Prosecutions for profit:
The privatization of justice

The California District Attorney's Association has come under considerable criticism for the actions of what some people are calling the "vigilantes" in the Circuit Prosecutors Project.

The project began in 1995 as an environmental law prosecution "flying squad." It was intended to aid strapped DAs in rural counties investigate and prosecute environmental law violators who for lack of legal staff. funding and expertise, might otherwise gone unpunished.

The CPP is currently headed by former Imperial County Deputy DA Gale Filter.

It involves the California Environmental Protection Agency, Peace Officer Standard Training and other government agencies. Though quasi-government in function, It is insulated from government budgetary oversight having lobbied for itself the legal authority to independently fund its operations through fines fees and penalties. It is, in other words, a privatized arm of law enforcement that has successfully expanded the civil concept of "little Attorney General" prosecutions to the realm of criminal prosecutions.

So far, it has at least twice used this broadened power to aggravate civil regulatory violations to serious felony charges, including involuntary manslaughter.

Its managers and fans tend to downplay this aspect of the project. Here is how some now describe it.

Its funding is variously reported. I some places it reports producing more than $17 million in fines (shared with the local prosecutors who "deputize" the CCPs for specific prosecutions.

Bylaws of the non-profit group limits to spending spending up to $2 million a year. And it has reported opening since 1998 as many as 840 cases -- with not quite 300 being filed in latter part of 2002.

Not all of the prosecutions have been successful. Some of the more high profile cases have in fact been thrown out.

But the failures have not deterred them.

Then day after having a judge set aside the Sierra county mining case, the CCP people launched a similar prosecution against two dairymen in Modesto.

The whole project from the get-go has been premised on the argument that it would help authorities in small and rural counties. But reading its promotional materials closely shows they have begun to suggest that their ideas could be of use to DAs in large urban counties.

Does this signal a plan to expand? Perhaps if not to larger counties, maybe to more and different areas of the law.

The California Integrated Waste Board, for instance, recently gave the CDAA CCP unit a $311,000 grant to pursue waste tire prosecutions.

At the end of the day the big question is: Why is all this being done through CDAA and not through the Attorney General's Office?

The AG was given wide powers under Proposition 65 to go after polluters. And the California Occupational Safety and Health Administration has long had a well-entrenched enforcement apparatus -- and it certainly must have been effective, considering the howls industry has raised over it.

If the traditional means of enforcement the codes are being quietly abandoned and privatized, then why?

Are there political considerations here? That is to ask, Has the state Attorney General handed this function off to others so as to distance himself from antagonizing potential corporate campaign contributors?

Contemporary parallels to this phenomenon can be seen in other areas of state law. Tony Miller, a former honcho in the office of the Secretary of State's Office and a one-time candidate for that office, has made a thriving cottage industry of bringing "private attorney general" lawsuits against Fair Political Practices Act violators. -- another toughy area where the AG has prosecutorial powers, but also obvious daunting political considerations for not exercising them.

But why the manslaughter charges? Why criminalize the matter?

One guess would be that the prosecutors are just using the tools and ploys they are most familiar and comfortable with: -- over-charging for the tactical purposes of extorting plea bargains. For, alas, wherever there is a DA there is a deputy engaged in mau-mauing the unsophisticated and intimidating the weak. Out of the best of intentions, of course. Of course!

Then, too, one must also ask: If the AG is not, can not or will not enforce good laws and some other free spirits have taken to doing it for him, what's the problem?

Well, the problem is that it such shadow law enforcement is vulnerable to abuse due too over-zealousness and profit-driven motives.

Which is exactly what defendants such as Michael Miller contend is happening.