Private Prosecutions

A Remedy for White Collar Crime?

Another great thing about living in New Zealand is the ease of bringing a private prosecution against wealthy and powerful sociopaths that the police decline to prosecute.1 A particular odious scumbag named John Banks recently resigned from Parliament after being found guilty of electoral fraud. As Commissioner of Police in the 1990s, Banks became extremely cozy with the New Zealand police when he helped cover up a series of gang rapes, by police officers, of women in their custody.

Thus in 2012, it was no surprise when the police chose not to prosecute when Banks deliberately lied about a campaign donation from multimillionaire Kim Dotcom. Dotcom, by the way, is still fighting extradition to the US on Internet piracy charges.

Enter retired accountant Graham McCready , who stepped in to file a private prosecution against Banks. Once the case was committed to trial, he prevailed on the Crown Law Office2 to take it over.

A Traditional Safeguard Against Government Tyranny

Private criminal prosecutions are quite easy to initiate in New Zealand; in fact, there’s even a New Zealand company that will do it for you – provided you cover the court costs and legal fees. With all the banksters, torturers, environmental crimes and corporate scumbags that Obama has declined to prosecute, it strikes me that the US has even more need of private prosecutions than New Zealand.

Private prosecutions are still legal in the US in at least 30 states.3 The tradition of private prosecutions, in both the US and New Zealand, grew out of English common law and a fear of government tyranny. When North America was first colonized in the 17th century, nearly all criminal prosecutions were carried out by private attorneys hired by crime victims or their survivors. The practice survived throughout most of the 19th century, even after most states began to appoint public prosecutors (district attorneys). Prior to the 20th century, public funding was so inadequate that most public prosecutors were young and inexperienced and didn’t stand a chance against well paid defense attorneys.

The Shift Towards Public Prosecution

Early in the 20th century, high courts in three states (Massachusetts, Michigan and Wisconsin) struck down private prosecutions because they were found to be contrary to the Constitutional presumption of innocence. These rulings argued that the prosecutor had a duty to be impartial and hand over exculpatory evidence to the defense team (this still doesn’t happen in many cases but is grounds for appeal). Missouri banned private prosecutions in 1976, Georgia in 1984, New York City in 1991 and North Carolina in 1972.

In most cases, private prosecutions are illegal in federal court, except in cases of criminal contempt. In 2010, the Supreme Court declined to review a contempt conviction stemming from a private prosecution in the District of Columbia. Then Solicitor General Elena Kagan (now a Supreme Court justice) filed an amicus brief in support of the private prosecution.

In addition to criminal contempt cases, Congress or a federal judge can appoint a private or special prosecutor if the Department of Justice refuses to prosecute.

Reviving Prosecutions to Address White Collar Crime

There seems to be growing support in the US legal community (see Private Vengeance and the Public Good and Let’s Revive Private Prosecutions) for bringing back private prosecutions, especially in cases where the public prosecutor declines to prosecute powerful corporate interests or fellow officials. With the 2008 economic downturn, state and local budget tightening is forcing many jurisdictions to again rely on underpaid, inexperienced prosecutors. They, in turn, are understandably reluctant to take on the rich and powerful.

In addition to mother England, both Canada and South Africa allow for federal and provincial prosecution of criminal offenses. Australia permits private prosecution of contempt cases in federal, family and superior court.

  1. The New Zealand police, which are employed by central government, are responsible for prosecuting most lawbreakers []
  2. The Crown Law Office provides oversight to police prosecutors and Crown solicitors (private practice lawyers hired by Crown Law for Crown prosecution work) and advises Parliament on criminal justice matters []
  3. Alabama, Alaska, Florida, Iowa, Kansas, Kentucky, Maine, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, North Dakota, New York (outside New York City), Oklahoma, Oregon, Texas, Utah and Vermont (I couldn’t find a complete list but confirmed that these states allow it). []

Dr. Bramhall is a retired American psychiatrist and political refugee in New Zealand. She has published a free, downloadable non-fiction ebook 21st Century Revolution. Her first book The Most Revolutionary Act: Memoir of an American Refugee describes the circumstances that led her to leave the US in 2002. Email her at: stuartbramhall@yahoo.co.nz. Read other articles by Stuart Jeanne, or visit Stuart Jeanne's website.