[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
[[Page S3250]]
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
[[Page S3251]]
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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