Why are corporations acting as prosecutors in our criminal courts?

A few weeks ago I had to sit through a morning of bench trials in one of our local magistrate courts, waiting for the judge to get to my hearing on a motion to quash a warrant.  Watching pro-se defendants representing themselves, each a train wreck one after the other, was a very frustrating experience.  You want to jump up and volunteer to help these guys, but you just can’t.  I’m empathetic and I do care about these people that I have never met, but there are too many people who need help and who can’t afford to pay, there are not enough hours in the day, and the bills have to be paid.

One case in particular caught my attention.  A defendant was charged with a series of fraudulent checks that were written to K-Mart in 2004.  The defendant appeared for his court date, did not request a jury trial, and stood before the judge with no attorney.  At the other table stood a K-Mart employee, not an attorney and also unrepresented, who argued to the judge that the money needed to be paid one way or the other.

The judge listened to the K-Mart employee, asked some questions of the defendant who admitted that he did write the checks and could not afford to pay them, found the defendant guilty, and then sentenced him to consecutive 30 day sentences (served one after the other) on each fraudulent check.  The sentence would then be suspended if the defendant paid the money owed to K-Mart and all court costs.

So – a guy writes bad checks and gets some merchandise technically without paying for it.  8 years later he is arrested for the checks, locked up, released and told to return for his court date.  Then he is given what seems like an excessive jail sentence, unless he pays the money.  The defendant now has a strong motivation to come up with the money to pay back K-Mart, and if he doesn’t he is severely punished for his crime of writing a bad check.  Of course, he is in jail and can’t work to make the money to pay to K-Mart.

What’s wrong with this picture?  No magistrate should be allowing corporate employees to represent their companies in court – first of all, it is the unauthorized practice of law, it is illegal, and they have no standing to appear on behalf of a corporation or anyone unless they are a licensed attorney or unless they are a police officer prosecuting a criminal case in magistrate or municipal court.

In a civil case, any person can represent themselves – but even in civil cases corporations cannot represent themselves, and non-attorney corporate employees cannot represent their corporation.  In a criminal case a defendant may appear pro-se, but the other party is the State, not an individual or a corporation.  This is why alleged victims in criminal cases cannot appear to prosecute their cases on their own behalf.  The “plaintiff” in a criminal case is the State, and there must be an attorney who represents the State present to prosecute the case, with the exception of police officers prosecuting their own cases in the magistrate or municipal courts.

In In re Richland County Magistrate Court, decided in September 2010, the S.C. Supreme Court addressed this exact scenario and made it clear that corporate employees cannot prosecute a defendant on behalf of their corporation in the magistrate court.  The Court held that it is “unauthorized practice of law for a non-lawyer to represent a business as prosecutor of a criminal misdemeanor charge, other than a traffic offense, in magistrate’s court.”  Here’s what the Court had to say about the practice of non-lawyer representatives of corporations appearing in magistrate courts to prosecute defendants:

If a private party is permitted to prosecute a criminal action, we can no longer be assured that the powers of the State are employed only for the interest of the community at large. In fact, we can be absolutely certain that the interests of the private party will influence the prosecution, whether the self-interest lies in encouraging payment of a corporation’s debt, influencing settlement in a civil suit, or merely seeking vengeance. Petitioner candidly acknowledges in its brief that the non-lawyers are authorized by the companies “to represent their interests” in the criminal proceedings.

We find that allowing prosecution decisions to be made by, or even influenced by, private interests would do irreparable harm to our criminal justice system. At the very least, there is “too much opportunity for abuse and too little motivation for detachment.”[2] See State v. Martineau, 808 A.2d 51, 55 (N.H. 2002), Nadeau, J., concurring. Though we certainly understand the practical concerns raised by the dissent, we are confronted with a higher question here. The convenience and fiscal economy of private prosecution may be facially appealing, but we must not embrace them at the expense of fundamental fairness and justice.

Corporations don’t care about justice.  They don’t care about fairness.  Corporations are non-living, non-breathing constructs that for the most part have a single purpose in existing – to make money.  A prosecutor’s duty is that of a a”minister of justice -” their goal is not to get a conviction, nor is their goal to collect money for an alleged victim.  Their goal is to seek justice – whether that is a conviction obtained by honest means, a dismissal of charges, or alternative resolution, the guiding principle is to seek justice and represent the interests of the State.  Not so with a corporation or their representative – the corporation’s only goal in a criminal proceeding is debt collection.

Corporations rule our country, and, arguably, the world.  Corporations with their money choose our politicians.  They may choose several politicians and then present them to us so that we have the illusion of democracy and free choice.  In many states, corporations with their money choose our judges, funding their election campaigns.  The United States Supreme Court has given dead corporations the rights of citizens in our country.  According to an ABA Journal article, more than 300 district attorney offices across the country now have agreements with debt collectors allowing the debt collectors to use the prosecutors’ letterhead to send letters threatening bad check writers with imprisonment.  If there is one place where we need to protect real people from the crushing power of corporations, it is in our courts and especially our criminal courts.

Are we now going to give corporations the power to prosecute citizens and incarcerate them, force them to pay fines, and cause them to have criminal records?  Isn’t this a power that should be reserved only to the State?  It is, and our state supreme court has said that corporations cannot prosecute citizens.  So why are magistrates still allowing it to happen?

4 Responses to “Why are corporations acting as prosecutors in our criminal courts?

  • Logic says it is not against the law to write a bad check, could have been an accounting error. However, it is against the law to refuse to pay up. This case could easily have been worse.
    KMart or the bank could have made the accounting error when in fact the defendant did pay, then you have a prosecutor or police officer who shows up with one of those win-the-case-at-all-costs-mentality, and there is your travesty of justice. And once you are wrongfully convicted of something, meaning you are innocent, it is difficult to undo.

  • Ann Williams
    7 years ago

    “Are we now going to give corporations the power to prosecute citizens and incarcerate them, force them to pay fines, and cause them to have criminal records? Isn’t this a power that should be reserved only to the State? It is, and our state supreme court has said that corporations cannot prosecute citizens. So why are magistrates still allowing it to happen? “…..They way I see it, they’ve been doing it for at least 55 years, but not so you would know it…Penal restitution for victimless injury brought by false DUI charges and the DMV for failure to blow. The DMV is a private company and now has it’s very own “court” to rack folks up. If I ever find a way out of this, I’m moving to Canada. Love your blog.

  • Really like this article, but the problem is that the magistrate and municipal courts are corporations too. So it’s one corporation working for another corporation against a private person.
    Please provide the reference (law) that it is illegal to not have an attorney or sworn police officer as prosecutor. (Thanks)

    “A prosecutor’s duty is that of a ”minister of justice -” their goal is not to get a conviction, nor is their goal to collect money for an alleged victim.”
    Maybe in a perfect world, but in my experience, the prosecutor is definitely going after a conviction, especially in a jury case like mine where the prosecutor denied having exculpatory evidence; the video from the police cruiser.

    • The prosecutor’s duty as a minister of justice is not just a dream, it’s law as stated by the U.S. Supreme Court, but I agree that the reality is often different.

      For case law on who can and cannot prosecute cases, follow the link in the words “alleged victims in criminal cases cannot appear to prosecute their cases on their own behalf” in the post above, and follow the links in that blog post and this one for the cases cited – within those cases the rest of the cases that deal with it are cited. Only an attorney who represents the state (not a private attorney representing a corporation or individual) or the arresting officer or their supervisor can prosecute a criminal case.

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