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Private Prosecutors v. Private Prosecutions

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Here is a bit more explanation of the odd case of Robertson v. United States ex rel. Watson, dumped today by the Supreme Court, as noted here.

Suppose that the victim of domestic violence obtains a restraining order, and the perpetrator then violates the order by beating her up again. Suppose further that the government prosecuting office chooses not to proceed with a criminal contempt action. Let's say budget cuts result in that office simply not having enough prosecutors. But, says the DA, you can bring the criminal contempt action yourself.

Does it violate due process of law for the victim rather than a government official to prosecute a criminal case? Not so far. At the time the Constitution was written, this was much more common than it is today, but the practice still exists in some jurisdictions.

But the issue before the Supreme Court in Robertson was not who prosecutes the action but rather in whose name it is prosecuted, a subtle but important difference.

Robertson had a deal with the U.S. Attorney that he would not be prosecuted for this act of violence in return for pleading guilty to another act of violence. That deal should be binding in any action brought in the name of the United States, whoever actually prosecutes it. The four dissenting justices today opined that criminal actions must be brought in the name of the sovereign. Even if the victim prosecutes the action, it is still in the name of the state and by its authority, not in her own name. Actions in an individual's own name must be limited to civil ones.  Therefore plea agreements made by the sovereign's legal representative are binding, even if the victim tries to prosecute.

Justice Sotomayor tacked on a brief explanation, joined by Justice Kennedy, for her vote to join the Chief's dissent.

The Chief Justice would hold that criminal prosecutions, including criminal contempt proceedings, must be brought on behalf of the government. I join his opinion with the understanding that the narrow holding it proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders.
I suspect the Chief had a majority at one point and lost it. These opinions read like opinions prepared to decide the case, not to dump it. Justices sometimes add concurrences to explain that they only join an opinion of the Court on the understanding that its holding is narrow, but explaining that one joins a dissent from a DIG on the understanding that the holding it merely proposed would be narrow is something I have not seen before.

So it appears that private prosecutions survive and are not even endangered, provided they are brought in the name of the state and not used to do anything a government prosecutor could not do.

This could be an opportunity for lawyers and law firms who want to (or feel pressured to) do legal work pro bono publico. Prosecuting acts of violence that would otherwise go unpunished really is "for the public good," in contrast to the contra bono publico work of trying to get murderers off with less than they deserve, so often undertaken by big-name law firms.

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You should start charging tuition for this site.

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