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1. Article: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute, 103 Minn. L. Rev. 844
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DAVID SCHOEN
Article: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute
Reporter
103 Minn. L. Rev. 844 *
December, 2018
Length: 23570 words
Author: Darryl K. Brown*
+ O. M. Vicars Professor of Law and Barron F. Black Research Professor of Law, University of Virginia School of Law.
Copyright © 2018 by Darryl K. Brown.
Text
[*844]
INTRODUCTION
In light of concerns about mass incarceration and excessive search practices by police, 1 underenforcement of criminal law is
not the first problem that springs to mind for American criminal justice. But in fact, some of the prominent contemporary
complaints about U.S. criminal justice, as well as some longstanding ones, object to underenforcement of criminal law. Two of
the most notable categories are failures to prosecute in cases of unjustified police violence, especially against nonwhite victims,
and in cases of sexual assaults. Lower-profile examples abound as well, as do historical examples.
Given the nation's history, underenforcement problems are often related to race. Insufficient law enforcement attention to
crimes in minority neighborhoods, for example, has been criticized as depriving African American victims and communities of
their fair share of government protection from criminal harm. 2 In earlier eras, law enforcement inattention to, or wholesale
neglect [*845] of, white offenders' victimization of black victims - in lynchings, attacks on civil right activists, sexual assaults,
and other contexts - was often patent. 3 But the problem of unjustified underenforcement is not confined to these contexts, nor
to the United States. Failures to prosecute arise from a fundamental structural challenge faced by all criminal justice systems:
how to ensure unbiased, evenhanded enforcement practices - safeguards in favor of justified enforcement. This challenge gets
less attention than criminal procedure's central preoccupation of guarding against excessive or groundless criminal charges.
Concern about misuse of the state's prosecution authority rightly motivates much in criminal procedure, from search and
seizure rules 4 and judicial review of arrests 5 to evidence disclosure duties, 6 the right to counsel, 7 and standards of proof. 8
1
U.S. incarceration rates quintupled over the last forty years and are five to seven times higher than those in other advanced democracies.
See Floyd v. City of New York, 959 F. Supp. 2d 540, 572-602 (S.D.N.Y. 2013) (documenting and holding unconstitutional widespread stopand-frisk
practices by New York City police that disproportionately targeted non-white men); Michelle Alexander, The New Jim Crow: Mass
Incarceration in the Age of Colorblindness 6-9 (2010); World Prison Brief Data, Inst. for Crim. Pol'y Res. (2016),
http://www.prisonstudies.org/country/united-states-america (comparing national data on total prison population and incarceration rates and
reporting that the United States has the world's largest prison population at 2,217,947 inmates).
2
Randall Kennedy, Race, Crime, and the Law 29 (1997).
3
See, e.g., Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror 39, 48 (3d ed. 2017) (documenting
approximately 4000 lynchings in the years 1877-1950; about one percent resulted in a conviction for perpetrators).
4
See generally Wayne R. LaFave et al., Criminal Procedure 126-63, 512-49 (5th ed. 2009) (discussing search and seizure rules).
DAVID SCHOEN
103 Minn. L. Rev. 844, *845
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Structural responses to the state declining to use its enforcement authority are much fewer and less prominent. At least in
common law countries, enforcement decisions are the province of police and prosecutor discretion, and oversight of officials'
failures to enforce has been left almost wholly to the political process. Decisions to search, arrest, or charge face modest
judicial scrutiny on evidentiary grounds and - at the extreme margins - racial or [*846] ethnic bias. 9 Decisions not to arrest or
charge are virtually immune from judicial review or other nonpolitical oversight. 10 Like other common law jurisdictions, U.S.
justice systems have always rejected an approach long adopted in some civil law jurisdictions to prevent unjustified and
disparate nonenforcement - a rule of mandatory prosecution that restricts executive officials' discretion over arrest and charging
decisions. 11
A broader view, however, reveals that all criminal justice systems incorporate one or more strategies to address
underenforcement, which can be collectively described as redundant charging authority. All are to some degree familiar,
though they are not usually described in these terms or understood as serving this common purpose.
One approach is creation of two distinct enforcement agencies with overlapping or duplicative jurisdiction. This model is a
familiar safeguard against underenforcement of transnational crimes or crimes on the high seas; international criminal law
routinely grants nation-states coextensive, duplicative jurisdiction to enforce international or domestic criminal laws outside
their borders. International treaties on subjects such as public corruption, drug trafficking, and human trafficking 12 can be
understood as agreements to create enforcement redundancy among national criminal justice agencies to solve
underenforcement problems by particular states. 13 The same arrangement occurs domestically for enforcement of civil or
regulatory law when administrative agencies have overlapping, and thus redundant, [*847] jurisdiction over the same
regulated activities. 14 The most important version of this model in the United States, however, is criminal justice federalism.
Due to the steady growth of federal criminal law, jurisdiction, and institutional capacity over the last century, state and federal
5
Gerstein v. Pugh, 420 U.S. 103, 111-16 (1975) (holding that the Fourth Amendment requires a judicial determination of probable cause
prior to extended detention); County of Riverside v. McLaughlin, 500 U.S. 44, 52-58 (1991) (defining "prompt" under Gerstein's requirement
of a prompt judicial determination of probable cause).
6
Brady v. Maryland, 373 U.S. 83, 86 (1963) (holding prosecution's withholding of the confession of defendant's confederate violated
defendant's due process rights).
7
Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (extending Sixth Amendment right to assistance of counsel to indigent state criminal
defendants); Powell v. Alabama, 287 U.S. 45, 53 (1932) (holding defendants' rights to counsel of their choice throughout the prosecution
process had been violated).
8
In re Winship, 397 U.S. 358, 364 (1970) (holding that proof beyond a reasonable doubt is constitutionally required under the Due Process
Clause).
9
United States v. Armstrong, 517 U.S. 456, 456-71 (1996) (examining selective prosecution claim based on racial bias); see also Whren v.
United States, 517 U.S. 806, 813 (1996) (holding that, in assessing the legality of police decisions to stop suspects under the Fourth
Amendment, courts should ignore officers' subjective motivations).
10
See, e.g., Abby L. Dennis, Reining in the Minister of Justice: Prosecutorial Oversight and the Superseder Power, 57 Duke L.J. 131, 132-33
(2007) (describing prosecutors' "limitless, unmonitored and … unreviewable power").
11
See infra Part II.B.
12
See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, G.A. Res. 55/25, annex II (Nov.
15, 2000), https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html; United Nations Office on Drugs & Crime, World Drug
Report 2017, U.N. Sales No. E.17.XI.7 (2017), https://www.unodc.org/wdr2017/index.html; U.S. Dep't of State, Trafficking in Persons
Report 438 ( 2017), https://www.state.gov/documents/organization/271339.pdf.
13
See Neil Boister, An Introduction to Transnational Criminal Law 135-95 (2d ed. 2012),
http://opil.ouplaw.com/view/10.1093/law/9780199605385.001.0001/law-9780199605385-chapter-12.
14
See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 201-03 (2007).
DAVID SCHOEN
103 Minn. L. Rev. 844, *847
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law enforcement substantially overlap for many categories of crime. Much of this enforcement redundancy, as considered in
detail below, has been a deliberate federal response to diverse problems of underenforcement in state criminal justice. The
point for now, however, is the functional equivalence of duplicative federal-state jurisdiction, nation-state jurisdiction, and
agency jurisdiction. All represent a common strategy to reduce underenforcement by empowering redundant enforcement
authorities: independent entities with equivalent institutional capacity and expertise share jurisdiction. If one neglects to
enforce, the other may. Functionally, each backstops, or provides oversight of, failures to enforce by the other.
A second model for minimizing unjustified failures to prosecute relies on private actors to create redundancy with public
prosecutors' authority. Empowering private actors to file and litigate public law claims is familiar in many civil law contexts;
numerous federal statutes authorize private rights of action that enable private individuals or groups to supplement public
agencies' law enforcement efforts. 15 Through much of the nineteenth century, this kind of duplicative public-private
enforcement authority was a familiar feature in the criminal justice systems of many states, which permitted private parties -
victims - to prosecute alleged criminal wrongdoing.
Redundant charging authority takes other forms as well. In large hierarchical agencies such as the U.S. Department of Justice,
internal administrative review of front-line prosecutors' charging or declination decisions by higher-ups creates a version of
redundant enforcement authority; supervisors can make independent determinations and reverse front-line prosecutors. 16
[*848] This kind of redundancy through administrative review now exists in English, Irish, and many European criminal
justice systems. 17
More ambitiously from a U.S. perspective - because it is rare here - judicial power to review prosecutorial charging decisions is
another means to create some degree of redundant charging authority between the executive and judicial branches. Although
criminal charging is a core function of the executive branch, state and federal courts have modest authority to review and bar
executive officials' decisions to file criminal charges. It is only as a matter of policy that courts - with a few exceptions - are not
empowered to address underenforcement by reviewing the executive's noncharging decisions. (This power is somewhat broader
for courts in England and Wales as well as in the law of a few states.) 18 This model of redundancy separates charging
authority - for courts as for Department of Justice supervisors, the power to order prosecutors to prosecute - from enforcement
authority, which includes the institutional capacity to file and litigate charges. Courts (with rare exceptions) have no
administrative capacity to litigate a prosecution; but they could provide some redundancy in charging authority. 19
In sum, charging redundancy can occur between equivalent agencies in separate governments, between public and private
actors, or between agencies or branches of the same government. Criminal justice systems in Europe and the common law
world have adopted or strengthened one or more of these mechanisms in recent decades. In the United States, choices among
these strategies have changed over time and between jurisdictions. Nearly all states that once authorized private prosecution
have long since prohibited it. Federal prosecutors are organized in a centralized hierarchical agency that makes administrative
review possible, but few state prosecutors are similarly organized. For these reasons and others, the primary means of
enforcement redundancy to combat underenforcement is overlapping federal- [*849] state authority made possible by the
distinctive U.S. model of federalism.
15
Examples of federal statutes authorizing private rights of action include the Clayton Act, 15 U.S.C. § 15 (2006) (granting a private right of
action for antitrust violations); Federal Tort Claims Act, 28 U.S.C. § 2680(h) (1994); Title VI of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5(f) (1994); Americans with Disabilities Act, 42 U.S.C. § 12133 (1994). For an overview, see Pamela H. Bucy, Private Justice, 76 S.
Cal. L. Rev. 1, 12-54 (2002).
16
See 18 U.S.C. § 3771(f) (2012) (mandating review of federal prosecutor decisions within the Justice Department upon victim's request).
17
See infra Part II.A.1.
18
See infra Parts II.B.3-B.4.
19
Note that this conception of redundant authority intersects with, but is distinct from, constitutional separation of powers. In a standard
account (briefly put), separation of powers describes branches of government having distinct roles, authority, and competencies. In the main,
branches do not do the same things; they do different, rival, and complementary things. But if so empowered by the legislature, courts can
exercise some degree of charging authority, creating limited redundancy in charging authority between the executive and judicial branches.
DAVID SCHOEN
103 Minn. L. Rev. 844, *849
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This Article has several aims. One is to introduce the concept of enforcement redundancy and demonstrate its utility. Another is
to highlight problems of criminal law underenforcement and to situate contemporary complaints about failures to prosecute
police violence and sexual assaults as specific examples of broader enforcement deficiencies that stem from bias and favoritism
in police and prosecutorial discretion. The Article also defends the observation that enforcement redundancy strategies are
responses to versions of this problem. It then assesses the strengths and weaknesses of different such strategies, with primary
attention on the effectiveness of the U.S. approach of redundant federal-state authority. A focus on three different categories of
criminal law underenforcement - government corruption, police violence, and sexual assaults - clarifies differences in the
effectiveness of the U.S. approach. Federalism has proven an effective response to states' failures to address forms of public
corruption, and for those crimes, it is likely superior to its alternatives. Federal authority has had some success in compensating
for states' failures to prosecute police violence and other police wrongdoing, but its efficacy is harder to judge and arguments
for supplemental redundancy strategies are stronger. For sexual assaults, federal authority has failed to assert any meaningful
enforcement jurisdiction to compensate for weaknesses in state justice systems. Despite the sustained efforts and notable
successes of reform advocates in this area, no model of enforcement redundancy has made inroads.
The Article proceeds as follows. Part II briefly surveys evidence of and reasons for underenforcement. The need for safeguards
against unjustified nonenforcement has long been recognized in the United States and elsewhere; outside the United States, as
part of victims' rights reforms, it has been the object of institutional reforms. Part III elaborates the mechanisms available to
address risks of criminal law underenforcement. The predominant options are (1) some authority for private actors to initiate or
participate in criminal prosecutions; (2) judicial or administrative review of initial nonprosecution decisions by public
prosecutors; and (3) authority for a separate, independent public prosecutor's office to bring charges when another prosecutor
has declined to. Other countries - out of tradition, an absence of federalism, or as part of victims' rights reforms - rely on
versions of [*850] the first and second options. Part III also considers why U.S. victims' rights laws, which are otherwise
robust, lack either of these components adopted elsewhere, especially given that many state criminal justice systems relied on
private prosecution for much of the nineteenth century. The likely answers help explain why the United States relies almost
exclusively on the third option as a safeguard against underenforcement.
Finally, Part IV assesses how effectively federalism-based enforcement redundancy addresses underenforcement, particularly
the recurrent, contemporary controversies around police violence and sexual assault. Redundant enforcement through
overlapping federalism has had considerable success addressing some underenforcement problems, such as corruption by state
and local officials, certain kinds of civil rights violations, or crimes against disfavored minority groups. 20 It is doubtful that
private prosecution or judicial review could match its success. The federalism strategy has a more mixed record on the problem
of unjustified police violence. Federal officials have succeeded where state officials have failed in overseeing reform of local
police departments to reduce police lawbreaking, and they occasionally prosecute and convict individual officers. 21 But the
vast majority of incidents of police violence go unprosecuted, including most that lead to large civil settlements for victims. 22
20
See, e.g., David Grann, Killers of the Flower Moon: The Osage Murders and the Birth of the FBI 57 (2017) (describing "corrupt sheriffs
and police departments" that failed to enforce the law and were unable to solve serial murders of Native American victims); Margaret
Burnham, The Long Civil Rights Act and Criminal Justice, 95 B.U. L. Rev. 687, 687-88 (2015) (discussing federalism-based redundancy in
the context of the Civil Rights Acts); Gregory L. Padgett, Racially-Motivated Violence and Intimidation: Inadequate State Enforcement and
Federal Civil Rights Remedies, 75 J. Crim. L. & Criminology 103, 105 (1984) (advocating for federalism-based enforcement redundancy to
ensure punishment in crimes against racial minorities).
21
On federal reform of local police, see Rachel A. Harmon, Limited Leverage: Federal Remedies and Policing Reform, 32 St. Louis U. Pub.
L. Rev. 33, 53-56 (2012); Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 20-51 (2009)
[hereinafter Harmon, Policing Reform].
22
Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States 77-84, nn.149-72 (1998),
https://www.hrw.org/legacy/reports/reports98/police/index.htm (documenting "civil remedies");id. at 89-96, nn.182-200, 92-93 tbls.1-2
(documenting "low rate of federal prosecutions"); Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63
UCLA L. Rev. 1144, 1147-71 (2016) (documenting civil settlements for police wrongdoing in 100 localities); Ian Simpson, Prosecution of
U.S. Police for Killings Surges to Highest in Decade, Reuters (Oct. 26, 2015), https://www.reuters.com/article/us-usa-police -
idUSKCN0SK17L20151026 (noting twelve officers were charged for fatal shootings in the first nine months of 2015, compared to about five
per year between 2005 and 2014).
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It is [*851] unclear what portion of those incidents merit criminal prosecution. Key facts are often disputed, and while federal
and state jurisdiction are coextensive here, federal criminal law generally sets a higher bar for liability than state law, especially
due to its more onerous mens rea requirement. 23 That makes the former an imperfect backstop to the latter, because they are
only partially redundant. And as recent changes in federal policy suggest, 24 redundancy between governments is subject to
political shifts in those governments; federal oversight of state enforcement works only if federal officials are committed to the
oversight role. Moreover, keeping prosecution in the exclusive province of executive officials keeps prosecutorial discretion
more closely aligned with political majorities and thereby with popular sentiments about certain groups of defendants (such as
police officers) and victim groups (such as criminal suspects). In this context, redundancy in state law charging by courts or
private actors, rather than rival prosecutors, might make a real contribution. Finally, cases of sexual assault reveal a weakness
of federalism-based redundancy. State and federal criminal jurisdiction in the United States overlap more than elsewhere, but
they are not wholly coextensive. Federal prosecutors lack authority over most assaults that do not involve public officials or
federal [*852] property. Sexual assaults are one context in which the enforcement strategies favored in Europe and England -
regulated private prosecution or review of declination decisions - hold more promise.
I. UNDERENFORCEMENT AND REASONS NOT TO PROSECUTE
A. Sources of Unjustified Noncharging Decisions
Public prosecutors are the gatekeepers of criminal law enforcement, and justice systems employ a variety of safeguards against
prosecutors' misjudgment, bias, incompetence, or laziness. Most are directed at prosecutors' charging decisions rather than
decisions declining to charge (i.e., declination decisions), for familiar reasons - charging creates real burdens and risks for
defendants. 25 Many familiar procedural components are aimed at preventing improper criminal charges or the harm they can
cause. Requirements that charges are based on sufficient evidence are an obvious example, but double jeopardy laws and
restrictions on prosecutors' conflicts of interest serve the same purpose. The full range of pretrial and trial procedures designed
to assure accurate and unbiased adjudication are intended to sort out improper charges and attach punishments only to proper
ones. 26
Safeguards against nonenforcement, or unjustified decisions not to prosecute, are fewer, are less explicit, and (in common law
jurisdictions) are less often in the form of legal rules and mandates. One explanation for this is simply that the interests at stake
are not as high - no individual faces prosecution and possible punishment. Another is that many non-prosecution decisions
23
Police violence is often prosecuted under 18 U.S.C. § 242 (2012) (criminalizing the deprivation of rights under color of law). On
challenges to prosecuting police violence, including federal law's intent requirement, see Barbara E. Armacost, Organizational Culture and
Police Misconduct, 72 Geo. Wash. L. Rev. 453, 465-67 (2004); Mary M. Cheh, Are Lawsuits an Answer to Police Brutality?, in Police
Violence 247, 253, 258-66 (William A. Geller & Hans Toch eds., 1996); John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev.
789, 806-11 (2000); Paul J. Watford, Screws v. United States and the Birth of Federal Civil Rights Enforcement, 98 Marq. L. Rev. 465, 477-
86 (2014); Mark Joseph Stern, Why the Feds Can't Charge Darren Wilson: They Should, but the Supreme Court Gutted the Civil Rights Law
He Violated when He Killed Michael Brown, Slate (Mar. 4, 2015),
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/will_justice_department_charge_darren_wilson_
supreme_court_gutted_civil.html; William Yeomans, The Cognitive Dissonance of Federal Civil Rights Prosecutions and Race, ACS Blog
(Feb. 13, 2015), https://www.acslaw.org/acsblog/the-cognitive-dissonance-of-federal-civil-rights -prosecutions-and-race.
24
See, e.g., U.S. Attorney Gen., Memorandum: Supporting Federal, State, Local and Tribal Law Enforcement (2017); Sari Horwitz et al.,
Sessions Orders Justice Department to Review All Police Reform Agreements, Wash. Post (Apr. 3, 2017),
https://www.washingtonpost.com/world/national -security/sessions-orders-justice-department-to-review-all-police-reform -
agreements/2017/04/03/ba934058-18bd-11e7-9887-1a5314b56a08_story.html.
25
See, e.g., United States v. Armstrong, 517 U.S. 456, 463-66 (1996) (examining the Equal Protection Clause's prohibition on raciallymotivated
charging); Wayte v. United States, 470 U.S. 598, 608 (1985) (holding due process bars prosecution in retaliation for exercising
fundamental rights); Kolender v. Lawson, 461 U.S. 352, 355 (1983) (holding due process bars unduly vague offense definitions to reduce
opportunities for selective enforcement); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) (same).
26
See Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (regarding trial by jury as a "safeguard against the corrupt or overzealous
prosecutor").
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follow from determinations that there is insufficient evidence to support charging, and common law jurisdictions [*853] have
long left those assessments in the unregulated discretion of police and prosecutors. 27
But that is not the whole story. For one, it does not follow from the fact that officials must assess evidentiary sufficiency that
their assessments should be unregulated or unsupervised. The tradition in civil law jurisdictions is otherwise, and available
evidence often depends on the effort and priority officials give to finding it. More importantly, how rigorously we guard against
unmerited nonenforcement depends on how we value the interests harmed by nonenforcement, and on how much we worry
about nonenforcement for the wrong reasons. Both have changed over time.
The primary causes of underenforcement are failing to investigate and charge due to biases against certain victims or harms, or
favoritism toward certain kinds of suspects. 28 Three kinds of crimes - local government corruption, sexual assaults, and
unjustified uses of force by law enforcement officers - illustrate the link between these risks, failures to enforce, and the
consequences of underenforcement. Local corruption garners the least public and political attention now; 29 not coincidentally,
the United States has found an effective model of enforcement redundancy on this front. 30 The justice system's responses to
sexual assault and police violence, on the other hand, are subjects of heated political and policy debates. 31 There has been
notable progress in reducing the criminal justice system's disregard of [*854] both kinds of offenses, but underenforcement -
and almost as important, widespread suspicion of underenforcement - remain significant enough that they illustrate some of the
key costs of those failures. Suspicion of underenforcement is itself a cost, because it reflects a loss of legitimacy for criminal
justice institutions. That loss in turn undermines the system's efficacy if citizens decline to report victimization or otherwise
decline to cooperate with law enforcement officials. Evidence for those effects is strong for both sexual assaults and police
violence. 32 More generally, underenforcement is a form of unequal treatment that unevenly - and unjustly - distributes the
important public benefits of criminal law enforcement, including the state's commitment to protect everyone equally from
unlawful harms. 33 It also deprives victims of the private benefits that criminal justice is now widely recognized to afford, and
owe, to victims.
27
See Morrison v. Olson, 487 U.S. 654, 727-28 (1988) (Scalia, J., dissenting) ("Law enforcement is not automatic … . What every
prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the
public harm the greatest, and the proof the most certain." (quoting Robert H. Jackson, Attorney Gen. of the U.S., Address to the Second
Annual Conference of United States Attorneys: The Federal Prosecutor (Apr. 1, 1940))); 483 Parl Deb HC (5th ser.) (1951) col. 681 (UK) ("It
has never been the rule … that suspected criminal offences must automatically be the subject of prosecution.").
28
See Alexandra Natapoff, Underenforcement, 75 Fordham L. Rev. 1715, 1722-39 (2006) (documenting underenforcement as a significant
problem). On underenforcement of sexual assault offenses, see Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 B.C. L.
Rev. 1287, 1292-1303 (2016) (discussing empirical evidence of bias leading to underenforcement).
29
Concern about public corruption at the federal government level, by contrast, has increased, precisely where criminal and regulatory level
are somewhat weaker. See, e.g., Zephyr Teachout, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United 1-16
(2014).
30
See infra Part III.B.1.
31
See, e.g., Do Police Use Deadly Force Too Often?, N.Y. Times: Room for Debate (Apr. 9, 2015),
https://www.nytimes.com/roomfordebate/2015/04/09/are -police-too-quick-to-use-force.
32
See Michael Planty et al., U.S. Dep't of Justice, Female Victims of Sexual Violence, 1994-2010, at 6 (2013),
https://www.bjs.gov/content/pub/pdf/fvsv9410.pdf (estimating portion of sexual assaults reported to police annually varied from fifty-nine to
thirty-two percent between 2003-10); Nancy Krieger et al., Police Killings and Police Deaths Are Public Health Data and Can Be Counted,
PLOS Medicine 1-4 (2015), https://journals.plos.org/plosmedicine/article/file?id=10.1371/journal.pmed.1001915&type=printable
(describing underreporting of killings by police); Kate B. Wolitzky-Taylor et al., Is Reporting of Rape on the Rise? A Comparison of Women
with Reported Versus Unreported Rape Experiences in the National Women's Study Replication, 26 J. Interpersonal Violence 807, 807-08
(2011) (estimating fifteen percent of rapes were reported to police in 2006).
33
This point is better developed in literature on policing than prosecution. See, e.g., Angela J. Davis, Arbitrary Justice: The Power of the
American Prosecutor 166 (2007) (noting that prosecutorial discretion can unintentionally "produce inequitable results for similarly situated
DAVID SCHOEN
103 Minn. L. Rev. 844, *854
Page 7 of 42
1. Underenforcement Against Corruption
Crimes of corruption by state and local officials are a good example of harms that, at times, criminal justice systems have
unduly ignored. 34 Local police and prosecutors are not institutionally well-situated to pursue and evaluate those crimes. They
often have professional, if not personal, ties to other local officials, which heightens the risk of undue favoritism or judgments
that are otherwise not fully disinterested. That is the main reason [*855] that federal investigators and prosecutors have state
and local corruption in their portfolios. 35
2. Underenforcement Against Sexual Assault
Sexual assault offenses are another context in which underenforcement is now widely recognized, but the causes are different.
Rather than favoritism toward offenders, the problem seems to be bias against the type of offense, and, in varying degrees,
against the victims. Failures of police to rigorously pursue allegations of sexual assaults have been widely documented. 36
Among the explanations that advocates, attorneys and some scholars point to are "the entrenched nature of long-recognized,
gender-driven biases by police against domestic violence or sexual assault claims" and "against individuals from particular
groups or under particular circumstances," especially against victims who are poor or are racial, ethnic or gender minorities. 37
One large-scale empirical study of why rape-kit evidence remained untested, for example, suggested that the explanation in part
was "negative beliefs and stereotypes about victims, which adversely affected the quality of the investigation." 38 It bears
noting that much of this bias is understood to be subtle or unconscious patterns built on cultural norms, rather than conscious,
purposeful disfavor. 39 But when evidentiary records are incomplete or ambiguous, their effects are substantial.
[*856]
3. Underenforcement Against Police Excessive Uses of Force
Failures to prosecute in the wake of police shootings and other possibly excessive uses of force against civilians are scenarios
that raise suspicions of both bias against victims, many of whom are black men (and often criminal suspects, another disfavored
victims and defendants"); Natapoff, supra note 28, at 1753; David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1822
(2005) (arguing that policing failures in some communities undercuts "the egalitarian project of protecting all citizens from private
violence").
34
The point extends to private actors, especially organized crime, with ties to local officials.
35
See infra Part III.B.1. On local corruption, see generally, for example, Corruption and American Cities: Essays and Case Studies in Ethical
Accountability (Joaquin Jay Gonzalez III &? Roger L. Kemp eds., 2016) (discussing the role of corruption in American cities); James L.
Merriner, Grafters and Goo Goos: Corruption and Reform in Chicago, 1833-2003 (2004) (discussing the role of corruption in Chicago).
36
See Tuerkheimer, supra note 28, at 1292-99.
37
ACLU, Responses from the Field: Sexual Assault, Domestic Violence, and Policing 40 (2015); see also Tuerkheimer, supra note 28, at
1292-99 (citing a range of studies to conclude that "in many jurisdictions, the widespread perception that law enforcement officers will likely
not pursue allegations of rape [due to race, class or gender bias] is entirely accurate").
38
Rebecca Campbell et al., The Detroit Sexual Assault Kit (SAK) Action Research Project (ARP), Final Report 109 (2015).
39
Davis, supra note 33, at 23-34; Tuerkheimer, supra note 28 (discussing bias in sexual assault prosecutions); cf. ACLU, supra note 37
(surveying advocates, service providers, and attorneys, who described "the entrenched nature of long-recognized, gender-driven biases by
police against domestic violence or sexual assault claims" and "against individuals from particular groups or under particular circumstances,"
including "bias against survivors of color, and against survivors who are poor, Native American, immigrant, or LGBTQ"); Joshua Correll et
al., The Police Officer's Dilemma: A Decade of Research on Racial Bias in the Decision to Shoot, 8 Soc. & Personality Psychol. Compass
201, 202-09 (2014) (finding that police training reduces some forms of racial bias compared to lay people in shooting simulations but
cautioning training effects may be reduced by real-world stress and fatigue conditions); Jeffery J. Pokorak, Probing the Capital Prosecutor's
Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811, 1817 (1998) (discussing unconscious bias in death penalty
prosecutions).
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group), and favoritism toward the class of perpetrators, law enforcement officers. 40 In the ordinary organization of criminal
justice systems, those cases call on officials from one law enforcement agency to assess the evidence against officials from
another, even when the agencies regularly work together. 41 As in the context of local public corruption, conflict-of-interest
rules 42 are far from adequate to prevent prosecutors from making judgments in light of such professional relationships and
circumstances. 43 The possibility of partiality is inevitable. When [*857] that possibility combines with the long history of
racial disparities in U.S. criminal justice administration, widespread suspicion of non-prosecution decisions in cases of police
violence against minority civilians is hardly surprising, as the Black Lives Matter movement demonstrates. 44
4. Other Underenforcement Contexts
Corruption, sexual assaults, and police violence illustrate the key causes and effects of failures to enforce criminal law, but the
same forces are recognizably at work in other social contexts. Scholars and advocates have pointed to biases as explanations for
inadequate law enforcement responses to offenses against undocumented aliens, sex workers, institutionalized persons, and
targets of anti-LGBT hate crimes. 45 Complaints that police ignored wrongdoing against racial-minority victims in minority
communities were prominent in the 1970s and 1980s. 46 Some of [*858] the remedies, however - which included harsher
drug laws adopted with substantial support from African American politicians and communities - have proven deeply
problematic for those same communities. 47
Finally, less pernicious biases and favoritism are suspected explanations for lenient enforcement patterns in lower-visibility
contexts, such as bicyclists killed by motor vehicle drivers, 48 employees injured on the job due to workplace safety violations,
and bystanders shot by recreational hunters. 49 Even critics of those enforcement decisions in those settings view them as
products of subtle or unconscious empathy with vehicle drivers, employers, and recreational gun users, which incline officials
40
Prison guard assaults on inmates raise the same concerns, although they get less public attention. For a notorious failure to prosecute
prison guards and law enforcement officials for unjustified lethal force, see generally Heather Ann Thompson, Blood in the Water: The Attica
Prison Uprising of 1971 and Its Legacy (2016).
41
Cf. Paul Cassell, Who Prosecutes the Police? Perceptions of Bias in Police Misconduct Investigations and a Possible Remedy, Wash. Post:
Vololkh Conspiracy Blog (Dec. 5, 2014), https://www.washingtonpost.com/news/volokh -conspiracy/wp/2014/12/05/who-prosecutes-thepolice-perceptions-of-bias-in-police-misconduct-investigations-and-a-possible-remedy
(describing the problem of local prosecutors' handling
police cases as a "perception of bias" rather than a "conflict of interest" and recommending state attorneys general handle police cases). One
solution, followed in Wisconsin, is to assign investigation of deaths involving law enforcement officers to a state-level investigative agency
unconnected to the local agency of the officer under investigation.Wis. Stat.§§175.47, 950.04(1v)(do), 950.08(2g)(h) (2014).
42
E.g., Criminal Justice Standards 3-1.3 (A.B.A. 2015); cf. Braman v. Corbett, 19 A.3d 1151, 1154 (Pa. Super. Ct. 2011) (describing a
situation where a district attorney's office recused itself from decision to prosecute on a private complaint alleging the district attorney
committed rape, and the state attorney general investigated and made the decision not to prosecute).
43
For a disturbing account of prosecutorial deference to police, see Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in
America's Largest Criminal Court 127-56 (2016); David A. Harris, The Interaction and Relationship Between Prosecutors and Police Officers
in the United States, and How This Affects Police Reform Efforts, in The Prosecutor in Transnational Perspective 54, 55, 60-63 (Erik Luna &
Marianne Wade eds., 2012) (describing reasons why the prospect of police reform through the efforts of state prosecutors is "bleak"); Nicole
Gonzalez Van Cleve, Chicago's Racist Cops and Racist Courts, N.Y. Times (Apr. 14, 2016),
https://www.nytimes.com/2016/04/15/opinion/chicagos-racist-cops-and-racist-courts.html; see also Kate Levine, The Ultimate Conflict, Slate
(Sept. 11, 2014),http://www.slate.com/articles/news_ and_politics/jurisprudence/2014/09/local_prosecutor_bob_mcculloch_should_
not_be_the_one_to_decide_whether_to.html. For a harrowing account of a federal prosecutor who did not show deference to fellow law
enforcement officials and faced apparent retaliation for it, see Paul Butler, Let's Get Free: A Hip-Hop Theory of Justice 1-21 (2009).
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to assess conduct as non-negligent rather than reckless. 50 Yet even those relatively benign affinities can lead to sub-optimal
enforcement policies that might benefit from redundant evaluation of charging decisions.
B. Other Contributions to Underenforcement
It is worth noting that prosecutors themselves might not share those biases so much as take account of them in a local
community and jury pool. Expecting juries will be unreceptive to a case is one reason that some prosecutors cite for not
charging in some cases. There is evidence for this with regard to hate [*859] crimes against LGBT victim groups, for
example, 51 and the difficulty prosecutors have faced in convicting police officer defendants is a well-recognized hurdle in
police violence cases. 52 The same considerations can cut against prosecutions when victims are undocumented immigrants,
sex workers, prisoners, and suspects in custody. 53 Redundant enforcement authority can do less to redress this barrier,
although depending on its form, it is not powerless. A separate prosecuting authority might bring better investigation and fact
development, or different jurisdictional rules that change the composition of jury venires. 54
Inadequate funding for criminal justice agencies can also play a role in aggravating areas of unjustified underenforcement.
Lack of public resources is an accepted (and inevitable) justification for declining to prosecute in some cases where evidence is
sufficient to prove guilt. 55 But funding constraints are [*860] not an affirmative good on par with other policy-based, publicinterest
justifications for non-prosecution, such as judgments finding that civil, regulatory, or public-health remedies are
preferable to criminal sanctions, or concluding that third-party harms outweigh prosecution's benefits. 56 Resource constraints
are a problem justice systems would like to minimize. Two of the three primary forms of enforcement redundancy do exactly
that, or have in the past. Expanding federal law enforcement jurisdiction over crimes already within state jurisdiction was
designed to bring federal resources to bear on crimes where state resources were insufficient. 57 And private prosecution,
where it [*861] still exists, has an equivalent effect - it permits victims to contribute private funds to public enforcement
efforts. It is no coincidence that common law jurisdictions relied on private prosecution most heavily - through the midnineteenth
century - when state capacity, including criminal justice infrastructure, was much thinner. 58
44
See, e.g., Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176, 2204 (2013) (describing protest
movements and other responses to racially disparate criminal justice policies); Roseanna Sommers, Will Putting Cameras on Police Reduce
Polarization?, 125 Yale L.J. 1304, 1307-17 (2016) (describing polarized public perceptions of, and protests against, police uses of force and
non-prosecution of police); What We Believe, Black Lives Matter, https://blacklivesmatter.com/about/what-we-believe (last visited Oct. 30,
2018).
45
See Avlana Eisenberg, Expressive Enforcement, 61 UCLA L. Rev. 858, 861-64 (2014) (studying the reasons prosecutors choose not to
charge hate crimes); Natapoff, supra note 28 (summarizing evidence of underenforcement of crimes against prostitutes, undocumented
immigrants, residents of certain low-income neighborhoods, and drug-crime suspects); see also Human Rights Watch, supra note 22, at 102
("In fiscal year 1997, the [DOJ] Civil Rights Division received a total of 10,891 complaints [against law enforcement officers], … leading to
twenty-five indictments and informations, involving sixty-seven law enforcement agents; nine were convicted, nineteen entered guilty pleas,
and four were acquitted."); Ryan Gabrielson et al., Deadly Force, in Black and White, ProPublica (Oct. 10, 2014),
https://www.propublica.org/article/deadly-force-in-black-and-white ("Analysis of killings by police shows outsize risk for young black
males.").
46
See Kennedy, supra note 2, at 29-75 (providing a broader account of complaints about law enforcement providing insufficient protection
to black communities); Rod K. Brunson & Ronald Weitzer, Police Relations with Black and White Youths in Different Urban
Neighborhoods, 44 Urb. Aff. Rev. 858, 876 (2009) ("Perceived police under-protection or poor service in poor, minority neighborhoods has
been complained about for generations … .").
47
Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment 173-216 (2015) (describing
support from working-class and middle-class blacks for punitive drugs laws in the 1970s as a means to fight growing disorder in black
communities); Kennedy, supra note 2, at 351-86; David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1285-90
(1995) (describing the effects of anti-cocaine laws on black communities). Underenforcement of criminal law by southern states through the
1960s, when civil rights activists were the victims, are another example.
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When resource constraints remain, however, they force officials to choose which cases get priority. That creates more
opportunity for biases and favoritism to play a role in determining which cases to charge and which to forgo. That is especially
so with crimes in which evidence development is more costly, so officials have to decide whether to invest scarce resources in
those that require substantial investigative efforts. Both sexual assault and police violence cases often require larger-scale
investments to develop evidence sufficient for prosecution. Failures to make those investments are common reasons for nonprosecution
in both contexts. 59
II. MECHANISMS OF PROSECUTORIAL ACCOUNTABILITY
For a range of reasons and across a range of contexts, public prosecutors' failures to enforce criminal law have been of
sufficient concern to lead contemporary justice systems to devise checks against unjustified underenforcement. Approaches
take three basic forms: (1) limited authority for private parties to initiate or participate in criminal prosecutions; (2) independent
review of initial non-prosecution decisions, upon petition from a [*862] victim; and (3) multiple, independent public
prosecution agencies with independent authority to bring charges for the same wrongdoing. Outside the United States, the first
two options predominate; their expansion in recent years is a direct consequence of broader reforms to expand crime victims'
rights. 60 U.S. jurisdictions, however, rely almost wholly on the third model. Despite having adopted otherwise expansive
victims' rights laws in recent decades in response to an influential movement for crime victims' rights, state and federal laws
consistently and explicitly avoid granting any formal authority to private parties, or courts, over criminal charging. The next
three Sections provide an overview of these options, where they exist. Largely with regard to U.S. policy choices only, they
also suggest reasons that one model prevailed over others.
A. Victim Rights and Private Versus Public Interests
In the wake of victims' rights movements in North America and Europe, crime victims now have an array of legal rights once
criminal charges are filed. Victims in the U.S. and European jurisdictions now commonly have rights to participate that include
rights to consult with prosecutors, to be notified of and present at court proceedings, and to offer statements at stages such as
hearings on bail, sentencing, and parole. 61
48
See Daniel Duane, Is It O.K. to Kill Cyclists?, N.Y. Times (Nov. 9, 2013), https://www.nytimes.com/2013/11/10/opinion/sunday/is-it-okto-kill-cyclists
.html (discussing failures to prosecute motor vehicle drivers who injure or kill bicyclists); see also BikeMaps.org,
https://bikemaps.org (last visited Oct. 30, 2018) (displaying a crowd-sourced map of locations of cyclist injuries and fatalities).
49
See John F. Decker, Don't Forget to Wear Your Hunter Orange (or Flack Jacket): A Critique on the Lack of Prosecution of Hunting
"Accidents," 56 S.C. L. Rev. 135, 166-73 (2004).
50
See id.; Duane, supra note 48.
51
Eisenberg, supra note 45, at 893-96 (discussing data from prosecutor interviews). In the contexts Eisenberg describes, prosecutors
typically forgo hate-crime offenses in favor of other charges rather than declining to prosecute altogether. Though the focus here is on
prosecutors, they may not be the key cause of underenforcement. For similar reasons, police may not investigate or arrest in such cases, or if
they do prosecution can be undermined by lax evidence-gathering. Police practices are the focus on much of the scholarship on
underenforcement of certain offenses. Much of the literature on inadequate enforcement of sexual assault crimes focuses on weaknesses in
the police rather than prosecutors. See, e.g., Tuerkheimer, supra note 28, at 1292-99 (discussing evidence of police bias).
52
See, e.g., Alan Blinder, Michael Slager, Officer in Walter Scott Shooting, Gets 20-Year Sentence, N.Y. Times (Dec. 7, 2017),
https://www.nytimes.com/2017/12/07/us/michael-slager-sentence-walter-scott.html (explaining that an officer pled guilty in federal court
after a 2016 prosecution in state court ended with a hung jury).
53
See Natapoff, supra note 28.
54
See, e.g., id.
55
See U.S. Dep't of Justice, United States Attorneys' Manual § 9-27.230 cmt. 1 (1997) (recognizing limited prosecution resources); see also
Human Rights Watch, supra note 22, at 99 (listing "lack of investigative or prosecutorial resources" among the most common reasons noted
by the federal Civil Rights Division for declining to prosecute); U.S. Dep't of Justice, FY 2013 Performance Budget: Civil Rights Division 39
(noting that strengthening of civil rights enforcement efforts under the "Vulnerable People Priority" policy "has been reversed because full
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Under the criminal justice systems of all other major common law countries and nearly all European states, victims' rights also
include authority to challenge prosecutors' decisions not to prosecute, either by a limited right to initiate prosecutions as private
parties or by enabling victims to trigger judicial or [*863] administrative review of noncharging decisions. 62 By contrast,
nearly every U.S. jurisdiction rejects these mechanisms. State and federal laws consistently avoid permitting victims any power
to challenge or encroach on public prosecutorial authority. Federal law, for example, explicitly dictates that "nothing in this
[victims' rights] chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under
his direction." 63 State statutes manifest the same policy in various ways, such as by prohibiting legal remedies for violations
of participation rights they create. 64 U.S. laws limit victims' participation to "non-dispositive" forms, such as providing
information and personal statements to prosecutors, judges, and parole boards, which facilitates victims' influence on public
officials' decisionmaking. 65 But state and federal policy rejects enlisting victims as "agents of accountability" for public
prosecution. 66
In U.S. jurisdictions and elsewhere, the conceptual innovation of victims' rights laws was to recognize victims' distinct private
[*864] interests in public criminal litigation. Most rights are specific entitlements to advance victims' broader, dignitary right
to be "treated with fairness and with respect for the victim's dignity." 67 These provisions conceive of victims as "agents of
individual rights" and "independent from systemic interests," and their interests can either conflict or align with those of law
enforcement. 68 At the same time, victim participation rights can also be understood to serve a broader public interest in
procedural outcomes, on the premise, for example, that prosecutors' and judges' decisions will improve with direct input from
victims. Public decisionmaking risks substantive deficiency, and criminal process would be procedurally deficient, without due
regard for victims' interests. Jurisdictions that empower victims to challenge non-prosecution decisions enable private parties
themselves to address the problem of criminal law underenforcement. The remainder of this Section provides some detail on
contemporary forms of private prosecution authority, their capacity to advance public as well as private interests, and reasons
for its absence (or demise) in U.S. jurisdictions.
1. Private Prosecution in the Shadow of Public Prosecution
funding of these program areas was not provided"). In specific contexts as diverse as tax law and marijuana control, legislators intentionally
limit enforcement budgets in order to restrict enforcement efforts. See Daniel C. Richman, Federal Criminal Law, Congressional Delegation,
and Enforcement Discretion, 46 UCLA L. Rev. 757, 793-99 (1999) (discussing agency budget appropriations as a mechanism of congressional
control over some agencies, such as the IRS, more than others, such as the FBI); Rachael Bade, Republicans Seek to Cripple IRS: The GOP's
Moves Will Gut the Tax Agency, Advocates Warn, Politico (Dec. 11, 2014), https://www.politico.com/story/2014/12/republicans-irsregulations-113484
(quoting a senator's aim to use "the power of the purse" to "push back on the regulatory overreach" of the IRS and EPA);
Douglas A. Berman, Mixed Outcomes for Marijuana Reform Efforts in Latest Omnibus Spending Bill from Congress, Sent'g L. & Pol'y Blog
(Dec. 16, 2015),http://sentencing.typepad.com/sentencing_law_and_policy/2015/week51/index.html (describing H.R. 4660, enacted as part of
a spending bill, which prohibited spending of Justice Department funding to hinder state medical marijuana policies).
56
See, e.g., Crown Prosecution Serv., The Code for Crown Prosecutors 4 (2013),
https://www.cps.gov.uk/sites/default/files/documents/publications/code_2013_accessible_english.pdf (providing guidelines for England and
Wales). Familiar policies include declinations based on first-offender or drug-court diversion programs, the adequacy of civil penalties, a
policy preference for public health responses to drug abuse, and - with regard to marijuana - federal deference to state policymaking. See
Memorandum from James M. Cole, Deputy Attorney Gen. to U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29,
2013),http://www.justice. gov/iso/opa/resources/3052013829132756857467.pdf (describing Justice Department policy not to prosecute
marijuana dealers who comply with state law). For local examples, see Joseph Goldstein, Spare a Swipe? New York City Eases Rules for a
Subway Request, N.Y. Times (Apr. 17, 2016), https://www.nytimes.com/2016/04/18/nyregion/spare-a-swipe-new-york-city-eases-rules-for-asubway-request.html
(describing a new policy "by the Manhattan district attorney's office to no longer prosecute people arrested for minor
infractions such as swipe-begging, smoking in the subway, or taking up two seats on a subway car"); Greg LaRose, No Arrests for Pot
Possession in New Orleans, Council Decides, Nola.com (Mar. 17, 2016),
https://www.nola.com/politics/index.ssf/2016/03/marijuana_possession_ city_coun.html (reporting city council vote to expand range of
marijuana offenses for which police do not have to arrest offenders or charge as state criminal misdemeanors); Max Taves & Justin Scheck,
San Francisco Police Ease Drug Enforcement, Wall St. J. (Aug. 1, 2012),
https://www.wsj.com/articles/SB10000872396390444226904577559243414878630 (describing police treating drug possession crimes as a
low priority in part because the chief prosecutor "looks at drug possession as a health issue"). Seattle city voters in 2003 approved Initiative
75, which established adult personal marijuana use as "Seattle's lowest law enforcement priority." Seattle Voters Approve Initiative Making
Marijuana Enforcement City's "Lowest Priority," NORML (Sept. 18, 2003),http://norml.org/news/2003/09/18/seattle-voters-approveinitiative-making
-marijuana-enforcement-city-s-lowest-priority.
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Public prosecutors now dominate enforcement decisions in both common law-based and civil law-based justice systems
worldwide. That is hardly surprising, given the far-reaching regulatory scope of modern criminal law and high expectations that
the state will ensure security against social disorder and innumerable harms, and will intervene in risk creation long before
manifest criminal conduct or injury. 69 That agenda requires capacity, resources, and expertise that only public agencies can
marshal. Moreover, a criminal enforcement regime that relied heavily on private plaintiffs would be one skewed against redress
for poor victims who cannot bear litigation costs to vindicate their own interests. 70 Without safeguards, such a regime [*865]
also could be at the mercy of the varied, perhaps idiosyncratic motives and interests of private actors lodging criminal
complaints.
Still, many countries continue to authorize private citizens to initiate criminal prosecutions when public officials do not, and
others allow privately funded attorneys to assist or supplement public prosecutors in litigating criminal cases. Canada,
Australia, New Zealand, and England and Wales all continue to allow private prosecutions, 71 and fifteen of the twenty-eight
member states of the European Union grant victims some comparable [*866] authority. 72 Details vary across jurisdictions,
but everywhere private prosecutors' authority is limited by oversight from public [*867] prosecutors and courts. 73 The
standard common law model is that public prosecutors retain the power to take over privately filed charges and then either try
the case themselves, negotiate a plea bargain, or - more commonly when intervention occurs - dismiss the charges altogether.
In this framework, private actors can press charges when public officials do not, but functionally they serve primarily as a
mechanism for political accountability. Through private charging in the wake of public prosecutors' declination, victims force
public officials to justify publicly their reasons for not charging and for vetoing privately filed charges - and to do so on
grounds other than public resource constraints, given that a private actor has offered to bear the costs. Given the private cost
barriers and the capacity of public prosecution agencies, it is unsurprising that, even where permitted, privately initiated
charges nonetheless contribute to a tiny fraction of prosecutions on criminal dockets. 74
2. Abolition of Private Prosecution in State Criminal Justice
U.S. jurisdictions are comparative exceptions; nearly all long ago prohibited privately initiated prosecutions, 75 even though in
other contexts private actors continue to enforce public law in service of public interests. 76 But private criminal charges were
57
See Harmon, Policing Reform, supra note 21, at 20-51. Federal funding to state and local enforcement agencies is a more direct example
of supplementing resources. Federal influence over local enforcement policies that comes with such funding is an attenuated version of
enforcement redundancy. Id. at 66.
58
On staffing of state prosecutor offices in the nineteenth century, see Nicholas R. Parrillo, Against the Profit Motive: The Salary
Revolution in American Government, 1780-1940, at 11-23 (2013).
59
On sexual assault cases (especially reasons for not testing evidence gathered in rape kits), see Campbell et al., supra note 38, at 60-100;
Tuerkheimer, supra note 28, at 1297. On police use-of-force cases, see Human Rights Watch, supra note 22, at 99 (reporting that the Justice
Department Civil Rights Division's "most common reasons for declining prosecution were: weak or insufficient admissible evidence … ; lack
of evidence of criminal intent; … and lack of investigative or prosecutorial resources"). For a good analysis of how police shootings of
"unarmed victims" vary widely in critical factual details and why many are justified, see Heather Mac Donald, Black and Unarmed: Behind
the Numbers: What the Black Lives Matter Movement Misses About Those Police Shootings, Marshall Project (Feb. 8, 2016), https://www
.themarshallproject.org/2016/02/08/black-and-unarmed-behind-the-numbers.
60
See, e.g., Council Directive 2012/29, 2012 O.J. (L 315) 57 (EC), http://eur -lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:32012L0029
(defining standards for treatment and rights of crime victims in E.U. member states); Marie
Manikis, Conceptualizing the Victim Within Criminal Justice Processes in Common Law Tradition, in Oxford Handbook on Criminal
Process (Darryl K. Brown et al. eds., forthcoming 2019) (manuscript at 18-19) (on file with author).
61
For an overview of victim rights in Europe, see Slawomir R. Buczma, An Overview of the Law Concerning Protection of Victims of
Crime in the View of the Adoption of the Directive 2012/29/EU Establishing Minimum Standards on the Rights, Support and Protection of
Victims of Crime in the European Union, 14 ERA F. 235, 239-41 (2013). On U.S. jurisdictions, see Crime Victim Rights Act (CVRA), 18
U.S.C. § 3771(a) (2012) (enumerating the federal rights of victims of crime); Michael Solimine & Kathryn Elvey, Federalism, Federal
Courts, and Victims' Rights, 64 Cath. U. L. Rev. 909, 913-14 & nn.30-31 (2015) (collecting all thirty-two state constitutional provisions and
all fifty state statutes relating to victims' rights).
62
See infra Part II.B.
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once common and significant in many state justice systems. U.S. colonies and states created public prosecution offices much
earlier than England. 77
[*868] Even so, in the nation's earliest decades, those officials were often part-time or short-term officials, whose duties were
often primarily quasi-judicial or administrative. 78 For those reasons, in many states those officials coexisted alongside private
prosecutors with whom they shared some similarities. Early public prosecutors were paid by the case or the conviction 79 and
pursued cases from private complainants. 80 But by the mid-nineteenth century, every state had public prosecutor offices of
some sort. 81 Increasingly, they were full-time and accompanied by [*869] public police forces. In this context, private
prosecutions diminished, then vanished. 82
However, because public prosecutors continued to suffer from poor funding (and consequently were held in low regard), 83
some states continued an alternate form of private prosecution: privately funded attorneys could assist in criminal prosecutions
as long as the public prosecutor supervised or retained formal control. 84 This form of ancillary or supplementary private
prosecution, which leaves charging decisions in public hands, is still permitted in several states. 85 Otherwise, only vestiges of
private [*870] prosecution remain in a few states. Pennsylvania seems to have the strongest version: it permits private
prosecutions for any offense upon the approval from a state prosecutor or a judge. 86 Rhode Island authorizes private
prosecutions only for misdemeanors. 87 Under state common law, New Hampshire might permit the same for nonjailable
offenses. 88 Beyond that, judges in many states can issue an arrest warrant or criminal summons based on a private person's
testimony, but public prosecutors control whether to go forward with the case. 89
[*871] In sum, U.S. jurisdictions are unusual among common law jurisdictions in having abolished private prosecution as a
means to vindicate victims' private interests, a supplement to public enforcement resources, and a structural check on selective
underenforcement from biases in public prosecutors' discretionary decisions not to charge. English authorities, in contrast,
explicitly recognize this public function for private prosecution. Private actors' authority to second-guess declination decisions -
charging decision redundancy - operates as "the ultimate safeguard for the citizen against inaction on the part of the
authorities." 90 The only remnant of this view in the United States seems to be in Pennsylvania. Its courts view victim-initiated
63
18 U.S.C. § 3771(d)(6). Elsewhere, regarding victim complaints of rights violations to the Justice Department, the statute provides that
"the Attorney General … shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the
Attorney General by a complainant." Id. § 3771(f)(2)(D); see also United States v. Thetford, 935 F. Supp. 2d 1280, 1282 (N.D. Ala. 2013)
("These rights, however, do not extend to giving crime victims veto power over the prosecutor's discretion."); Does v. United States, 817 F.
Supp. 2d 1337, 1343 (S.D. Fla. 2011) ("To the extent that the victims' pre-charge CVRA rights impinge upon prosecutorial discretion, under
the plain language of the statute those rights must yield.").
64
See, e.g., Ohio Rev. Code Ann. § 2930.06(A) (West 2004) ("A prosecutor's failure to confer with a victim … does not affect the validity"
of a decision to dismiss charges, plea agreement, or other disposition). Only a few jurisdictions, such as California and the federal system,
provide for meaningful enforcement of participation rights by, for example, allowing victims to intervene in trial proceedings to demand
rights, or to appeal trial court violations; to facilitate a remedy, courts may order that a guilty plea or sentence be re-opened. See Cal. Const.
art. I, § 28(c)(1) (stating that a victim may enforce a list of enumerated rights in trial or appellate court "as a matter of right"); 18 U.S.C. §
3771(d); cf. Paroline v. United States, 134 S. Ct. 1710, 1718 (2014) (providing an example of a decision resulting from a victim's appeal of a
restitution order).
65
See Ian Edwards, An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making, 44 Brit. J. Criminology 967, 974
(2004) (classifying "dispositive" and "non-dispositive" forms of victim participation and putting modes of consultation, informationprovision,
and expression under the latter heading).
66
See Marie Manikis, Expanding Participation: Victims as Agents of Accountability in the Criminal Justice Process, Pub. L. 63, 69 n.29
(2017).
67
See, e.g., Ohio Const. art. I, § 10(a) (establishing victims' rights to "fairness, dignity, and respect"); Tex. Const. art. I, § 30(a)(1)
(establishing victims' "right to be treated with fairness and with respect for the victim's dignity and privacy"); 18 U.S.C. § 3771(a)(8)
(establishing victims' "right to be treated with fairness and with respect for the victim's dignity").
68
Manikis, supra note 60.
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prosecutions as fulfilling the same structural purpose. Allowing private actors to begin prosecutions meets "the need for a
system of checks and balances on the office of the district attorney" and "constitutes a recognition by the legislature that the
office of the district attorney should be subject to a system of checks and balances." 91
The rarity of private charges in jurisdictions that authorize them hardly justifies their abolition. Private prosecutions should be
rare in well-functioning public prosecution systems, because public agencies pursue most provable cases and because private
actors must bear considerable costs to press charges themselves. Moreover, other rules and institutions - including other
safeguards on prosecutorial charging - endure despite few indications of their utility. There has never been a successful claim
that a criminal charge violated the Equal Protection prohibition on racially biased charging, 92 but few argue the doctrine lacks
at least normative value. 93 Grand juries rarely reject prosecutors' [*872] charging requests for indictments, but courts
continue to tout them as a structural check on prosecutors. 94 Like private prosecution, these safeguards may work by deterring
biased or ill-conceived prosecutorial decisions; their efficacy is probably impossible to measure.
A contributing explanation for the U.S. aversion to private prosecution may lie in a familiar theme of U.S. law and history:
race. During the first several decades of the nineteenth century, when private citizens could prosecute crimes, many states - and
not only Southern ones - either denied African Americans legal capacity as litigants 95 or barred them from testifying under
oath on the basis of race. Among other effects, those barriers barred private prosecutions by African Americans. 96 After 1865
- an era in which rights to litigate and testify were viewed by many as more meaningful than the right to vote 97 - those racebased
legal disabilities were abolished. 98 In the same period, private charging authority, already on the decline, was abolished
in most [*873] states that still permitted it. States that retained a formal litigation role for crime victims did so by allowing
privately funded attorneys to assist in prosecutions filed and controlled by public prosecutors, thus ensuring that public officials
are the exclusive gatekeepers of criminal law enforcement. Between the 1840s and 1860s, prosecutors had become locally
elected officials in nearly all states. That effectively aligned their charging monopoly with the preferences of local white
majorities (or white minorities in localities in which black citizens were the majority, once Southern whites succeeded in
disenfranchising black citizens). 99 Evidence for the relationship between race and the demise of private prosecution is
69
Among myriad examples are crimes of preparation, conspiracy, possession of contraband, consensual exchanges (e.g., of drugs or sex for
money), and many kinds of criminal attempts. See Andrew Ashworth & Lucia Zedner, Preventive Justice 95-118, 171-223 (2014).
70
Douglas Campbell, 2 The Puritan in Holland, England, and America 444 (1892) (criticizing the English system of private prosecution as
one "by the rich for the rich"); Joan E. Jacoby, The American Prosecutor: A Search for Identity 17 (1980). German victims who challenge a
non-prosecution decision must put up security to cover the public costs of judicial review. See Strafprozessordnung [StPO] [Code of Criminal
Procedure], § 176, translation at https://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo .html; Ante Novokmet, The Right of a
Victim to a Review of a Decision Not to Prosecute as Set out in Article 11 of Directive 2012/29/EU and an Assessment of Its Transposition
in Germany, Italy, France and Croatia, 12 Utrecht L. Rev. 86, 94 (2016).
71
For England and Wales, see Prosecution of Offences Act 1985, c. 23, § 6, https://www.legislation.gov.uk/ukpga/1985/23 (stating that the
creation of Crown Prosecution Service shall not "preclude any person from instituting any criminal proceedings or conducting any criminal
proceedings"). For Canada, see, for example, Ontario Provincial Offences Act, R.S.O. 1990, c. P.33; Director of Public Prosecutions Act,
S.C. 2006, c 9, § 121, para. 3(3)(f) (describing DPP "duties and functions," which includes "exercising the authority of the Attorney General
respecting private prosecutions, including to intervene and assume the conduct of - or direct the stay of - such prosecutions"); Private
Prosecutions, Ministry Att'y Gen., https://www.attorneygeneral.jus.gov.on.ca/english/private_prosecution.php (last modified Oct. 29, 2015)
(describing private prosecutions and noting "the Criminal Code and the Crown Attorneys Act authorize Crown Counsel to supervise privately
laid charges to ensure that such prosecutions are in the best interest of the administration of justice" and to "take over the prosecution" of
indictable offences); Private Prosecutions, Pub. Prosecution Serv. Can.,http://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/fpd/ch26 .html
(last modified Dec. 24, 2008). For Australia, see, for example, Director of Public Prosecutions Act 1983 s 10(2) (Austl.) (preserving private
prosecution); id. s 9(5) (giving the Director power to take over a prosecution for a Commonwealth offence that has been instituted by another
and either carry on or discontinue it); Annual Report 2014-15, Commonwealth Dir. Pub. Prosecutions (2015), https://www.cdpp.gov.au/2014
-15-annual-report-html-0 (reporting three private prosecutions in 2014-15, two of which were discontinued by the DPP); see also Director of
Public Prosecutions Act 1984 (Queensl.) s 10(c)(2) (Austl.) (giving DPP the power to "take over and conduct" criminal proceedings);
Director of Public Prosecutions Act 1986 (N.S.W.) s 9 (Austl.) (using similar language to Commonwealth DPP Act); Dir. of Pub.
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correlative rather than causal, but it nonetheless suggests a reason for why state justice systems took a different path from other
common-law jurisdictions and abolished private charging. Local white majorities had little need for a structural check on
prosecutors they elected, and they likely did not want a way for African-American citizens to challenge prosecutors and
independently pursue their interests in criminal courts. Prosecution redundancy would reduce the control of local majorities to
dictate enforcement policies, including preferences for selective underenforcement.
B. Judicial and Administrative Review of Decisions Not to Charge
A second structure that creates some redundant authority over decisions not to prosecute exposes those prosecutorial decisions
to review, either by courts or by supervising officials within an administrative hierarchy. As with private prosecution, this
mechanism is almost nonexistent among U.S. jurisdictions, with the significant exception of federal law. But this option has
gained ground elsewhere, in England and throughout E.U. countries. In all these contexts, its adoption responds to demands for
expanded victims' rights in the criminal process. This Section briefly surveys prominent examples of noncharging review in
federal law and Europe, then considers why state justice systems uniformly reject it.
[*874]
1. Oversight of Declination Decisions in Europe
Pursuant to an E.U. Directive, 100 twenty-five of the twenty-eight member states of the European Union grant crime victims
formal rights to seek review of decisions not to file criminal charges based on their complaints. 101 The details of these review
procedures vary. Some authorize judicial review of prosecutors' decisions; most jurisdictions, including Scotland and France,
provide at least a means for review by independent officials within the prosecution agency, perhaps with an additional
possibility for judicial review. 102 Although E.U. nations with common law-based legal systems, such as Ireland, Northern
Ireland, 103 and England, have adopted versions of this practice, the [*875] practice is more established in civil law
jurisdictions, likely because it is consistent with the longstanding duty in some civil law countries of mandatory prosecution.
104
Prosecutions Vict., Annual Report 14-15, at 86,http://www.opp.vic.gov.au/getattachment/8bc2fefc-8715-4516-9fb8-
57ea3e4b6342/OPP_Annual_Report_14_15_Full_web .aspx (noting that pursuant to discretion granted under § 22(b)(ii), the DPP took over
and dismissed one private prosecution instituted for an "improper purpose"). Regarding New Zealand, see Criminal Disclosure Act 2008
(N.Z.); Criminal Procedure Act 2011 (N.Z.); Crown Law, Solicitor-General's Prosecution Guidelines 4 (2013), http://www
.crownlaw.govt.nz/assets/Uploads/Prosecution-Guidelines/prosecution-guidelines-2013.pdf. Scotland is much more restrictive. See Criminal
Procedure (Scotland) Act 1975, c. 21, § 310A (Scot.) (stating in a provision added in 1996 that "except where any enactment otherwise
expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal"); Frazer McCallum,
Scottish Parliament Info. Ctr., The Scottish Criminal Justice System: The Public Prosecution System 2 (2016), http://www
.parliament.scot/ResearchBriefingsAndFactsheets/S5/SB_16-47_The_
Scottish_Criminal_Justice_System_The_Public_Prosecution_System.pdf ("Prosecutions by private individuals are possible in some
circumstances, but are very rare."). Before 1995, judicial approval was granted for only two private prosecutions in Scotland in the twentieth
century. See Woman Loses Attempt to Bring Private Prosecution. Judges Reject Move on Rape Case, Herald Scot. (June 1, 1995),
http://www.heraldscotland.com/sport /spl/aberdeen/woman-loses -attempt-to-bring-private-prosecution-judges-reject-move-on-rape-case-1
.677607.
72
See Challenging the Decision Not to Prosecute, Eur. Union Agency for Fundamental Rts. (2014) [hereinafter FRA Report],
http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparative-data/victims-support -services/prosecution (summarizing
policies of EU nations). This source arguably overstates private-prosecution jurisdictions by characterizing "private prosecution" broadly to
include states, such as France, in which victims can initiate petty offense charges and inquiries by investigating judges but may pursue only
civil actions without public prosecutors. See Country Studies for the Project "Victim Support Services in the EU: An Overview and
Assessment of Victims' Rights in Practice,' Eur. Union Agency for Fundamental Rts. (Feb. 2016), http://fra.europa.eu/en/countrydata/2016/country-studies-project-victim-support
-services-eu-overview-and-assessment-victims. For separate developments in the Council
of Europe, including standards for victim assistance and procedural rights to be informed about and participate in criminal proceedings, and
for a victim's right to review decisions not to prosecute, see Comm. of Ministers, Council of Eur., Recommendation Rec(2006)8 of the
Committee of Ministers to Member States on Assistance to Crime Victims (2006); Comm. of Ministers, Council of Eur., Recommendation
No. R (87) 4 of the Committee of Ministers to Member States Concerning the Simplification of Criminal Justice (1987); Comm. of Ministers,
Council of Eur., Recommendation No. R (87) 4 of the Committee of Ministers to Member States on the Protection of Workers in the Event of
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The mandatory prosecution duty, known as the "legality principle," is itself a safeguard against selective underenforcement due
to bias or favoritism. It is primarily an anti-discrimination injunction, intended to ensure that prosecutors treat like cases alike,
rather than a mandate to ensure public safety and order through full enforcement. 105 Administrative and judicial enforceability
of that duty is intended to ensure its effectiveness.
2. Oversight of Declination Decisions in England and Wales
The United Kingdom was an E.U. member state when the victim's right Directive was issued, 106 and its largest criminal
[*876] justice system - the combined jurisdictions of England and Wales - provides several grounds on which victims or other
aggrieved parties may obtain both administrative and judicial review of non-prosecution decisions. Yet the reasons for this
relate foremost to public rather than private interests: "a decision not to prosecute, especially in circumstances where it is
believed or asserted that the decision is or may be erroneous, can affect public confidence in the integrity and competence of
the criminal justice system." 107
In line with other E.U. member states, English victims can seek administrative review within the Crown Prosecution Service.
The process appears to be meaningful; in recent years, between seven and thirteen percent of prosecution decisions challenged
in this way have been reversed. 108 Moreover, noncharging decisions are also subject to judicial review - a policy rarely seen
in other common law jurisdictions. 109 The standard is deferential, but English courts do periodically overturn non-prosecution
decisions after evaluating them against written standards in the Code for Crown Prosecutors and other guidelines. 110 English
courts have disapproved of decisions not to prosecute upon finding they were based on an unlawful policy 111 or were found to
be [*877] "perverse" under a general reasonableness standard. 112 And in particular contrast to U.S. law with regard to lethal
force by police, English judges give special scrutiny to cases that arise from deaths in state custody, which by their nature raise
the specter of prosecutorial favoritism toward fellow law enforcement officials. 113
Employers' Insolvency (1987); Comm. of Ministers, Council of Eur., Recommendation No. R (85) 11 of the Committee of Ministers to
Members States on the Position of the Victim in the Framework of Criminal Law and Procedure (1985). For analysis of Directive 2012/29 as
well as Council of Europe recommendations, see Buczma, supra note 61, at 242-48. In Germany, victims can initiate a private prosecution for
certain minor offenses, and for more serious offenses may take a formal role as accessory prosecutors with rights to participate in proceedings
and to be heard before charges are dismissed. See Strafprozessordnung [StPO] [Code of Criminal Procedure], §§374-94, translation at
https://www.gesetze-im-internet.de/englisch_ stpo/englisch_stpo.html (describing rights of privateklage); id. §§153, 395-402 (describing
rights of nebenklager); see also id.§§403-406c (describing compensation); id. § 172 (describing victim's right to seek court order to compel
public prosecution); Michael Bohlander, Principles of German Criminal Procedure 25, 64 (2012).
73
This describes, for example, the German system that allows private parties to act as accessory prosecutors alongside public prosecutors.
See Strafprozessordnung [StPO] [Code of Criminal Procedure],§§153, 395-402 (describing rights of nebenklager).
74
See, e.g., Commonwealth Dir. of Pub. Prosecutions, supra note 71 (reporting three private prosecutions in federal courts in 2014-15).
75
By the end of the nineteenth century, state and federal justice systems were firmly committed to the principle that prosecution is an
exclusive power of public officials in which private victims have no role or standing. See Malley v. Lane, 115 A. 674, 676 (Conn. 1921); cf.
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] citizen lacks standing to contest the policies of the prosecuting authority when he
himself is neither prosecuted nor threatened with prosecution… . In American jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.").
76
See Manikis, supra note 66.
77
See Jacoby, supra note 70, at 5-7; Jack M. Kress, Progress and Prosecution, 423 Annals Am. Acad. Pol. & Soc. Sci. 99, 100 (1976); Allen
Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 Crime
& Delinq. 568, 571-72 (1984) (finding that private prosecutions predominated in the colonies). In 1704, Connecticut established what was
probably the first public prosecutor's office. See Jacoby, supra note 70, at 17; Kress, supra, at 103. When Blackstone described criminal law
as predominantly directed at public wrongs, he did so in the context of a late eighteenth century justice system in which private prosecutions
were common. See 4 William Blackstone, Commentaries on the Laws of England: Book the Fourth 5-6 (1795).
78
See Jacoby, supra note 70, at 23 (concluding that after 1789 "for the first half-century at least" the public prosecutor was "clearly a minor
actor in the court's structure" with a more judicial than executive role); Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive
Function? Morrison v. Olson and the Framers' Intent, 99 Yale L.J. 1069, 1073 (1990) ("First, colonial attorneys general and district attorneys
performed non-prosecutorial tasks … ." ); see also Steinberg, supra note 77, at 577 (noting public prosecutor's duties included responsibility
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[*878]
3. Federal Oversight of Declination Decisions
In the United States, only the federal justice system provides for a process of administrative review somewhat comparable to
those in E.U. member states. Federal law grants victims a right to seek review of prosecutors' decisions within the Department
of Justice hierarchy, although it also explicitly bars judicial review of Justice Department decisions in this process. 114
Although decision makers in an internal review process have less institutional independence from those they review than do
judges engaged in judicial review, they also have a comparative advantage in institutional expertise, which could translate into
less deference to, and more meaningful oversight of, front-line prosecutors.
In addition, federal law guarantees victims "the reasonable right to confer with the attorney for the Government in the case."
115 The Department of Justice interprets this not to create a right to confer before charges are filed, reasoning that no "case"
exists until charges are filed. 116 Some lower courts have interpreted the statute differently, however, and concluded that it
[*879] creates an enforceable right for victims to confer with prosecutors before, and about, the charging decision. One held
that prosecutors cannot enter a non-prosecution agreement with a suspect until they confer with victims, and that if they fail to
do so the court can order prosecutors to re-open the non-prosecution agreement. 117 A few other lower federal courts have
reached similar conclusions, 118 although at least two have opposing conclusions. 119
Even in its stronger form, this is a limited entitlement, in effect, to an opportunity to try to influence charging decisions. Even
the most aggressive federal courts on this point do not examine prosecutors' good faith during consultations or their reasons for
disagreeing with victims. In sum, neither the consultation right nor the right to review by Justice Department supervisors
infringes federal prosecutors' monopoly power over charging from judicial oversight.
for the court calendar). England had no full-scale prosecution agency until the creation of the Crown Prosecution Service in the Prosecution
of Offences Act 1985. See Prosecution of Offences Act 1985, c. 23. The Director of Public Prosecutions office was established in 1879, but it
supplemented rather than displaced private prosecution. See Glanville Williams, The Power to Prosecute, Crim. L. Rev. 596, 601-03 (1955)
(noting 1879 creation of Director of Public Prosecutions and describing police as de facto public prosecutors).
79
See Parrillo, supra note 58.
80
Professional police forces did not arise until the 1850s, so victims investigated crimes and arrested offenders. See Peggy M. Tobolowsky,
Victim Participation in the Criminal Justice Process: Fifteen Years After the President's Task Force on Victims of Crime, 25 New Eng. J.
Crim. & Civ. Confinement 21, 25 (1999) (explaining that, to arrest offenders, victims could enlist the "aid of the local watchman, justice of
the peace, or constable for whose assistance the victim paid").
81
See, e.g., Mike McConville & Chester Mirsky, Jury Trials and Plea Bargaining: A True History 25-42 (2005) (describing early systems in
New York of judicial or gubernatorial appointment of prosecutors, until the office first became elective in 1847); Allen Steinberg, The
Transformation of Criminal Justice: Philadelphia, 1800-1880, at 152-58 (1989) (stating that Philadelphia first elected its district attorney in
1850). Prosecutors as well as judges became elected positions in many states as part of a wave of state constitutional reform in the midnineteenth
century. See, e.g., Ind. Const. art. 7, § 11 (1851); Md. Const. art. 5 (1851); see also id. art. 3 (forbidding creation of state attorney
general office); Mich. Const. arts. 8, 10 (1850); N.Y. Const. art. 10 (1846); N.C. Const. art. 4, § 29 (1868); Va. Const. art. 6,§§6, 8, 30
(1851).
82
See Jacoby, supra note 70, at 6 (arguing that American prosecutors evolved from weak to strong figures largely because they were
popularly elected and tied to local government organization). Public and private prosecutors coexisted for a few decades in some places. See
Cantrell v. Commonwealth, 329 S.E.2d 22, 25 (Va. 1985) (describing the history of private prosecution in Virginia); State v. Stein, 30 S.C.L.
(1 Rich.) 189, 190 (S.C. 1845) (affirming that private individuals may file criminal or civil actions for the same offense but must elect the
form before trial); Corley v. Williams, 17 S.C.L. (1 Bail.) 588, 588-89 (S.C. 1830) (providing an example of private prosecution).
Pennsylvania and New York relied heavily on private prosecutors for criminal law enforcement before 1850. See Stewart v. Sonneborn, 98
U.S. 187, 198 (1879) (Bradley, J., dissenting) ("Every man in the community, if he has probable cause for prosecuting another, has a perfect
right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his
suit."); McConville & Mirsky, supra note 81 (describing New York courts with private prosecutors and, prior to 1847, judicial or
gubernatorial appointments of public prosecutors); Steinberg, supra note 81, at 24-69, 152-57 (describing private prosecutions, screened by
aldermen acting as magistrates, and creation of elected district attorney's office in 1852).
83
Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century United States, 39 Am. J. Legal Hist. 43, 44-45
(1995) (recounting numerous comments by state supreme courts on the low quality and inadequate funding of public prosecutor offices).
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[*880]
4. Oversight of Declination Decisions in State Justice Systems
State justice systems do not go as far as the federal system does, much less provide the kind of oversight or victim recourse
that European systems now offer. And this is so despite the fact that all states have adopted substantial victims' bills of rights,
nearly all of which include rights for victims to consult with prosecutors. Most make clear that the consultation right attaches
only after the prosecutor decides to file charges. 120 Rights of administrative review are rare. 121 One reason for that is surely
structural. The U.S. Department of Justice is a hierarchically organized agency within which all federal prosecutors operate, a
structure that enables supervisory and quasi-independent review within the agency. But few states follow that model. Instead,
prosecutors in most states are locally elected and operate [*881] autonomously from state justice departments or attorneys
general, which generally exercise little, if any, oversight. 122 Administrative review of state prosecutors' charging decisions is
simply not feasible without major reorganization of state justice systems.
That structural barrier probably explains why state prosecutors' decisions are functionally immune to administrative oversight,
but the lack of judicial oversight has a different origin. In accord with common law tradition, state and federal courts have
never meaningfully reviewed public prosecutors' noncharging decisions. 123 In particular, they have unambiguously rejected
victims' claims of standing to challenge those decisions. 124 A few [*882] limited exceptions prove the rule. In cases of
private criminal complaints filed by alleged victims, Colorado, Michigan, Nebraska, and Pennsylvania authorize judges to
review public prosecutors' decisions not to charge. 125 Even when statutes grant courts the power to review (or even mandate
review) of charging and dismissal decisions, state judges consistently have refused to scrutinize the merits of prosecutors'
judgments. Many states have replaced the common law rule that gave prosecutors complete discretion to nolle prosequi (or
dismiss) any criminal charge with statutes that require judges to confirm that non-prosecution is in the interest of justice. 126
Yet courts uniformly refuse to engage in meaningful review, inferring instead that those statutes require deference to
prosecutors. 127
84
See Erikson v. Pawnee Cty. Bd. of Cty. Comm'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (finding no due process violation because private
attorney assisting prosecution did not "control[] critical prosecutorial decisions"). The first states to prohibit privately funded prosecutors
even under supervision of public prosecutors were Massachusetts, Michigan, and Wisconsin. See Commonwealth v. Gibbs, 70 Mass. (4 Gray)
146, 147-48 (1855); Meister v. People, 31 Mich. 99, 104-06 (1875); Biemel v. State, 37 N.W. 244, 248-49 (Wis. 1888). See also Ireland,
supra note 83, at 49 (listing fifteen states that still approved privately funded prosecutors in 1900). Other states abolished this practice more
recently. See State ex rel. Wild v. Otis, 257 N.W.2d 361, 365 (Minn. 1977) (holding that party has no right of private prosecution); State v.
Harrington, 534 S.W.2d 44, 48 (Mo. 1976) (holding that a right of private prosecution should not be permitted); People v. Calderone, 573
N.Y.S.2d 1005, 1007 (N.Y. City Crim. Ct. 1991) (concluding that under New York law private prosecutions by interested parties or their
attorneys present inherent conflicts of interest which violate defendants' due process rights); State v. Best, 186 S.E.2d 1, 4 (N.C. 1972) (noting
that a public prosecutor must be in charge of all prosecutions).
85
See, e.g., N.J. Ct. R. 3:23-9 (permitting private prosecutor with approval of the public prosecutor and court); N.J. Ct. R. 7:8-7(b)
(permitting private prosecutor for cross-complaints with court approval); State v. Harton, 296 S.E.2d 112, 113 (Ga. 1982) (private party not
allowed to prosecute without state approval); State v. Moose, 313 S.E.2d 507, 512-13 (N.C. 1984) (stating that private attorneys may assist
public solicitors where public solicitors retain control and management of prosecution); Cantrell, 329 S.E.2d at 25 (stating that private
attorneys may assist commonwealth attorneys with the permission of the prosecutor and the court); 63C Am. Jur. 2d Prosecuting Attorneys §
12 (2018) (citing authority in some states that private attorneys may assist public prosecutors). For a state statute that apparently gives the
"prosecuting witness" a right to pay a private attorney to assist the public prosecutor without the latter's consent, see Kan. Stat. Ann. § 19-717
(2017); see also John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 529, nn.71-72
(1994) (citing cases in majority of states allowing private prosecutors to assist in public prosecutions). Bessler identifies three states that
"allow private prosecutors to participate without the consent or supervision of the district attorney," but in all three states, the public
prosecutor initiated and litigated the criminal charge, while the private prosecutor assisted in the litigation as counsel to a victim. Id. at 529,
n.71.
86
234 Pa. Code § 506 (2001); In re Private Criminal Complaints of Rafferty, 969 A.2d 578, 582 (Pa. 2009) (discussing the ability of a
prosecutor to approve or disapprove of private complaints). Judges may authorize private counsel to take over as prosecutor upon finding that
a district attorney has "neglected or refuseed to prosecute" a properly grounded charge. See 16 Pa. Stat. and Cons. Stat. Ann. § 1409 (West
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[*883] This is a stark contrast with European justice systems, but U.S. jurisdictions are not alone in shielding prosecution
decisions from judicial oversight. Aside from England and Wales, courts in other common law jurisdictions - notably Canada
and Australia - take roughly the same approach and defer to prosecutorial charging discretion. 128
5. Summary of Declination Oversight
Both private prosecution and review procedures provide a kind of redundancy that checks prosecutorial declination decisions,
and both can do so in service of public interests as well as victims' private interests. Both options have some capacity to
challenge prosecutorial judgments affected by political or personal biases, institutional allegiances (especially between police
and local politicians), or other illicit sources of favor or disfavor. As one commentator put it in the English context, private
prosecution authority recognizes that victims possess some capacity to be independent "assessors of the evidence as well as the
public interest." 129 Review procedures enable judges and supervisory [*884] officials to do much the same thing, without the
cost barriers for victims posed by private prosecutions. (Although it may well be that poorer victims are less likely even to
petition for review, especially if they lack legal counsel to press their review requests.)
Why, then, have U.S. jurisdictions so uniformly rejected both options? As noted, both racial politics and the power of common
law tradition are probable contributing reasons. 130 Another is the singular choice of most state justice systems to make
prosecutors locally elected officials, which does much to prevent kinds of over-and underenforcement disfavored by local
majorities. That, in turn, likely reduces pressure for reforms that would improve other safeguards against decisions not to
prosecute - especially decisions that cut against popular local preferences, which in many communities include rigorous
2016) (authorizing victims dissatisfied with public prosecutor to petition the court and granting courts the power to allow victim's attorney to
take over as private prosecutor).
87
See 12 R.I. Gen. Laws§§12-4-1, 12-4-2, 12-4-6, 12-12-1.3 (2017); Cronan ex rel. State v. Cronan, 774 A.2d 866, 871 (R.I. 2001)
(approving private misdemeanor prosecution for assault under state statutes).
88
See State v. Martineau, 808 A.2d 51, 54 (N.H. 2002); see also State by Tucker v. Gratta, 133 A.2d 482, 482 (N.H. 1957) (holding that state
prosecutors retain power to dismiss private criminal complaints).
89
See, e.g., N.C. Gen. Stat.§§15A-303, 304 (2016); Moose, 313 S.E.2d at 512-13 (requiring that the public prosecutor remain in continuous
control of the case). Scattered marginal remnants of private enforcement may remain elsewhere, such as an Oklahoma statute providing that
prosecutions for adultery (a felony) may be "commenced and carried on against either of the parties to the crime only by his or her own
husband or wife." Okla. Stat. tit. 21 § 871 (2017) ("Prosecution for adultery can be commenced and carried on against either of the parties to
the crime only by his or her own husband or wife as the case may be, or by the husband or wife of the other party to the crime.").
90
The Royal Commission on Criminal Procedure, 1981, Cmnd. 8092, P 7.47 (UK); see also Gouriet v. Union of Post Office Workers [1978]
AC (HL) 435 at 477 (Eng. and Wales) (private prosecutions are a "valuable constitutional safeguard against inertia or partiality on the part of
the authority"); cf. Manikis, supra note 66, at 67, 71 (describing review as a means to correct prosecution errors).
91
In re Hickson, 2000 PA Super 402, PP 22, 41; see also In re Piscanio, 344 A.2d 658, 660-61 (Pa. Super. Ct. 1975) ("The judge's
independent review of the complaint checks and balances the district attorney's decision and further hedges against possibility of error.").
92
United States v. Armstrong, 517 U.S. 456, 461-64 (1996).
93