, government prosecutors do not always go to the mat for victims. The victims’ rights movement arose in part because prosecutors failed to meaningfully involve victims in cases. One leading organization, Marsy’s Law for All, is named after a woman who, in 1983, was stalked and killed by a former partner. A week later, Marsy’s mother ran into the murderer at the grocery store—prosecutors had not notified the family that he had been released on bail. The family channeled its outrage into a decades-long effort to enact laws guaranteeing victims the rights to be notified about, involved in, and heard concerning criminal cases.

The problems run deeper than shortcomings in managing ongoing cases: prosecutors sometimes fail to bring charges at all. In 2014, Michigan State grad Amanda Thomashow provided a statement to campus police detailing how she had been sexually assaulted during a medical exam by athletic doctor Larry Nassar. The police pressed state prosecutor Stuart Dunnings III to bring charges three times, but he declined to do so, and Nassar was not prosecuted until another two years passed. By that time, Dunnings himself had been arrested on 15 counts relating to prostitution.

Other public authorities failed Nassar’s victims, too. Private lawyers later helped victims secure a nearly $140 million settlement from federal authorities who failed to properly investigate the case while also extracting almost $1 billion in damages from Michigan State and leading athletic bodies.

Victims like Marsy’s family and Thomashow should not have to depend on government prosecutors to seek justice. Fortunately, there is a historical alternative that could be revived: private prosecutions. 

Law professor Emma Kaufman has noted that most Americans assume that the government has a monopoly on bringing criminal prosecutions. But not until the late-nineteenth century did private prosecution fall out of favor. Before this, government prosecutors “were often minor figures, such as glorified clerks or private attorneys, who organized the calendar while victims and preventive societies did the heavy lifting of seeking justice.” 

These norms did not reflect a privatized sense of justice, as if crime were merely a dispute between the accused offender and the purported victim. Rather, because crime was understood to harm the public as a whole, “any citizen could file a criminal complaint.” Private prosecution was considered collective self-governance.

These historical practices have not entirely disappeared. Even today, Kaufman’s research reveals that only a quarter of American criminal cases “must, as a matter of law, be managed by a public prosecutor.” In seven states, private citizens can “initiate and litigate a criminal case,” while 20 others let private prosecuting attorneys litigate cases subject to certain constraints.

But due to court barriers and a lack of awareness among the public and lawyers alike, few take advantage of these avenues. There are plenty of attorneys who could do the job and already have extensive experience working to protect crime victims, as the Nassar case demonstrates. Victims should be able to put such expertise to work seeking convictions, not just money.

Reintroducing a private angle to criminal prosecution would involve a shift in perspective, revisiting hostile changes to the law made in the last century, and developing new practice areas for private attorneys. Bold innovation is badly needed. Victims deserve real options—not a government monopoly.