Farhang Heydari
90 Geo. Wash. L. Rev. 696
Amid a national debate over the scope of the criminal system and calls to defund police, a growing number of jurisdictions are turning to private actors to mitigate the system’s harms. Communities across the country are purchasing body cameras, contracting for implicit bias trainings, and turning to community-based alternatives to police responses.
There is irony in these calls essentially to privatize aspects of public safety. Many proponents of these reforms sharply criticize privatization in related contexts, from prisons to policing. This contrast between demands to privatize in some instances, and to curtail privatization in others, underscores the twin theses of this Article. First, private influences on the criminal system are far more pervasive than the literature recognizes. By canvassing the roles of non-state actors, this Article demonstrates that private influence is inevitable. Second, private influences are neither intrinsically harmful nor beneficial. Although privatization raises serious governance concerns, public aspects of the system suffer many of the same problems, including distorted financial incentives, lack of transparency, and limited accountability. In fact, reliance on private rather than public actors sometimes mitigates these concerns.
In short, the oft-discussed line between public and private is a poor proxy for harm in the criminal system. Instead, policymakers should accept that the public and private spheres will always be intertwined and should regulate them in ways that avoid accountability gaps. The approach detailed in this Article offers important lessons for everything from relying on community-based anti-violence groups to law enforcement’s access to the private data market.
