Private criminal adjudications and resolutions are already occurring, although they are not always recognized as such. They are a natural, inevitable outgrowth of the enormous private law enforcement system, and like their law enforcement counterpart, their prevalence and significance are likely to grow dramatically in the coming decades. The reasons for the rise of the private criminal justice system-both in the context of law enforcement and in the adjudicative/resolution stages can be traced directly to the perceived (and actual) failures of the public criminal justice system. Private individuals and companies are seeking criminal justice services that better meet their needs-perhaps a neighborhood or a retail store wants more extensive law enforcement; or perhaps a family member or community wants a result that is less punitive and more rehabilitative than the public system will provide; or perhaps the victim seeks more control over the process itself. Most significantly (since the accused himself must agree to opt out of the public criminal justice system), the draconian punishments of the public criminal justice system leads defendants (knowingly or otherwise) to forfeit their rights under the public system and enter into a private adjudication process in which they have more control over the outcome and can possibly repair the damage they have done.
The very existence of an alternative private criminal justice system is admittedly a controversial proposition, even if it is meant only to supplement and not replace the traditional criminal justice system. For better or for worse, it appears a private criminal justice system is developing, as the extensive network of private police continues to apprehend individuals, while those who employ the private police are less and less interested in simply handing the alleged perpetrators over to the public criminal justice system. But just because a private criminal justice system is inevitable does not mean that we cannot try to affect the direction in which it develops. Although some of the criticisms of a private criminal justice system may be exaggerated, we have seen that there are legitimate concerns about the emergence of a private criminal justice industry.
In response to these concerns, there are a few reforms which would serve to make the institutions of this new criminal justice system fairer. For example, there does seem to be a need to protect defendant's rights in a private criminal justice system-or, more accurately, a need to ensure that defendants are knowingly and voluntarily relinquishing the rights they would receive under the public criminal justice system. Second, the proceedings of a private criminal justice system need to be privileged, so that any statements made by the defendant or the victim cannot be used against them if the private adjudication is unsuccessful. Third, it would make sense to certify or license the private mediators-the way that most states now license private security guards-for example, institute minimum levels of training and set up guidelines to ensure that they avoid conflicts of interest in any given case. And finally, since the private tort system will be the primary method of regulating the conduct of private security guards, it would be useful to conduct some further examination of the liability of private police, and perhaps liberalize the rules so that it is easier to hold them accountable for abuses .
These suggestions are meant to guide the inevitable development of a private criminal justice system-because given the shortcomings of the public criminal justice system and the strong appeal of a private alternative, the evolution of a private criminal justice system is indeed all but inevitable. The private police currently apprehend hundreds of thousands of criminals each year, and restorative justice theory provides an ideal blueprint for adjudicating and resolving their cases. Mediation has already revolutionized the way that civil law disputes are resolved, and private restorative justice programs would offer the same efficiency and flexibility to the parties of a criminal dispute. As long as the state is able to regulate the results (and intervene if they differ too radically from the public interest), a private criminal justice system could provide a more satisfactory process and better results for victims and defendants alike .