In this question it was shown that it is not possible to bypass the States Attorney before the grand jury. But what relief exists in cases where Prosecutorial Discretion might be used to protect people who are powerful, influential, and/or friends of the Court?
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In the U.S. there is no duty to prosecute even a known serious crime with all the evidence tied up in a bow. In many civil law countries, a prosecutor has a duty to prosecute all crimes possible. It hasn't been a huge problem practically in the U.S. because prosecutors tend to be very zealous, but it is a potential one (and this discretion not to apply the criminal law is one of the better arguments for the Second Amendment).– ohwillekeCommented Oct 26, 2016 at 5:20
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Are you advocating vigilantism?– George WhiteCommented Jun 23, 2021 at 15:41
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4 Answers
I have encountered this problem in Pennsylvania. The PA Code requires a District Attorney to approve all private criminal complaints. If the DA declines to prosecute, then an affiant can petition the Court of Common Pleas to review the decision. However the affiant bears the burden of convincing the court that the DA abused his descretion in declining to prosecute, which is a pretty high hurdle.
In the United States the only other legal appeal I am aware of is through federal courts under broad federal laws like 18 USC 242 or 42 USC 1983.
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3Linda R.S. v. Richard D. says that you don't have standing in federal court to challenge the prosecution or lack of prosecution of someone else; Leeke v. Timmerman particularly suggests that you can't file a 1983 claim for failing to prosecute someone else. Going to federal court would have to be filing federal suit directly against the person who wasn't prosecuted based on what they did (e.g. a 1983 claim against a cop); you can't sue the prosecutor.– cpastCommented May 27, 2015 at 0:50
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@cpast: Right, and my understanding is that (at least in PA) if you win the petition against the DA's decision the state will still not prosecute; you merely win the right to prosecute pro se.– feetwet ♦Commented May 27, 2015 at 1:44
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Just learned: Ohio is one the few states that allow residents to directly ask judges to press charges against specific individuals without an arrest taking place.– feetwet ♦Commented Jun 10, 2015 at 1:35
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1@cpast: can't find the law, but here's a reference: dailykos.com/story/2015/06/09/1391840/…. Further, from nyti.ms/1Ml52xh, Ohio law allows anyone with “knowledge of the facts” to file a court affidavit and ask a judge to issue an arrest warrant. If approved, the arrest would be followed by a public hearing, and community members said that was preferable to allowing prosecutors to make the decision in secret.– feetwet ♦Commented Jun 10, 2015 at 1:46
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1The law appears to be 2935.09 and 2935.10 of the Ohio Revised Codes; it doesn't mention prosecution, just issuing an arrest warrant. It looks like the prosecutor's office doesn't have to prosecute those cases.– cpastCommented Jun 10, 2015 at 2:24
As @feetwet points out, there are a few jurisdictions (New Hampshire and Pennsylvania are the only two I'm aware of) where a private citizen may initiate a criminal prosecution. However, these are limited and rarely used procedures, and are not available in most jurisdictions.
If someone has committed a crime, and in so doing has caused you a legally cognizable injury, you may also file a civil lawsuit. Many criminal acts also create tort liability in favor of the victims of the crime; for example, wrongful death suits are often filed in homicide cases.
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Add "England and Wales" to that list. There are a few offences which need permission of the Attorney General to prosecute (eg breach of animal testing laws). Commented Aug 8, 2016 at 15:08
In Virginia, it is possible to initiate a criminal prosecution for a misdemeanor by obtaining an arrest warrant from a Magistrate.
Code of Virginia § 19.2-71 (emphasis mine)
§ 19.2-71. Who may issue process of arrest. A. Process for the arrest of a person charged with a criminal offense may be issued by the judge, or clerk of any circuit court, any general district court, any juvenile and domestic relations district court, or any magistrate as provided for in Chapter 3 (§ 19.2-26 et seq.) of this title. However, no magistrate may issue an arrest warrant for a felony offense upon the basis of a complaint by a person other than a law-enforcement officer or an animal control officer without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency having jurisdiction over the alleged offense.
As you can see by the above statute, a felony warrant can only be issued on the request of a "law-enforcement officer or an animal control officer" unless prior authorization "by the attorney for the Commonwealth or by a law-enforcement agency having jurisdiction over the alleged offense" has been obtained.
Code of Virginia § 19.2-37 sets out the requirements for being appointed as a Magistrate, and none of these include being an attorney or licensed to practice law.
This procedure for obtaining action on a Misdemeanor is commonly known as "swearing out" a warrant. The Magistrate is not required to issue the warrant, but they may do so, without needing to call in a law enforcement officer or District Attorney.
answered Jan 11, 2018 at 20:28
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That gets someone arrested. Does it get them prosecuted? That was the question. Commented Jun 23, 2021 at 15:44
Outside of a handful of states that allow private criminal prosecution, the primary criminal remedy is to seek an appointment of an independent prosecutor when there is a conflict of interest (e.g. a DA employee is involved) which some states allow.
But, usually, as a practical matter, the only remedy is to private a civil lawsuit for money damages and/or injunctive relief against the wrongdoer. This cannot result in a criminal penalty such as imprisonment or establishing a criminal record. Usually, the person bringing the lawsuit must pay their own attorney fees although sometimes they can get an award of attorney fees as part of their damages if they prevail.
answered Jun 23, 2021 at 22:46
