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Outsourcing Criminal Prosecution?: The Limits of Criminal Justice Privatization

34 Pages Posted: 24 Mar 2011  

Roger Fairfax

George Washington University - Law School

Abstract

In an era of scarce public resources, many jurisdictions are being forced to take drastic measures to address severe budgetary constraints on the administration of criminal justice. As prosecutors’ offices around the nation are being scaled back and enforcement priorities are being narrowed, one conceivable response is the outsourcing of the criminal prosecution function to private lawyers. Indeed, prosecution outsourcing currently is utilized in surprising measure by jurisdictions in the United States. This Article, prepared for the University of Chicago Legal Forum Symposium on Crime, Criminal Law, and the Recession, argues that the outsourcing trend in criminal justice – seen most prominently in the area of private prisons and policing – should not extend to criminal prosecution because such outsourcing is in tension with the constitutional and positive law norms regulating the public-private distinction. Furthermore, concerns about ethics, fairness, transparency, accountability, performance, and the important values advanced by the public prosecution norm all militate against the outsourcing of the criminal prosecution function to private lawyers.

Keywords: privatization, prosecutors, discretion

JEL Classification: K14, K41, K42, H57

Suggested Citation

Fairfax, Roger, Outsourcing Criminal Prosecution?: The Limits of Criminal Justice Privatization. University of Chicago Legal Forum, Vol. 2010, p. 265, 2010; GWU Legal Studies Research Paper No. 541; GWU Law School Public Law Research Paper No. 541. Available at SSRN: https://ssrn.com/abstract=1789886

Roger Fairfax (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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