If only the government can prosecute a particular kind of case, and has discretion in whether to do so, cases can go un-prosecuted just because the defendant is a government official, or the friend of a government official. Same if the government can take over a private case and subsequently drop it.
What can go wrong if we err in the other direction? If _anybody_ can bring a case, a secret friend of the defendant might do so, conduct part of the prosecution (badly), then drop the case while poisoning the well (or running out the clock) against anyone else taking up the case. (I presume we still have a double jeopardy rule and a statute of limitations.)
So we probably want to limit prosecutions to actual victims, or government acting on their behalf. Or somebody documentably close to them (in case the victims are dead, unconscious, legally unfit, etc.)
Another concern is people using the criminal code to harass and intimidate, rather than because they actually have a strong criminal case that the government has for some reason refused to prosecute. The more people are allowed to bring prosecutions, the more we need substantial penalties for wrongful prosecution.
If for violent crimes you already have "snitches get stitches", then add private prosecutions and get "bring your case and lose your face."
The state is always better at protecting its own than protecting 'civilians' from such threats, and that protection of prosecutors in plenty of places like Mexico still isn't all that good.
And in that situation, a potential private prosecutor is caught between a rock of criminal threats and a hard place of state threats.
Consider some possibilities.
The state brings charges itself - that's just the status quo.
The state can't bring charges until a private party starts a prosecution, but then criminals now just need to make sure the first step is never taken and intimidate those private parties from doing so, which is a lot easier for them to do.
Something similar holds for when the state may be ok with a private prosecution, but doesn't think the case is worth state resources. You still only need to intimidate the private party.
How about if either the state or private party can start the case, but if it starts private, the state can take over? Again, if the state is ok with it, but just doesn't want to handle a private case, the criminal just needs to intimidate the private party.
But if the state was more than indifferent, and didn't want the prosecution to happen in the first place, then it can take over and end the case or throw the case.
But let's say the state wants the case to go away but for some reason can't make it go away, then what? Then the private party is now ... an enemy of the state. The prospect of which is also pretty intimidating. And the signal of the state's refusal to take the case is maybe all it takes to make this prospect seem plausible and thus deter one from bringing the case privately.
To feel safe from such intimidation from criminals and the state itself, the private party would need to be able to afford the services of some third entity with a strong interest in the successful prosecution of the case and also sufficiently terrifying to both criminals and state officials to counter-intimidate their intimidation.
When the Forces of Evil join forces, you are in for trouble. But you would want something like the unification of the unholy trinity of a law firm, an insurance company, and an army of ruthless cut-throats.
I'll leave it to the philosophers to distinguish between that and a state, but regardless, "Better call Saul" ain't gonna cut it. More like, "Don Corleone, Esquire, Attorney at Law ... and ... eh ... you know ... "associates". LLP." After all, those guys were already in the business of selling ... 'protection'.
The first step is to stop making so many vices and substances illegal.
Perhaps I'm wrong, but it seems most cartels/syndicates exist to exploit black (and maybe gray) markets, and that they don't just form as extortion agencies (that's the goverment's job).
Once you remove all the "crimes" associated with non-victim or moral offenses, a lot, maybe most, maybe all, of the violence associated with those are ended. So the situation becomes easier.
If you take away organized crime and look at murder, it seems, perhaps I'm wrong, but it seems most non-criminal acts murder, i.e. gang related stuff, is domestic murder (I guess f someone has statistics that show this to be wrong, I'd be curious what made up most murders if not domestic stuff).
For domestic murder, you usually don't have a big complicated mix of all kinds of cops and robbers stuff (and alcohol and drug and sydicate stuff) you have, sadly, a situation that many people saw coming. The simple solution to this to allow revenge killing and/or make it a tort issue, not a government issue. If John kills Sally, what business is it of mine unless I'm friends/family with Sally?
Why do I want to be taxed so that the "gov" can prosecute John? Is John really a threat to me? Nope, he tends to only kill his female partners, I'm worse off by him being prosecuted, not better off.
I once had a debate with a group of philospher thinkers and 90% felt that if murder was decriminalized, the murder rate wouldn't change (perhaps it would go down, even) and that prosecution of murder doesn't do anything except provide an additional cost to society (and enriches prison guards, who in California, make more money than PhDs, even though they barely graduated highschool and are the worst form of mouth-breathers in society).
Require that all cases actually resolve the dispute, with the understanding that if parties to the dispute are left out, the dispute has not truly been resolved. The other parties can re-open the case, and the parties who excluded them and prematurely closed the case can be charged with perjury.
Good piece. I highlighted the Cook County part on my blog (EconLog) this weekend. Someone asked a good question, though: why would you expect the splinters of wood to go the other way even if the Black Panthers were shooting? They wouldn't shoot through the wall. They would shoot through the windows.
These sorts of stories are the clearest evidence that government in America has gone completely rotten. Cops who lift money off innocent motorists are acting as armed criminals and deserve to be treated accordingly.
Interesting....America cops are thugs, imho, worse than the cartels in Mexico.
A friend of mine was driving down from the states (not something I'd recommend) and was pulled over by the cartel in a border state. He was scared out of his mind.
They had machine guns, etc., and demanded he unlock his phone....they went through all his pictures, his wallet, the car, searched everything, then said, "okay, you're free to go."
I asked him if they took anything. "No," he said. "And I had a bunch of cash in my wallet."
Haha....so, moral of the story, the Mexican cartels are more ethical than American cops. They just wanted to see if the guy was running drugs or guns for a rival cartel and when they were satisfied he was just a guy, they let him go, without loss.
If you picked that particular case because it pits "The King's Friends" against "James King's Friends", then bravo!
The original incident happened over nine years ago, July 2014. SCOTUS sent the case back in February 2021, and the 6th Circuit took another 19 months to ... um, it's complicated and technical and would require some explanation. But the bottom line is that it wasn't what IJ asked for, and it took another two months for the 6th Circuit to deny a rehearing.
So IJ petitioned SCOTUS for a cert writ in March 2023, Cato and Public Citizen both filed an amicus curiae. The government asked and received three month-long extensions, then filed a response in late July, and IJ responded to that in just two weeks. The petition was supposed to go to conference last Tuesday, but they didn't decide it, so it was redistributed just yesterday! It could be a while before we learn what SCOTUS will do.
Update: SCOTUS denied King's petition for certiorari on October 30th. Justice Sotomayor wrote a statement that while disappointed wasn't exactly a dissent, and it's fair to say she invited other circuits to create a split. Still, the technical legal issue involving the judgment bar is distant from the merits of the case relating to the details of the incident.
These days there are "gangs" who commit such crimes at the Deep State's behest -- Antifa and BLM are examples. The KKK did the same when the people running the State hated a different group. So I would allow private prosecution of any crime, so long as the prosecutor suffered a loss or was put in fear as a result of the crime. That should be enough for standing.
The Institute for Justice does badly needed work.
The Institute for Justice is the only charity I routinely give money to.
If only the government can prosecute a particular kind of case, and has discretion in whether to do so, cases can go un-prosecuted just because the defendant is a government official, or the friend of a government official. Same if the government can take over a private case and subsequently drop it.
What can go wrong if we err in the other direction? If _anybody_ can bring a case, a secret friend of the defendant might do so, conduct part of the prosecution (badly), then drop the case while poisoning the well (or running out the clock) against anyone else taking up the case. (I presume we still have a double jeopardy rule and a statute of limitations.)
So we probably want to limit prosecutions to actual victims, or government acting on their behalf. Or somebody documentably close to them (in case the victims are dead, unconscious, legally unfit, etc.)
Another concern is people using the criminal code to harass and intimidate, rather than because they actually have a strong criminal case that the government has for some reason refused to prosecute. The more people are allowed to bring prosecutions, the more we need substantial penalties for wrongful prosecution.
If for violent crimes you already have "snitches get stitches", then add private prosecutions and get "bring your case and lose your face."
The state is always better at protecting its own than protecting 'civilians' from such threats, and that protection of prosecutors in plenty of places like Mexico still isn't all that good.
And in that situation, a potential private prosecutor is caught between a rock of criminal threats and a hard place of state threats.
Consider some possibilities.
The state brings charges itself - that's just the status quo.
The state can't bring charges until a private party starts a prosecution, but then criminals now just need to make sure the first step is never taken and intimidate those private parties from doing so, which is a lot easier for them to do.
Something similar holds for when the state may be ok with a private prosecution, but doesn't think the case is worth state resources. You still only need to intimidate the private party.
How about if either the state or private party can start the case, but if it starts private, the state can take over? Again, if the state is ok with it, but just doesn't want to handle a private case, the criminal just needs to intimidate the private party.
But if the state was more than indifferent, and didn't want the prosecution to happen in the first place, then it can take over and end the case or throw the case.
But let's say the state wants the case to go away but for some reason can't make it go away, then what? Then the private party is now ... an enemy of the state. The prospect of which is also pretty intimidating. And the signal of the state's refusal to take the case is maybe all it takes to make this prospect seem plausible and thus deter one from bringing the case privately.
To feel safe from such intimidation from criminals and the state itself, the private party would need to be able to afford the services of some third entity with a strong interest in the successful prosecution of the case and also sufficiently terrifying to both criminals and state officials to counter-intimidate their intimidation.
When the Forces of Evil join forces, you are in for trouble. But you would want something like the unification of the unholy trinity of a law firm, an insurance company, and an army of ruthless cut-throats.
I'll leave it to the philosophers to distinguish between that and a state, but regardless, "Better call Saul" ain't gonna cut it. More like, "Don Corleone, Esquire, Attorney at Law ... and ... eh ... you know ... "associates". LLP." After all, those guys were already in the business of selling ... 'protection'.
The first step is to stop making so many vices and substances illegal.
Perhaps I'm wrong, but it seems most cartels/syndicates exist to exploit black (and maybe gray) markets, and that they don't just form as extortion agencies (that's the goverment's job).
Once you remove all the "crimes" associated with non-victim or moral offenses, a lot, maybe most, maybe all, of the violence associated with those are ended. So the situation becomes easier.
If you take away organized crime and look at murder, it seems, perhaps I'm wrong, but it seems most non-criminal acts murder, i.e. gang related stuff, is domestic murder (I guess f someone has statistics that show this to be wrong, I'd be curious what made up most murders if not domestic stuff).
For domestic murder, you usually don't have a big complicated mix of all kinds of cops and robbers stuff (and alcohol and drug and sydicate stuff) you have, sadly, a situation that many people saw coming. The simple solution to this to allow revenge killing and/or make it a tort issue, not a government issue. If John kills Sally, what business is it of mine unless I'm friends/family with Sally?
Why do I want to be taxed so that the "gov" can prosecute John? Is John really a threat to me? Nope, he tends to only kill his female partners, I'm worse off by him being prosecuted, not better off.
I once had a debate with a group of philospher thinkers and 90% felt that if murder was decriminalized, the murder rate wouldn't change (perhaps it would go down, even) and that prosecution of murder doesn't do anything except provide an additional cost to society (and enriches prison guards, who in California, make more money than PhDs, even though they barely graduated highschool and are the worst form of mouth-breathers in society).
Require that all cases actually resolve the dispute, with the understanding that if parties to the dispute are left out, the dispute has not truly been resolved. The other parties can re-open the case, and the parties who excluded them and prematurely closed the case can be charged with perjury.
Good piece. I highlighted the Cook County part on my blog (EconLog) this weekend. Someone asked a good question, though: why would you expect the splinters of wood to go the other way even if the Black Panthers were shooting? They wouldn't shoot through the wall. They would shoot through the windows.
These sorts of stories are the clearest evidence that government in America has gone completely rotten. Cops who lift money off innocent motorists are acting as armed criminals and deserve to be treated accordingly.
Do you think that similar things using a different legal pretext didn't happen in the past?
Interesting....America cops are thugs, imho, worse than the cartels in Mexico.
A friend of mine was driving down from the states (not something I'd recommend) and was pulled over by the cartel in a border state. He was scared out of his mind.
They had machine guns, etc., and demanded he unlock his phone....they went through all his pictures, his wallet, the car, searched everything, then said, "okay, you're free to go."
I asked him if they took anything. "No," he said. "And I had a bunch of cash in my wallet."
Haha....so, moral of the story, the Mexican cartels are more ethical than American cops. They just wanted to see if the guy was running drugs or guns for a rival cartel and when they were satisfied he was just a guy, they let him go, without loss.
If you picked that particular case because it pits "The King's Friends" against "James King's Friends", then bravo!
The original incident happened over nine years ago, July 2014. SCOTUS sent the case back in February 2021, and the 6th Circuit took another 19 months to ... um, it's complicated and technical and would require some explanation. But the bottom line is that it wasn't what IJ asked for, and it took another two months for the 6th Circuit to deny a rehearing.
So IJ petitioned SCOTUS for a cert writ in March 2023, Cato and Public Citizen both filed an amicus curiae. The government asked and received three month-long extensions, then filed a response in late July, and IJ responded to that in just two weeks. The petition was supposed to go to conference last Tuesday, but they didn't decide it, so it was redistributed just yesterday! It could be a while before we learn what SCOTUS will do.
I did not pick it for that reason. I picked it because I heard a good deal about it at a recent IJ event and it fitted points I wanted to make.
Update: SCOTUS denied King's petition for certiorari on October 30th. Justice Sotomayor wrote a statement that while disappointed wasn't exactly a dissent, and it's fair to say she invited other circuits to create a split. Still, the technical legal issue involving the judgment bar is distant from the merits of the case relating to the details of the incident.
Brilliant summary and possible solution!
These days there are "gangs" who commit such crimes at the Deep State's behest -- Antifa and BLM are examples. The KKK did the same when the people running the State hated a different group. So I would allow private prosecution of any crime, so long as the prosecutor suffered a loss or was put in fear as a result of the crime. That should be enough for standing.