Criminal Justice, Inc.
69 Pages Posted: 30 Oct 2017 Last revised: 13 May 2018
Date Written: April 23, 2018
To what extent can criminal justice be privatized? In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes, extracting payment from shoplifting suspects for a promise not to call the police. This Article examines what their decisions reveal about our public system of criminal justice and the concerns of the agents who populate it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how industry has penetrated new parts of the criminal process, administering deterrent sanctions to resolve thousands of shoplifting allegations each year.
Proponents of private justice claim that everyone wins. Critics (and the only court to opine so far) say it’s blackmail. The Article takes a tentative middle ground: while “retail justice” is not the American ideal, it nonetheless may be preferable to public criminal justice, at least if certain conditions are met. This is because private justice subsists upon — and appears to mitigate — the severity of the public justice system. Indeed, cast in the light of public authorities’ acquiescence, private justice can be seen as a novel form of decriminalization. Rather than cancel the private justice experiment, therefore, as one court is poised to do, the state should aim to foster optimal conditions for its success. The Article makes several recommendations to that end.
Extending the central analysis, the Article then shows how the study of private justice leads to fresh perspectives on some important criminal justice issues. It suggests, for example, that the costs to crime victims of assisting the prosecution may be a feature of the system, not a bug, if they encourage victims to invest in efficient crime-deterring precautions. It also complicates legal academic models of police and prosecutorial behavior built on maximizing arrests and convictions. The Article concludes by identifying conditions that conduce to private criminal justice and speculating about the next frontiers.
Keywords: privatization, prosecutors, police, precautions, theft, private enforcement, criminal
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