Mike Fox
For most Americans, the image of criminal justice is a public one in which a government official, representing “The People,” brings charges against a defendant. We’re taught that crime is a harm against the state, and therefore the state has an exclusive monopoly on charging and punishing. However, as a 2024 article from New York University Law Professor Emma Kaufman in the University of Pennsylvania Law Review reveals, this state monopoly is a relatively recent invention—an ideology born in the late 19th century to justify the rise of professional police and normalize the use of prisons as a criminal sanction. By moving from a system of private prosecution to one of public control, we didn’t just change who sat at the counsel table; we redefined the nature of justice itself.
Before the turn of the 20th century, the public nature of criminal law meant something entirely different. It didn’t mean only the government could act; it meant everyone could act. Because crime harmed the community, any citizen could file a criminal complaint. In cities such as Philadelphia, the criminal court functioned more like a busy marketplace where private parties litigated their own cases, often using the court as a form of fee-based arbitration.
In this era, the public prosecutor wasn’t the untouchable titan we recognize today. They were often minor figures, such as glorified clerks or private attorneys, who organized the calendar while victims and preventive societies did the heavy lifting of seeking justice. Because these early prosecutors were viewed as private litigants rather than the embodiment of the immense power of the state—as they are today—they were governed by the same rules of accountability as everyone else. If a lawyer brought a baseless or malicious charge, they could be sued for damages under state tort law. There was no shield of immunity precisely because there was no monopoly on the law; power was diffused among the people, providing a natural check against abuse.
As cities grew and social disorder increased, the sheer volume of private litigation overwhelmed the courts. To manage the flood, governments began to empower elected public prosecutors as gatekeepers. This shift was a deliberate state-building project. By asserting that criminal power was the exclusive province of the government, the state was able to entrench public policing and normalize the use of prison as a remedy in criminal cases. Courts began to rule that if a crime was serious enough to warrant a prison sentence, a private lawyer couldn’t be trusted with it. Only a public official could oversee a remedy as harsh as prison.
Professor Kaufman suggests that by reimagining the prosecutor as a quasi-judicial official rather than a mere advocate, the American legal system began cementing two of its most damaging pillars: absolute prosecutorial immunity and plea-driven mass adjudication. There is a historical logic to this evolution: As the public prosecutor’s role shifted from a private litigant to a state officer tasked with the neutral administration of justice, courts felt a growing pressure to protect the office’s integrity. This reached a turning point in 1926 when the Second Circuit famously held that “the public interests require that [prosecutors] shall be free and fearless to act in the discharge of [their] official duties.”
However, while the evolution from private to public professional prosecutors facilitated some level of protection, the modern regime of absolute prosecutorial immunity was ultimately confected out of whole cloth by the Supreme Court in 1976—nullifying the clear command of Congress 105 years earlier. Section 1983 was explicitly intended to abrogate common-law immunities, mandating that “every person” acting under color of state law who deprives another of their rights “shall be liable to the party injured.”
By prioritizing judicial policy over the letter and spirit of the law, the Court traded individual accountability for a system of total insulation. This trade-off created an impenetrable shield that today protects prosecutors engaging in even the most deliberate acts of misconduct from public scrutiny and accountability. The idea that a state monopoly on justice eventually gave rise to absolute prosecutorial immunity is an overstated premise, as it disregards Congress’s clear intent that all state officials be liable for constitutional violations.
Furthermore, consolidation of the state monopoly over criminal law paved the way for the rise of plea-driven mass adjudication, fundamentally transforming the American courtroom. At the time of the Founding, the citizen jury trial was understood as an absolute jurisdictional bar—a structural requirement of the law—rather than an individual, alienable right that a defendant could simply waive. However, once private dispute resolution was eliminated and the state began to assert total control over the criminal docket, the jury trial was recast as a mere bargaining chip. In the modern era, when prosecutors have become the most powerful and least constrained actors in the criminal justice system, the ability to “waive” this right has become pernicious—affording prosecutors unbounded authority to dictate the outcome of cases through charging decisions alone.
This shift has allowed the state to manage its resources by disposing of the vast majority of cases behind closed doors—often pressuring defendants into guilty pleas to avoid the staggering risks of a jury trial. In this environment, justice ceased to be a public accounting of the truth and instead became a bureaucratic transaction overseen by a distant, immunized public official. By removing the jury from the verdict, the system prioritized the efficiency of the state over the perception of the affected community.
Perhaps the most striking finding of Professor Kaufman’s research is that this state monopoly on criminal prosecutions largely remains a myth. Today, in 31 states, governments still outsource criminal dockets to private firms, and in several states, private citizens can still technically initiate prosecutions. She argues that if the state’s monopoly on criminal power is more tenuous than we thought, perhaps the justifications for absolute prosecutorial immunity and plea-driven mass adjudicationfurt should be called into question. By looking at the odd history of private prosecution, we realize that our current system isn’t the only way to do justice—it’s simply a century-old project that has further shifted power away from the people and into the hands of a distant and wholly unaccountable bureaucracy.