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Why is criminal justice only partially privatized?

March 7, 2010

Both private policing and restorative justice emphasize the
experience of the crime victim, and both grow out of frustration with
the public enforcement system.  Just as private couriers respond to
shortcomings at the U.S. Postal Service, private policing and
restorative justice appear when victims of crime get no satisfaction
from public prosecutors, criminal court judges, and public corrections
officials.  In this economic analysis, private firms spring up to meet a

Simmons then confronts a dilemma:  private firms have largely
succeeded in the realm of policing, but not so in the arenas of criminal
adjudication or criminal punishment.  Private police now identify an
enormous number of criminal suspects after the fact, but there is
nowhere to send them.  The victims of the alleged crimes have few
satisfying alternatives to public criminal adjudication or public
criminal punishment.  The capacity of restorative justice programs such
as victim-offender mediation is tiny, typically measured in the

Private capacity to impose something akin to criminal penalties is
expanding when it comes to small crimes.  In some of the most
interesting and original research presented here, Simmons surveys
journalistic sources for evidence that the purchasers of private
enforcement impose their own low-level punishments.  For instance, many
large retailers (including Wal-Mart) only issue warnings to persons they
accuse of stealing small amounts of merchandise for the first time.
Property owners eject perpetrators from the premises; employers fire
their employees accused of theft and other crimes.

What about private adjudication and punishment for more serious
crimes? Simmons suggests (pages 962-967) that parties should resort more
frequently to victim-offender mediation in a broader range of cases,
without waiting for public prosecutors to file charges or for criminal
court judges to refer cases to mediation.  The article explores the
possible uses of mediation in serious property crimes, a few crimes of
violence in organizational settings (such as employee assault cases),
and even intra-family violence.  He envisions public prosecutors as
monitors of this private system, standing ready to file charges in the
public system if the private outcome does not adequately protect public

Read the whole entry.


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