[Congressional Record Volume 146, Number 52 (Tuesday, May 2, 2000)]
[Senate]
[Pages S3249-S3251]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   IMPORTANCE OF PRIVATE PROSECUTIONS

  Mrs. FEINSTEIN. Mr. President, last week, during the debate on a 
proposed constitutional amendment to protect the rights of crime 
victims, Senator Leahy made several lengthy statements challenging some 
of the facts set forth by supporters of the amendment, including 
myself. We responded to many of those arguments at the time--and, I 
believe, refuted them. I do want not burden the record now by repeating 
all our contentions or making new ones.
  However, there is one argument that the Senator from Vermont made 
during the waning hours of debate on the amendment that I find 
particularly troubling. It involves the role of victims in criminal 
proceedings at the time our Constitution was written. Because I believe 
the Senator's comments contradict the clear weight of American history, 
I feel compelled to respond.
  Here is the argument Senator Leahy disputes: At the time the 
Constitution was written, the bulk of prosecutions were by private 
individuals. Typically, a crime was committed and then the victim 
initiated and then pursued that criminal case. Because victims were 
parties to most criminal cases, they enjoyed the basic rights to 
notice, to be present, and to be heard under regular court rules. Given 
the fact that victims already had basic rights in criminal proceedings, 
it is perhaps understandable that the Framers of our Constitution did 
not think to provide victims with protection in our national charter.
  The Senator from Vermont tried to rebut this argument. Citing an 
encyclopedia article and a couple of law review articles, he claimed 
that, by the time of the Constitutional Convention, public prosecution 
was ``standard'' and private prosecution had largely disappeared.
  Because Senator Leahy's comments suggest that some confusion about 
this issue lingers among my colleagues, I would now like to provide 
some additional evidence demonstrating that private prosecutions had 
not only not largely disappeared in the late 18th century but in fact 
were the norm.
  First, it is important to concede one point: some public prosecutors 
did exist at the time of the framing of the Constitution. Certainly, by 
then, the office of public prosecutor had been established in some of 
the colonies--such as Connecticut, Vermont, and Virginia. But just 
because some public prosecutors existed in the late 18th century does 
not mean that they played a major role or that public prosecution had 
supplanted private prosecution. In fact, criminal prosecution in 18th 
century English and colonial courts consisted primarily of private 
suits by victims. Such prosecutions continued in many States throughout 
much of the 19th century.
  Thus, contrary to Senator Leahy's suggestion that a ``system of 
public prosecutions'' was ``standard'' at the time of the framing of 
the Constitution, the evidence is clear that private individuals--
victims--initiated and pursued the bulk of prosecutions before, during, 
and for some time after the Constitution Convention.
  Let's look, for example, at the research of one scholar, Professor 
Allen Steinberg, who spent a decade sifting through dusty criminal 
court records in Philadelphia and wrote a book about his findings. 
Based on a detailed review of court docket books and other evidence, 
Professor Steinberg determined that private prosecutions continued in 
that city through most of the 19th century.

  In Professor Steinberg's words, by the mid-19th Century, ``private 
prosecution had become central to the city's system of criminal law 
enforcement, so entrenched that it would prove difficult to dislodge. . 
. .''
  Of course, Philadelphia was the city where the Constitution was 
debated, drafted, and adopted. And for decades it was our new nation's 
most populous city--and its cultural and legal capital as well.
  It is difficult to reconcile the assertion that a ``system of public 
prosecutions'' was ``standard'' at the time of the Constitution 
Convention with historical research showing that, in the same city 
where the Convention was held, private prosecutions--inherited from 
English common law--continued to be ``standard'' through the mid-19th 
century.
  It is not surprising that the Senator from Vermont would conclude 
that public prosecution had replaced private prosecution by the late 
18th century. A cursory exam of historical documents might lead to such 
a conclusion, for the simple reason that documents regarding public 
prosecutors and public prosecutions (what few there were) are easier to 
find than documents regarding private prosecutions. As Stephanie Dangel 
has explained in the Yale Law Journal:

       [e]arly studies concentrating on legislation naturally 
     over-emphasized the importance of the public prosecutor, 
     since a private prosecution system inherited from the common 
     law would not appear in legislation. Examinations of 
     prosecutorial practice were cursory and thus skewed. The most 
     readily accessible information relating to criminal 
     prosecutions predictably concerned the exceptional, well 
     publicized cases involving public prosecutors, not the vast 
     majority of mundane cases, involving scant paperwork and 
     handled through the simple procedures of private prosecution 
     . . .

  Dangel has summed up recent historical research into the nature of 
prosecution in the decades leading up to the framing of the 
Constitution as follows:

       First, private individuals, not government officials, 
     conducted the bulk of prosecution. Second, the primary work 
     of attorneys general and district attorneys consisted on non-
     prosecutorial duties, with their prosecutorial discretion 
     limited to ending, rather than initiating or conducting, 
     prosecutions.

  Regarding the prevalence of private prosecution in the colonies, 
Dangel noted:

       Seventeenth and eighteenth century English common law 
     viewed a crime as a wrong inflicted upon the victims not as 
     an act against the state. An aggrieved victim, or interested 
     party, would initiate prosecution. After investigation and 
     approval by a justice of the peace and grand jury, a private 
     individual would conduct the prosecution, sometimes with the 
     assistance of counsel. . . . Private parties retained 
     ultimate control, often settling even after grand juries 
     returned indictments. Contemporaneous sources confirm the 
     relative insignificance of public prosecutions in the 
     colonial criminal system. Only five of the first thirteen 
     constitutions mention a state attorney general, and only 
     Connecticut mentions the local prosecutor. Secondary 
     references are similarly rare. Finally, the earliest judicial 
     decision voicing disapproval of private prosecution did not 
     appear until 1849. No decision affirming public prosecutors' 
     virtually unreviewable discretion appeared before 1883.

  The historical evidence is clear: Because victims were parties to 
most criminal prosecutions in the late 18th century, they had basic 
rights to notice, to be present, and to participate in the proceedings 
under regular court rules. Today, victims are not parties to criminal 
prosecutions, and they are often denied these basic rights. Thus, a 
constitutional victims' rights amendment would restore some of the 
rights that victims enjoyed at the time the Framers drafted the 
Constitution and Bill of Rights.
  If this historical evidence about prosecutions in the colonies is not 
enough, I would repeat a point Senator Leahy

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made himself last week: that in England, any crime victim had the right 
to initiate and conduct criminal proceedings all the way up to the 
middle of the 19th century. As we know from Senator Byrd's enlightening 
remarks last week, many of the rights and liberties of our 
Constitution--such as those for criminal defendants--have their roots 
in English history and the English constitution.
  Given the fact, then, that virtually all the protections for criminal 
defendants in the Bill of Rights have English antecedents--including 
habeas corpus, trial by jury, due process, prohibition against 
excessive fines, and so on--it is hardly a stretch to think that the 
lack of rights for crime victims in the Bill of Rights would reflect an 
English antecedent as well: the long-established right of victims to 
prosecute crimes themselves.
  Let me be clear: I do not support a return to the old system of 
private prosecution. My only point is that we can cogently explain why 
the Framers did not include a single word on behalf of crime victims in 
the Constitution. And, given the relatively recent development in the 
United States of a system of 100% public prosecution, we can offer 
strong reasons to restore basic rights for victims in our criminal 
justice system.
  Just so there is no more confusion on this point, let us return to 
Professor Allen Steinberg, a legal historian who researched and wrote a 
326-page book on prosecutions in 19th century Philadelphia--the most 
in-depth study of private prosecution in the United States.
  Did Professor Steinberg find that public prosecution was ``standard'' 
in Philadelphia even decades after the Constitution and Bill of Rights 
were adopted, as Senator Leahy suggests? No. In fact, he found that 
victims directly prosecuted crimes in Philadelphia until at least 1875.
  The fact that Professor Steinberg's research is on Philadelphia is 
undeniably important. Not only did the Framers live in Philadelphia 
while debating and drafting the Constitution, but many had resided 
there earlier as well.
  For example, James Madison--sometimes called the Father of our 
Constitution--was not only a delegate at the Philadelphia Convention, 
he served in the Continental Congress in Philadelphia from March 1780 
through December 1783. I have little doubt that Madison knew that the 
bulk of criminal prosecutions in Philadelphia consisted of private 
prosecutions. Here is what Professor Steinberg writes about private 
prosecutions in Philadelphia:

       [T]he criminal law did have a central place in the everyday 
     social life of mid-nineteenth-century Philadelphia. Private 
     prosecution--one citizen taking another to court without the 
     intervention of the police--was the basis of law enforcement 
     in Philadelphia and an anchor of its legal culture, and this 
     had been so since colonial times . . . Well past mid-
     century, private prosecution remained popular among a 
     broad spectrum of ordinary Philadelphians. Familiar and 
     frequent, it was rooted in a complex political and legal 
     structure that linked political parties, courthouses, 
     saloons and other centers of popular culture, real crime 
     and dangerous disorder, and ordinary disputes and 
     transgressions of everyday life . . . Through the process 
     of private prosecution, the criminal courts of 
     Philadelphia developed a distinctive set of practices and 
     a culture that was remarkably resilient in the face of 
     constant official hostility and massive social change. . . 
     .

  He continues:

       Private prosecution refers to the system by which private 
     citizens brought criminal cases to the attention of court 
     officials, initiated the process of prosecution, and retained 
     considerable control over the ultimate disposition of cases--
     especially when compared with the two main executive 
     authorities of criminal justice, the police and the public 
     prosecutor . . . Private prosecution . . . [was] firmly 
     rooted in Philadelphia's colonial past. [It was an] example[] 
     of the creative American adaptation of the English common 
     law. By the seventeenth century, private prosecution was a 
     fundamental part of English common law. Most criminal cases 
     in England proceeded under the control of a private 
     prosecutor, usually a relatively elite person, and often 
     through a private society established for that purpose.

  Professor Steinberg concludes that before the second half of the 19th 
Century, private prosecutions were the ``dominant'' mode of criminal 
justice in Philadelphia. He explains how this system worked:

       When a person wanted to initiate a criminal prosecution, he 
     or she went off to the nearest alderman's office, complained, 
     and usually secured a warrant for the arrest of the accused. 
     After the alderman's constable escorted the defendant to the 
     office, the alderman conducted a formal hearing, and the 
     process was underway. Most often, private prosecutors charged 
     their adversaries with assault and battery, larceny, or some 
     form of disorderly conduct. Well before 1850, aldermen and 
     litigants established patterns of case disposition that would 
     last through most of the century. Most criminal cases were 
     fully disposed of by the alderman . . .

  Professor Steinberg also notes that:

     [m]uch of the time, people used the criminal law in their 
     private affairs in order to combat a perceived injustice or 
     to assert basic rights they felt were violated. There was no 
     better example of this than battered wives. Women regularly 
     brought charges against men for assault . . .. Most often, . 
     . . the batterer was punished in some manner . . . .

  And what of the public prosecutor? Contrary to Senator Leahy's 
suggestion that public prosecutors had consolidated control over 
prosecutions by the late 18th century, Professor Steinberg found that--
even by the mid-19th Century--the Philadelphia public prosecutor did 
little more than act as a clerk to victims who were pursuing private 
prosecutions. Here is what Professor Steinberg found:

       One of the major reasons for the weakness of the court 
     officials was the limited power of the public prosecutor. 
     Most discretion was exercised by the magistrates and private 
     parties, some by the grand and petit juries, and little by 
     anyone else. As late as the mid-1860s, for example, jurists 
     agreed that, despite their importance on the streets, the 
     police had no role in ordinary criminal procedure. More 
     importantly, the same was basically true for the district 
     attorney. In an 1863 outline of criminal procedure, Judge 
     Joseph Allison did not mention the police and gave no 
     discretionary role to the district attorney in the ``usual 
     and ordinary mode of procedure.'' . . . . The discretion of 
     the private parties in criminal cases was not checked by 
     the public prosecutor. Instead, the public prosecutor in 
     most cases adopted a stance of passive neutrality. He was 
     essentially a clerk, organizing the court calendar and 
     presenting cases to grand and petit juries. Most of the 
     time, he was either superseded by a private attorney or 
     simply let the private prosecutor and his witnesses take 
     the stand and state their case.

  And the dominance of private prosecutions was certainly not unique to 
Philadelphia. Other legal historians who have sifted through court 
records have reached similar conclusions to Professor Steinberg.
  In a 1995 article in the American Journal of Legal History, for 
example, Robert Ireland concluded that ``By 1820 most states had 
established local public prosecutors. . . . Yet, because of 
deficiencies in the office of public prosecutor, privately funded 
prosecutors constituted a significant element of the state criminal 
justice system throughout the nineteenth century.''
  In a 1967 article in the New York University Law Review, William E. 
Nelson found that private prosecution was commonplace in a typical 
Massachusetts county between 1760 and 1810. Criminal trials, he writes, 
were ``in reality contests between subjects rather than contests 
between government and subject.''
  And the list goes on: other scholars who have acknowledged the 
prevalence of private prosecution in the American colonies and 
fledgling United States include Richard Gasjins (Connecticut), Michael 
S. Hindus (Massachusetts and South Carolina), William M. Lloyd, Jr. 
(Pennsylvania), and Edwin Surrency (Philadelphia). Indeed, William F. 
McDonald notes in the American Criminal Law Review that a system of 
private prosecution was preferred by many around the time of the 
American Revolution because of a fear of tyranny associated with 
government prosecutors and because it was less expensive.
  In the face of this overwhelming historical evidence that the bulk of 
prosecutions at the time of the Constitutional Convention were private, 
the Senator from Vermont suggested instead that public prosecutions 
were ``standard.'' He relied on several sources for that conclusion: a 
four-page article in a legal encyclopedia and a few law review article 
quotes, one lacking citation and the rest citing the same four-page 
encyclopedia article.
  Of particular importance seems to be a quotation from an article in 
the Rutgers Law Review that asserted that ``[b]y the time of the 
Revolution, public prosecution in America was standard, and private 
prosecution, in effect, was gone.'' But reading closer, one finds that 
the support for this statement was none other than a statement in the 
oft-cited four-page encyclopedia

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article that ``by the time of the American Revolution, each colony had 
established some form of public prosecution. . . .''
  Again, however, we have seen that the mere existence of ``some form 
of public prosecution'' at the time of the American Revolution does not 
mean that public prosecution was ``standard.'' And it certainly does 
not mean that public prosecutors handled the bulk of prosecutions or 
had much a prosecutorial role. They did not. Rather, the weight of 
historical evidence on this subject--a subject which has been 
extensively researched and reviewed by some of our country's most 
distinguished legal historians and other scholars--suggests that 
private prosecutions were dominant.
  Mr. President, I am glad to have the chance to correct the historical 
record on this point. I have the utmost respect for my distinguished 
colleague from Vermont and I thank him for his thoughtful remarks on 
the history of prosecution in this country. However, I believe that my 
main point stands: we need to restore rights that crime victims enjoyed 
at the time the Framers drafted the Constitution and Bill of Rights.

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