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Hastings Constitutional Law Quarterly

Abstract

Government prosecutors have begun accepting, and in some cases soliciting, voluntary contributions from the private sector in order to finance certain types of criminal prosecutions. Such private financing introduces a new tension between society's interest in punishing the guilty and society's interest in equal treatment by government. Private financing of criminal prosecution also raises interesting questions as to whether institutions, as opposed to individuals, can be biased by money.

This Article concludes that private financing in any of its likely forms threatens important equality interests. Part I argues that conflict-of-interest rules provide the only protection for important equality interests implicated by prosecutorial decisions. Part II creates a framework for analyzing institutional bias created by private money and evaluates the conflicts of interest raised by various private financing arrangements. Part III evaluates the economic efficiency and victims' rights arguments in favor of private financing and concludes that private financing serves those interests selectively, at best, and inevitably at the expense of important equality interests.

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