Privatizing Criminal Procedure

39 Pages Posted: 5 Apr 2018 Last revised: 29 Mar 2019

See all articles by J.D. King

J.D. King

Washington and Lee University - School of Law

Date Written: April 2, 2018


As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.

Keywords: Constitutional Rights and Criminal Prosecution; Criminal Defendant; Criminal Justice System; Criminal Prosecution; Government Funding of Criminal Litigation; Privatization of Criminal Procedure; Rights-Based User Fees; Surcharge on Defendants; User Funding of Criminal Litigation

JEL Classification: K14, K4, K40, K41

Suggested Citation

King, John Derek, Privatizing Criminal Procedure (April 2, 2018). Georgetown Law Journal, Vol. 107, 2019, Forthcoming, Washington & Lee Legal Studies Paper No. 2018-07, Available at SSRN: or

John Derek King (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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