Volunteer Prosecutors

• Author: Russell M. Gold
• Position: Associate Professor, University of Alabama School of Law
• Pages: 1483-1540

ARTICLES

VOLUNTEER PROSECUTORS

Russell M. Gold*

ABSTRACT

As support has grown to reduce the footprint of criminal law by defunding the

police, volunteer prosecution—a practice that has garnered little attention—con-

tinues to expand criminal law’s footprint. Volunteer prosecutors come in many

different forms, but their core similarity is that they all prosecute crime without

getting paid. Some are entry-level lawyers seeking to gain a foothold in the legal

profession, while others are retirees seeking to contribute to their communities.

Others work full-time paid jobs in civil practice but volunteer to prosecute some

criminal cases too. Many volunteers bring only misdemeanors or petty offenses—

prosecutions that disproportionately burden people of color. The racial disparity

of those prosecutions prompted a large Minnesota law firm to cancel its volunteer

prosecutor program after police killed George Floyd.

This Article provides the first scholarly treatment of volunteer prosecutors. It

aims to understand the nature and motivations of this practice by conducting a

content analysis of news stories and interviewing law school career services

employees. It then examines those findings through the theoretical lens of the

sociology of volunteer work. It relies on these sources to build a taxonomy of the

various forms of volunteer prosecution and catalog some places where it occurs.

Volunteer prosecution may offer substantial benefits, particularly to recent law

school graduates trying to gain paid work as prosecutors in an office that does

not have an opening. But volunteer prosecution raises systemic normative con-

cerns. This Article focuses on one particularly salient concern: volunteer prose-

cution allows the government to cast a wider net in criminal law than the one

that the legislature afforded. That net disproportionately ensnares people of

color. Stepping back a bit, the most meaningful constraint on prosecutors’

* Associate Professor, University of Alabama School of Law. I would like to thank Carol Anderson, Alison

Ashe-Card, Tiffany Atkins, Alvita Barrow, Meghan Boone, Carissa Byrne Hessick, Jason Cade, Jonathan Cardi,

Deepa Das Acevedo, Richard Delgado, Marie-Ame

´lie George, Sue Grebeldinger, Mark Hall, Quentin Huff, John

Korzen, Kay Levine, Mary Susan Lucas, Rebecca Morrow, Francie Scott, Jenia Turner, Anthony Waller, Megan

Walsh, Ron Wright, Vanessa Zboreak; the participants in the Junior Faculty Forum, CrimFest, the Southeastern

Association of Law Schools panel on The Private Role in Criminal Justice; and the faculty workshops at the

University of Alabama School of Law and the University of Georgia School of Law for helpful comments and

conversations. I would also like to thank Amy Houchin, Julie Jackson, Jaclyn Malmed, Sarah Orwig, and Angel

Sims for research assistance. Lastly, I owe special thanks to Jim Twiddy for an enormous amount of excellent

research. Given the nature of this project, it seems prudent to explain that views presented here are my own and

not necessarily those of my current or former institutions. © 2022, Russell M. Gold.

1483

authority is their limited budgets, but volunteer prosecution allows prosecutors’

offices to evade budget constraints and bring low-level misdemeanor or petty

offense cases even when elected officials have not appropriated sufficient funds

to bring those cases. Low-level prosecutions disproportionately target poor peo-

ple of color. Compounding the net-widening problem, volunteer prosecution may

skew toward individuals with intergenerational wealth—a group that will be less

able to identify with and therefore likely will treat more harshly the largely poor

defendants who disproportionately populate our criminal legal systems.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1484

I. VOLUNTEER PROSECUTORS IN CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . 1491

A. Non-Traditional Prosecutor Pay Models . . . . . . . . . . . . . . . . 1493

1. Contract Prosecutors. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1493

2. Part-Time Prosecutors. . . . . . . . . . . . . . . . . . . . . . . . . . . 1494

B. Typology of Volunteer Prosecutors . . . . . . . . . . . . . . . . . . . . 1494

1. Entry-Level Full-Time Volunteer Prosecutors . . . . . . . . . 1497

2. Experienced Full-Time Volunteer Prosecutors . . . . . . . . . 1499

3. Part-Time Volunteer Prosecutors . . . . . . . . . . . . . . . . . . . 1501

II. VOLUNTEER PROSECUTORS’ MOTIVATIONS . . . . . . . . . . . . . . . . . . . . . . 1501

A. Sociology Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1501

B. Instrumental Motivations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1505

C. Non-Instrumental Motivations . . . . . . . . . . . . . . . . . . . . . . . . 1510

1. Altruism and Promoting Public Safety . . . . . . . . . . . . . . . 1511

2. Psychological Authoritarianism and Sadism . . . . . . . . . . . 1513

III. NET-WIDENING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1517

A. Why Hire Volunteer Prosecutors? . . . . . . . . . . . . . . . . . . . . . 1518

B. Volunteer Prosecution as Net-Widening . . . . . . . . . . . . . . . . . 1519

C. Volunteer Prosecution as Free Lunch. . . . . . . . . . . . . . . . . . . 1523

IV. WEALTH SKEWING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1528

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1533

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1535

INTRODUCTION

Even amidst a pandemic, protests to reform criminal law proceeded apace across

America.

1

Many reformers have called to reduce police funding (or defund the

police)—to shrink the footprint of the criminal legal system to combat many ills,

1. Perhaps the source that best captures this moment is Lil Baby, Lil Baby – The Bigger Picture, YOUTUBE

(June 12, 2020), https://www.youtube.com/watch?v=_VDGysJGNoI.

1484 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:1483

central of which is institutional racism.

2

But these calls rarely extend to arguments

for defunding prosecutors

3

—perhaps the most important players in the criminal

legal process.

4

To the contrary, volunteer prosecution—a phenomenon that has

gone unnoticed by legal scholars—silently increases prosecutors’ resources. In so

doing, volunteer prosecution allows prosecutors’ offices to evade the most mean-

ingful restraint on their power—their limited budgets. Volunteer prosecutors often

bring misdemeanor or petty offense cases that the government could otherwise not

afford to bring. Because low-level offenses disproportionately ensnare poor people

of color,

5

volunteer prosecution exacerbates the racial disparities already endemic

to criminal law. Without free labor, prosecutors’ offices might decline these low-

level cases as unworthy of their limited resources.

Volunteer prosecution takes many forms. Justin Lee graduated from Georgetown

University Law Center in 2008 and wanted to become a prosecutor.

6

Three years af-

ter graduation he accepted a position as an unpaid Special Assistant United States

Attorney (“SAUSA”) in the Eastern District of California.

7

Lee worked as a volun-

teer federal prosecutor before obtaining a paid position in the office. Unlike Lee,

most of the approximately twenty unpaid SAUSAs who worked in that office from

2010 to 2016 did not obtain paid employment there.

8

And the Eastern District of

California is hardly alone in this practice.

9

Nor is this phenomenon limited to fed-

eral prosecutors.

10

Some cities have large volunteer prosecutor programs. Until

Floyd’s killing, for instance, a large Minneapolis-based law firm provided pro bono

attorneys to the local prosecutor’s office—prosecuting hundreds of misdemeanor

2. See, e.g., Amna A. Akbar, The Left Is Remaking the World, N.Y. TIMES (July 11, 2020), https://www.

nytimes.com/2020/07/11/opinion/sunday/defund-police-cancel-rent.html; The Time Has Come to Defund the

Police, M4BL, https://perma.cc/4R89-QKAR/ (last visited Feb. 6, 2022).

3. But see Rachel E. Barkow, Can Prosecutors End Mass Incarceration?, 119 MICH. L. REV. 1365, 1388–89

(2021) (book review) (arguing that “keeping [prosecutor] offices in check or downsizing them should be a key

goal” for progressive prosecution); Rory Fleming, Don’t Forget Prosecutors When It Comes to Defunding,

FILTER (June 11, 2020), https://filtermag.org/defund-prosecutors/ (linking defunding prosecutors to defunding

police).

4. Hon. Stephanos Bibas, Preface: Prosecutors’ Changing Roles at the Hub of Criminal Justice, in THE

OXFORD HANDBOOK OF PROSECUTORS AND PROSECUTION ix, x (Ronald F. Wright, Kay L. Levine & Russell M.

Gold eds., 2021) (describing “[t]he prosecutor as the central actor in criminal justice” and explaining that

American prosecutions “largely revolve around a central actor with tremendous power and discretion: the

prosecutor”); see also generally Gerard E. Lynch, Our Administrative System of Criminal Justice, 83 FORDHAM

L. REV. 1673 (1998) (embracing prosecutorial power). But see Jeffrey Bellin, The Power of Prosecutors, 94 N.Y.

U. L. REV. 171, 174, 176 (2019) (criticizing scholars’ overstating prosecutor power and arguing instead that

prosecutors’ influence comes from their interest alignment with other actors).

5. See Sandra G. Mayson & Megan T. Stevenson, Misdemeanors by the Numbers, 61 B.C. L. REV. 971, 1017

(2020) (finding that misdemeanor charges disproportionately target Black people with case-filing per-capita rates

four times larger for several offenses across several jurisdictions compared to white people).

6. Wanted: Federal Prosecutors Willing to Work for Free, DENVER POST (July 2, 2016), https://www.

denverpost.com/2016/07/02/wanted-federal-prosecutors-willing-to-work-for-free [hereinafter Wanted].

7. Id.

8. Id.

9. See infra App.

10. See id.

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