58 Pages Posted: 10 Jun 2022
Date Written: May 30, 2022
As support has grown to reduce the footprint of criminal law by defunding the police, volunteer prosecution—a practice that has garnered little attention—continues to expand criminal law’s footprint. Volunteer prosecutors come in many different forms, but their core similarity is that they all prosecute crime without getting paid. Some are entry-level lawyers seeking to gain a foothold in the legal profession, while others are retirees seeking to contribute to their communities. Others work full-time paid jobs in civil practice but volunteer to prosecute some criminal cases too. Many volunteers bring only misdemeanors or petty offenses—prosecutions that disproportionately burden people of color. The racial disparity of those prosecutions prompted a large Minnesota law firm to cancel its volunteer prosecutor program after police killed George Floyd.
This Article provides the first scholarly treatment of volunteer prosecutors. It aims to understand the nature and motivations of this practice by conducting a content analysis of news stories and interviewing law school career services employees. It then examines those findings through the theoretical lens of the sociology of volunteer work. It relies on these sources to build a taxonomy of the various forms of volunteer prosecution and catalog some places where it occurs.
Volunteer prosecution may offer substantial benefits, particularly to recent law school graduates trying to gain paid work as prosecutors in an office that does not have an opening. But volunteer prosecution raises systemic normative concerns. This Article focuses on one particularly salient concern: volunteer prosecution allows the government to cast a wider net in criminal law than the one that the legislature afforded. That net disproportionately ensnares people of color. Stepping back a bit, the most meaningful constraint on prosecutors’ authority is their limited budgets, but volunteer prosecution allows prosecutors’ offices to evade budget constraints and bring low-level misdemeanor or petty offense cases even when elected officials have not appropriated sufficient funds to bring those cases. Low-level prosecutions disproportionately target poor people of color. Compounding the net-widening problem, volunteer prosecution may skew toward individuals with intergenerational wealth—a group that will be less able to identify with and therefore likely will treat more harshly the largely poor defendants who disproportionately populate our criminal legal systems.
Keywords: criminal law, criminal procedure, prosecutors, prosecutor pay, net widening
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