Arguments for strengthening the doctrine to make claims easier to pursue are common. See, e.g., Richard H. McAdams, Race and
Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 606 (1998) (discussing use of the equal protection
doctrine but challenging current precedent).
94
Grand juries remain a fixture in the federal system and in roughly half the states. See Sara Sun Beale et al., Grand Jury Law and Practice §
1:5 (2d ed. 2017) (describing grand jury status and rules in states and noting states that have partially or wholly abolished grand juries);
Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 274-75 (1995) (noting difficulty of
getting data on grand jury screening and offering reasons why grand juries rarely reject requests for indictments). To extend the comparison,
public officials (judges) have a long track record of doing the same task that trial and grand juries do. That available substitute did not lead to
calls for juries' abolition. Yet the availability of public prosecutors as replacements led to the U.S. jurisdictions to abolish private prosecutors.
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prosecution of excessive police uses of force. Finally, another institution responds to some of the same underenforcement
problems that private prosecution and judicial review could address - redundant prosecution authority in a federal system.
C. Federalism Safeguards on Prosecutorial Discretion
The scope of the U.S. federal criminal code expanded vastly in the twentieth century, as did the federal government's
institutional capacity to enforce that code and its regulatory authority more generally. The result has been a distinctive form of
criminal justice federalism: federal enforcement authority wholly overlaps the territorial scope of state criminal law, and the
federal code substantially overlaps much of what is covered in state criminal codes. The resulting structure of redundant
federal-state authority has evolved into a means - unusual even among federal nation-states - to second-guess and effectively
trump state prosecutors' declination decisions without empowering courts or private parties.
No other nation built on a federal model incorporates nearly [*885] the same degree of redundancy between state and federal
justice systems. 131 The more common model of criminal justice federalism is found in Canada and Germany: each has a
single national criminal code that is administered by separate state-level prosecution agencies and court systems. 132 Other
federal states follow the U.S. model and have separate criminal codes, prosecution agencies, and court systems in each state as
well as for the federal government. Australia follows this model, but the scope and jurisdiction of Australian federal criminal
law is much more limited than is U.S. federal law; federal crimes are largely confined to offenses that implicate distinct federal
interests - it is probably closer to U.S. federal criminal law in 1910 than 2010. The result is that in Australia federal criminal
law enforcement overlaps much less with state criminal law. 133
The broad redundancy provided by U.S. federalism enables federal prosecutors to serve as checks on underenforcement by
state prosecutors, at least for some large and important categories [*886] of crime. In effect, federal prosecutors can review
the declination decisions of state prosecutors - as well as the adequacy and success of their prosecutions - and then decide
whether to file federal charges in cases that their state counterparts declined to pursue, charged too leniently, or in which they
failed to win a conviction or sufficiently harsh sanctions. (In theory state prosecutors conduct the same oversight over much of
95
See George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 671-96 (1997) (discussing the impact of racial policies in post-Civil
War jury and court processes).
96
I am aware of no historical research on African American private prosecutors, and I have found no evidence of any in case law or general
accounts of private prosecutions.
97
See, e.g., Fisher, supra note 95, at 684 n.514 ("Denial to the freedman of the power to testify in court against the white man … strikes not
at a mere civil franchise, but at a natural right - the right of protecting life and property. When a white man may take a freedman's life or
property with impunity, if no other white men be present, the freedman has no security for either." (quoting The Progress of Reconstruction,
N.Y. Times, Oct. 3, 1865, at 4)).
98
When Southern states were compelled to grant African American citizens litigation rights, they imposed strict conditions, permitting
African Americans the right to testify only when the crime victim (or the opposing civil litigant) was African American. Id. at 684. Those
limitations likewise restricted African Americans' private prosecution authority, although in many places racial customs, backed by the
prospect of racial violence, was probably discouragement enough. See generally Douglas A. Blackmon, Slavery by Another Name: The Re-
Enslavement of Black Americans from the Civil War to World War II (2008) (discussing history of African Americans' distrust of America's
judicial system); Nicholas Lemann, Redemption: The Last Battle of the Civil War (2007) (exploring incidents after the Civil War and the
impact on politics during the Reconstruction Era).
99
Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 49-51 (2004). Northern
states were not models of race-blind democracy. Connecticut voters in 1865 rejected a proposal to enfranchise African American citizens in
their state. Fisher, supra note 95, at 685.
100
See Council Directive 2012/29, art. 11, 2012 O.J. (L 315) 57 (EC) (EU), http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:32012L0029
(requiring member states to give crime victims means to challenge non-prosecution decisions,
either through private prosecution or a right to review).
101
See FRA Report, supra note 72 (summarizing policies of EU member states and noting that only Cyprus and Malta provide victims
neither right).
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federal enforcement practice, but this is less common.) 134 State prosecutors' decisions, at least for certain categories of serious
wrongdoing, face de facto review by federal executive officials.
Or so the law for a century has permitted. The constitutional double jeopardy doctrine since at least 1922 has recognized the
"dual sovereignty" of state and federal governments. Notwithstanding the guarantee that no person shall "be subject for the
same offence to be twice put in jeopardy," the Double Jeopardy Clause has been understood not to preclude federal prosecutors'
power to charge a person who has previously been prosecuted by state officials for the same criminal conduct, and federal
prosecutions likewise do not limit subsequent state enforcement efforts. 135 By granting certiorari in United States v. Gamble
this term, 136 the U.S. Supreme Court is set to revisit this doctrine, which provides the foundation for the federalism-based
check on underenforcement.
Federal prosecutors do not attempt to keep an eye on all state prosecution decisions and practices, and federal criminal [*887]
law is not fully coextensive with state criminal law; significant gaps are discussed in the next Part. But the substantive
redundancy is considerable. For some areas of dual authority - such as drug crimes, fraud, child pornography, and human
trafficking - federal and state agencies often coordinate investigative efforts and divide up prosecution responsibilities. But
federal Justice Department policy to exercise oversight of state enforcement practices in certain categories of crime is
deliberate and formalized. Notable examples include state and local government corruption, excessive use of force and other
wrongdoing by police, and other criminal civil rights violations. 137 Especially in these areas, federal prosecutors assess
whether to file their own charges in cases in which their state counterparts declined to charge, charged too leniently, or in
which they failed to win appropriate convictions. Federal prosecution in the wake of state declination is hardly the norm - it
should not be, if state prosecutors decline cases for the right reasons 138 - but federal officials do remedy meaningful
enforcement gaps left by state prosecutors. 139
Functionally, this inter-governmental model of review resembles intra-agency administrative review with greater independence
between initial decision makers and subsequent reviewers. Oversight of state prosecutors rests with the policy [*888]
priorities of federal executive branch officials. The Justice Department has well-established written guidelines for much of this
oversight activity, although they are not formally binding. 140 Although the Justice Department bureaucracy has a stronger
102
On Scotland, see Victims and Witnesses (Scotland) Act 2014, (ASP 1) § 4 ("The Lord Advocate must make and publish rules about the
process for reviewing, on the request of a person who is or appears to be a victim in relation to an offence, a decision of the prosecutor not to
prosecute a person for the offence."); Crown Office & Procurator Fiscal Serv., Lord Advocate's Rules: Review of a Decision Not to Prosecute
- Section 4 of the Victims and Witnesses (Scotland) Act 2014, at 5 (2015),
http://www.copfs.gov.uk/images/Documents/Victims_and_Witnesses/Lord%20Avocates%20Rules%20-% 20June%2015%20v2.pdf. On
France, see Novokmet, supra note 70, at 101-02. In addition to judicial review, England also provides administrative review. See Dir. of Pub.
Prosecutions, Victims' Right to Review Guidance 6-9 (2016), https://www.cps.gov.uk/sites/default/files/documents/publications/vrr_
guidance_2016.pdf (noting that victims may seek administrative review of decisions not to prosecute, which are checked in a local CPS office
by a prosecutor who has not been involved with the case previously, then at the victim's request in a review by the Appeals and Review Unit);
Victims' Right to Review Scheme, Crown Prosecution Serv., https://www.cps. gov.uk/legal-guidance/victims -right-review-scheme (last
updated July 2016). Decisions are reviewed as questions of law - that is, whether they are correct as a matter of law, even if reasonable.R v.
Killick [2011] EWCA (Crim) 1608, [2012] 1 Crim. App. 10 [48] (recognizing victim right to review under EU Directive art. 10, and noting
original prosecution decision was reasonable but wrong); see also Keir Starmer, Human Rights, Victims and the Prosecution of Crime in the
21st Century, Crim. L. Rev. 777, 783-84 (2014) (describing aims of review policy).
103
See Carlin v. Dir. of Pub. Prosecutions [2010] IESC 14, 3 IR 547, at P 12 (Ir.) ("If … it can be demonstrated that [the DPP] reaches a
decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I
reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a
court." (quoting State (McCormack) v. Curran, [1987] ILRM 225, 237 (Ir.))); Office of the Dir. of Pub. Prosecutions, The Role of the DPP 16
(2015), https://www.dppireland.ie/filestore/documents/victims_ directive_publications/ENGLISH_-_Role_of_the_DPP.pdf (noting crime
victims, among others, can seek DPP review of prosecutors' decisions). On Northern Ireland, see Pub. Prosecution Serv. for N. Ir., Victims of
Crime: Requesting a Review of a Decision Not to Prosecute 2-4 (2017),
https://www.ppsni.gov.uk/Branches/PPSNI/PPSNI/Files/Documents/Rquests%20For%
20Review/Victims%20of%20Crime%20-
%20Requesting%20a%20Review% 20of%20a%20Decision%20not%20to%20Prosecute%20(October%202017 ).pdf.
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institutional culture of professionalism than many state prosecutor offices, departmental policies and priorities can change
substantially with presidential administrations - as they have recently. 141 Nonetheless, this federalism-based model of
prosecutorial oversight has an advantage shared by the administrative review schemes within single prosecution agencies. In
both settings, those with review power are prosecutors who should have greater institutional competence and legitimacy to
second-guess other prosecutors' charging decisions, and consequently less inclination than courts to defer to prosecutorial
judgments.
This federalist model of enforcement redundancy did not evolve from earlier common law institutional arrangements, like
private prosecution, nor from the modern victims' rights movement, like judicial and administrative review of decisions not to
prosecute. Federal criminal law enforcement expanded for several reasons, but behind many of those reasons is a common
purpose: to remedy glaring patterns of underenforcement by the states. For example, federal law and institutional capacity
(such as the advent of the Federal Bureau of Investigation) expanded in response to states' inability to confront adequately the
rise of interstate violence and drug crimes (as well as, for a time, prohibition on alcohol manufacture and distribution). 142
Federal law [*889] took on the primary role in combatting local government corruption - including police corruption and
excessive uses of force - which local prosecution agencies often lacked the ability, or political independence, to confront. 143
And federal law has long attempted to fill the gap when racially biased local police, prosecutors, and juries declined to arrest,
prosecute, or convict suspects - especially white ones - who victimized black citizens. 144 In sum, the redundant enforcement
104
Strafprozebetaordnung [StPO] [Code of Criminal Procedure], §§152, 160, 170, translation at https://www.gesetze-iminternet.de/englisch_
stpo/englisch_stpo.html (Ger.) (defining prosecution duty to investigate suspected crime and indict when evidence is
sufficient); id. §§171-75 (providing for judicial orders to prosecute, including victim's right to seek order compelling prosecution);
Bohlander, supra note 72, at 25-27, 67-71, 103-04 (describing German procedures to compel prosecutions under statutory legality principle);
Novokmet, supra note 70, at 92-93. Failures to charge when required to do so can expose a prosecutor to discipline or even criminal liability.
See Strafgesetzbuch [StGB] [Penal Code], § 339, translation at https://www .gesetze-im-internet.de/englisch_stgb/englisch_stgb.html (Ger.)
(establishing that rechtsbeugung, or perversion of justice, is punishable by one to five years in prison); id.§§258, 258a (establishing
punishment for police or prosecutor's failure to investigate or prosecute colorable offenses).
105
See Shawn Marie Boyne, The German Prosecution Service: Guardians of the Law? 8-10, 91-92 (2014) (quoting Hans-Heinrich Jescheck,
The Discretionary Powers of the Prosecuting Attorney in West Germany, 18 Am. J. Comp. L. 508, 511 (1970)); Markus D. Dubber, Criminal
Process in the Dual Penal State: A Comparative-Historical Analysis, in Oxford Handbook of Criminal Process, supra note 60; see also Klaus
Sessar, Prosecutorial Discretion in Germany, in The Prosecutor 255, 272-73 (William F. McDonald ed., 1979). For the German example of
this principle, see Strafprozebetaordnung [StPO] [Code of Criminal Procedure],§§152, 160, 170, translation at https://www.gesetze-iminternet.de/englisch_stpo/englisch_stpo.html
(Ger.) (defining prosecution duty to investigate suspected crime and indict when evidence is
sufficient).
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authority developed as part of the modern model U.S. federalism has much in common, in functional terms, with private
prosecution and review of prosecutorial declination decisions. All are mechanisms to guard against unjustified nonenforcement,
or underenforcement, by jurisdictions' primary prosecution agencies. The next Part examines the relative strengths of these
alternatives.
III. PROS AND CONS OF FEDERALISM-BASED ENFORCEMENT REDUNDANCY
A. Comparative Limits of Enforcement-Oversight Strategies
Each of the institutional approaches to reducing underenforcement of criminal law by public prosecutors has comparative
strengths and weaknesses. All three share the common virtue of being a means to reduce instances of bias, favoritism, or other
misjudgments that result in unjustified nonenforcement. All three enable outside reevaluation of declination decisions. Private
prosecution empowers motivated private parties - crime victims - to initiate the challenge to a public prosecutor's decision not
to charge by filing charges themselves. The same is true in jurisdictions that subject declination decisions to formal
administrative or judicial review; victims trigger that process by petitioning for an independent evaluation. Both of those
practices harness the motivations of interested private parties to, in effect, screen which declination decisions should be subject
to reassessment, although private prosecution poses a significant cost barrier for victims who want to take advantage of it. At
the same time, both of these practices give public officials the final [*890] word on whether a prosecution (public or private)
will proceed.
The federalism route to prosecutorial oversight, by contrast, gives private parties no formal role, although victims can file
complaints and lobby federal prosecutors just as they can with local police and prosecutors for any alleged crime. Put
differently, federal prosecution as check on state underenforcement rests more directly on the initiative, diligence, and
judgment of federal prosecutors than private victims. In some areas, federal commitment is significant. 145 But it also varies
with the policy priorities of presidential administrations, which can vary considerably in their commitment to fighting certain
kinds of crimes and to federal oversight of state criminal justice administration. 146
106
The U.K. is scheduled to leave the European Union in 2019. See Alex Hunt & Brian Wheeler, Brexit: All You Need to Know About the
U.K. Leaving the E.U., BBC (Sept. 13, 2018), https ://www.bbc.co.uk/news/uk-politics-32810887.
107
R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [20] (Eng. and Wales).
108
See Victims' Right to Review Data, CPS, http://www.cps.gov.uk/victims_ witnesses/victims_right_to_review/vrr_data/index.html (last
updated June 2017) (noting that 6.8% of appeals (137 out of 1988) succeeded in 2016-17; thirteen percent of appeals (210 out of 1674)
succeeded in 2014-15). The percentage of prosecution decisions challenged in this way has been well below one percent - 0.13% in 2016-17,
and 0.17% in 2014-15 - which suggests the administrative burden is manageable. See id.
109
See Balderstone v. R (1983), 23 Man. R. (2d) 125, at para. 28 (Can. Man. C.A.) ("If a judge should attempt to review the actions or
conduct of the Attorney-General - barring flagrant impropriety - he could be falling into a field which is not his and interfering with the
administrative and accusatorial function of the Attorney-General or his officers. That a judge must not do.").
110
Decisions to discontinue a prosecution after charging get similar scrutiny. For an example of a court finding wrongful a decision to
discontinue prosecution, see R (FB) v. DPP [2009] EWHC (Admin.) 106, [2009] Crim. App. 38, at P 70 (Eng. and Wales). On prosecutor's
nolle pros authority, see R v. B(F) [2010] EWCA (Crim.) 1857, [2010] 2 Crim. App. 35, at P13 (Eng.); R (Gujra) v. CPS [2013] AC 484, at
484 (Eng. and Wales). See also R v. DPP [1995] (QB) 1 Crim. App. 136, at 145 (Eng.).
111
For leading decisions on the issue, see R v. DPP [2001] QB 330, at 344-48 (Eng. and Wales); R (Da Silva) v. DPP [2006] EWHC
(Admin) 3204 [24] (Eng. and Wales); Sharma v. Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780, at 792-96 (appeal taken from Trin.
And Tobogo); Marshall v. DPP [2007] UKPC 4 (appeal taken from Jam.); R v. Metropolitan Police Commr. [1968] 2 QB 118, at 119-20
(Eng.); R v. DPP (Kebiline) [2000] 2 AC 326, at P 2 (Eng.). England created its prosecution agency, the Crown Prosecution Service, only in
1985. See Prosecution Offences Act 1985, c. 23, § 1 (Eng. and Wales); Andrew Ashworth & Mike Redmayne, The Criminal Process 222-23
(4th ed. 2010). The Director of Public Prosecutions was created in 1879 but did not handle most prosecutions until the creation of the Crown
Prosecution Service. In the intervening century, police came to dominate filing of criminal charges, supplemented by private prosecutions, a
system that eventually was viewed as providing insufficient supervision of charging decisions by police. See Williams, supra note 78.
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But that distinction has an upside: private prosecution and judicial review do not work in cases in which there is no direct
victim - or in which private parties do not realize they have been victimized, as in some cases of large-scale corporate or
government fraud, or in some cases of child pornography. 147 Federal prosecutors, however, take on just such cases as a core
part of their enforcement agenda. 148 On the other hand, federal oversight is limited in other important respects: federal
criminal enforcement authority is not fully coextensive with state criminal law; notably, for example, it provides effectively no
enforcement redundancy for ordinary domestic violence, rape, and other sexual assault offenses. 149
[*891]
B. Three Kinds of Offenses: Corruption, Police Violence, Sexual Assault
Consider the efficacy for these oversight options with respect three types of offenses: local fraud or corruption, excessive use
of force and other wrongdoing by local law enforcement officers, and sexual assaults. These three classes of offenses have in
common that they have proven to be especially vulnerable to underenforcement. At the same time, the differences in how U.S.
criminal justice institutions have responded to underenforcement in each area highlight the efficacy and limits of the
federalism-based enforcement redundancy compared to the alternatives - both those U.S. jurisdictions reject (private
prosecution and judicial review) and a fourth, unique strategy they embrace: politically accountable prosecutors.
1. Public Corruption
Corrupt conduct by government officials is a category of wrongdoing especially likely to suffer from underenforcement, for
obvious reasons: we depend on one set of public officials, prosecutors and investigative agents, to stop wrongdoing by other
public officials - as well as by colleagues within their own ranks. Professional and even personal relationships often exist
between these groups of public officials. Even when the boundaries between lawful and unlawful conduct are clear and law
112
R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [24] (Eng. and Wales) (summarizing three grounds for review and citing R v. DPP
[1995] (QB) 1 Crim. App. 136 (Eng.)); R (Guest) v. DPP [2009] EWHC (Admin.) 594, [2009] 2 Crim. App. 26, at P 34 (Eng. and Wales); R
v. General Council of the Bar [1990] 3 All ER 137 (QB), at 137-38 (Eng. and Wales). For an overview, see Ashworth & Redmayne, supra
note 111; Christopher Hilson, Discretion to Prosecute and Judicial Review, Crim. L. Rev. 739 (1993) (examining case law regarding
prosecution decisions and subsequent judicial review); Appeals: Judicial Review of Prosecutorial Decisions, CPS,
https://www.cps.gov.uk/legal-guidance/appeals -judicial-review-prosecutorial-decisions (last updated May 21, 2009). The European
Convention on Human Rights may impose affirmative obligations on member states that certain instances require prosecutions, or that more
generally require a state to maintain a criminal justice system that provides sufficient protection to citizens. English courts found that their
established standards of review of noncharging decisions, based in domestic law, have been held sufficient to meet any such obligation. See R
(FB) v. DPP [2009] EWHC (Admin.) 106,[2009] Crim. App. 38, at P 64 (Eng. and Wales) (discussing state obligations under Articles 2 and
3); see also R v. Killick [2011] EWCA (Crim.) 1608, [2012] 1 Crim. App. 10 at [48] (confirming victims' right to review). Judges may
require disclosure of internal prosecution documents, but they assess the lawfulness of nonprosecution without examining the underlying
evidence. See R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [24] (Eng. and Wales) (noting use of redacted investigative report and case
notes from CPS but disavowing evaluation of evidence).
113
See R v. DPP [2001] QB 330 at 337 (Eng. and Wales); R v. Metro. Police Commr. [1958] 2 QB 118, at 123-25 (Eng. and Wales);
Ashworth & Redmayne, supra note 111, at 221-22. Decisions by U.S. courts give no special solicitude to instances of nonprosecution in the
wake of injuries or deaths caused by prison guards or other law enforcement officials. See, e.g., Leeke v. Timmerman, 454 U.S. 84, 85-87
(1981) (rejecting state prison inmates' federal civil claim alleging bad faith by state officials to block issuance of arrest warrants against
guards on allegations of unnecessary beatings during prison uprising); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382-83
(2d Cir. 1973) (rejecting request, on behalf of inmates injured or killed by state prison guards in the wake of a prison riot, that federal courts
compel state and federal prosecutors to charge guards, reaffirming that prosecutorial discretion is immune to judicial review). To facilitate
review, English prosecutors in some circumstances must provide public reasons for choosing not to file charges. See Jordan v. United
Kingdom (No. 2) [2003] 37 Eur. Ct. H.R. 52 PP 82-86, 122-23, 142-45 (holding that under article 2 of the European Convention on Human
Rights prosecutors should give reasons explaining a decision not to bring criminal charges after an investigation into a death caused by police
shootings); see also R v. DPP [2001] QB 330, at 347 (Lord Bingham, CJ) (Eng. and Wales) ("In the absence of compelling grounds for not
giving reasons, we would expect the Director to give reasons in such a case [of non-prosecution]: to meet the reasonable expectation of
interested parties that either a prosecution will follow or a reasonable explanation for not prosecuting be given … ."); EU Council Directive
2012/29, supra note 100, art. 6, at 67 (requiring explanations to victims that can be subjected to review). Irish victim rights laws that took
effect in 2015 now require prosecutors to provide reasons to victims for declining to prosecute. See Mark Hilliard, New Laws on Rights of
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103 Minn. L. Rev. 844, *891
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enforcement can learn of misconduct done mostly in secret, political or personal incentives for enforcement officials that
discourage zealous enforcement can exist for enforcement officials in the same jurisdiction - perhaps enmeshed in the same
political networks. In short, underenforcement in this realm follows more from favoritism toward offenders than the biases
against victim groups or types of offenses.
"Corruption" is a notoriously hard concept to define, 150 but that difficulty is actually somewhat useful for present purposes.
Some of what constitutes public corruption is relatively clearly [*892] defined in positive law. Easy cases involve
straightforward property theft or embezzlement, quid pro quo bribery, and extortion. 151 Statutes also make clear at least some
cases of illegal gratuities and breaches of regulations that govern activities such as campaign finance. 152 More ambiguous or
marginal cases of alleged corruption, however, illustrate the federal government's ambitious commitment to enforcing broad
interpretations of federal anti-corruption laws to conduct of state and local officials. That enforcement track record
demonstrates the strong commitment to enforcement redundancy in this area.
States have their own regulatory strategies to address government corruption, although independent assessments do not judge
them to be particularly successful. 153 The federal government seems to share that view. The Justice Department created a
Public Integrity Section within the Criminal Division in 1976, 154 and in the four decades since, federal prosecutors have
[*893] aggressively prosecuted conduct of state and local officials that it determines breaches federal anti-corruption statutes.
155 For the past two decades, federal anti-corruption prosecutions of state and local officials typically average 350-400 per year.
156 Combatting "public corruption" is a top priority for the Federal Bureau of Investigation, on par with combating threats of
terrorism, foreign espionage, and cyber-warfare. 157 And many of these prosecutions targeted wrongdoing far removed from
property theft or quid pro quo bribery. 158 They extend to conduct involving undue influence, breaches of fiduciary duty, or
failure to provide citizens with "honest services" 159 - wrongdoing for which the public harm is sometimes hard to identify.
160
[*894] By some accounts, including the U.S. Supreme Court's on occasion, 161 this enforcement agenda has been overly
aggressive. 162 But Congress has generally encouraged far-reaching federal enforcement, notably by expanding the scope of
federal anti-corruption law in response to narrow judicial interpretation. 163 And the key point here is that the federal executive
Crime Victims are Criticized, Irish Times (Nov. 16, 2015), http://www.irishtimes.com/news/crime-and-law/new-laws-on-rights-of -crimevictims-are-criticised-1.2431095.
By contrast, seeSinger v. United States, 380 U.S. 24, 34-37 (1965) (holding that due to judicial "confidence
in the integrity of the federal prosecutor," U.S. attorneys need not give reasons for refusing to consent to defendant's waiver of jury trial). For
rare examples of U.S. rules requiring prosecutors to give reasons for not charging, see Colo. Rev. Stat. § 16-5-209 (2014) (requiring
prosecutor's reasons upon private complaint objecting to non-prosecution); Pa. R. Crim. P. 506.
114
Review within the U.S. Justice Department hierarchy is mandated by 18 U.S.C. § 3771(f) (2016); see also id. § 3771(f)(2)(D) (protecting
Justice Department decisions from judicial review).
115
See 18 U.S.C. § 3771(a)(5).
116
The Availability of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004, 35 Op. O.L.C. 8 (2010). For a vigorous
argument against the OLC position, see Paul Cassell et al., Crime Victims' Rights During Criminal Investigations? Applying the Crime
Victims' Rights Act Before Criminal Charges Are Filed, 104 J. Crim. L. & Criminology 59, 61-63 (2014) (arguing for victims' right to confer
and that the right to fair treatment extends to pre-charging stage).
117
Doe v. United States, 950 F. Supp. 2d 1262, 1267-68 (S.D. Fla. 2013) (re-opening and setting aside a pre-charge non-prosecution
agreement between prosecutors and defense because prosecutor had not consulted with victim in violation of 18 U.S.C. § 3771).
118
See In re Dean, 527 F.3d 391, 395 (5th Cir. 2008) (acknowledging lower court's interpretation of § 3771(a) before any prosecution is
underway); Does v. United States, 817 F. Supp. 2d 1337, 1342-45 (S.D. Fla. 2011) (recognizing that 18 U.S.C. § 3771(a) can apply before
formal charges are filed); Jordan v. Dep't of Justice, 173 F. Supp. 3d 44, 52 (S.D.N.Y. 2016) (citing In re Dean, 527 F.3d at 395); United
States v. BP Prod. N. Am., Inc., No. H-07-434, 2008 WL 501321, at 11 (S.D. Tex. Feb. 21, 2008) (discussing 18 U.S.C. § 3771 and a broad
duty to confer before charges are filed). Another district court refused prosecutors' request to dismiss charges before the prosecutor consulted
the victim. United States v. Heaton 458 F. Supp. 2d 1271, 1272 (D. Utah 2006) (citing victim's right under 18 U.S.C. § 3771(a)(8) "to be
treated with fairness and with respect for [her] dignity and privacy").
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branch is firmly committed to a robust enforcement policy against local government corruption that is also criminalized under
state law, and Congress has supported this agenda by enacting federal crimes intended to duplicate, or greatly overlap, state
offenses. 164 In fact, federal statutes used in anti-corruption cases - [*895] like other federal criminal statutes - rely on and
incorporate state law in federal offense definitions. In light of this structure, federal prosecutions can claim to effectuate state
law goals - an especially straightforward version of federalism-based enforcement redundancy. 165
2. Sexual Assault
In sharp contrast to public corruption, enforcement redundancy through coextensive jurisdiction is largely nonexistent for a
large portion of the serious crimes that dominate state felony dockets, including sexual assaults, domestic violence, and
homicide. 166 Federal law reaches only a small number of these offenses when they intersect a special basis for federal
jurisdiction, such as interstate conduct - like human trafficking - or wrongs that occur on federal property or involve federal
employees. 167 For most kinds of homicides, the lack of redundancy is only a modest hindrance to adequate enforcement;
holding aside distinctive exceptions - such as homicides by police or racially motivated lynchings - there is little evidence to
suggest patterns of homicide underenforcement in state justice systems. 168 Domestic violence and sexual assaults are a
different story. Like local public corruption, sexual assaults have long been a key example of [*896] serious wrongdoing to
which the responses of state and local criminal justice agencies have been deeply problematic. 169
Underenforcement is hard to measure for sexual assaults as it is in other contexts, but central features of the problem are clear
enough. Rape and other forms of sexual assault are dramatically underreported crimes. 170 The leading government effort to
collect data on sexual assaults (and other crimes), the National Crime Victimization Survey, is widely thought to undercount
incidents of those offenses. 171 And rates of victim reports to police departments are even lower. The FBI Uniform Crime
Reports collects data on sexual assaults reported to local police agencies; the number is consistently well below the annual
number reported in the National Crime Victimization Survey. 172
One reason that victims do not to report rapes to law enforcement is the perception that police and prosecutors (as well as
juries) are unduly skeptical of rape allegations. 173 And there is good evidence that law enforcement agencies' responses to
119
See In re Petersen, No. 2:10-CV-298 RM, 2010 WL 5108692, at 2 (N.D. Ind. Dec. 8, 2010) (concluding that prosecutors control charging
decisions and certain victim rights under 18 U.S.C. § 3771(a), including the right ""to confer with the attorney for the Government in the
case,' … arise only after charges have been brought against a defendant and a case has been opened," although a "victim's "right to be treated
with fairness and with respect for [his or her] dignity and privacy,' … may apply before any prosecution is underway" (quoting 18 U.S.C. §
3771(a))); cf. United States v. Rubin, 558 F. Supp. 2d 411, 419 (E.D.N.Y. 2008) (assuming without deciding that some federal victim rights
may apply before any prosecution is under way, but "cannot be read to include the victims of uncharged crimes that the government has not
even contemplated … [or] has not verified to at least an elementary degree").
120
Many state laws grant victims a right to consult only "after the crime against the victim has been charged" or "regarding the charges
filed." Others create only a general right to confer, or "to communicate," "with the prosecution." E.g., Alaska Const. art. I, § 24 (granting "the
right to confer with the prosecution"); Ariz. Const. art. 2, § 2.1(A)(6) (granting the right to "confer with the prosecution, after the crime
against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition"); Cal. Const. art.
I, § 28(b)(6) (granting the right to "reasonably confer with the prosecuting agency, upon request, regarding … the charges filed … ."); Idaho
Const. art. I, § 22(5) (granting the right to "communicate with the prosecution"); Ill. Const. art. I, § 8.1(a)(4) (granting the right to
"communicate with the prosecution"); Ind. Const. art. I, § 13(b) (amended 1996) (granting the right to "confer with the prosecution"); La.
Const. art. I, § 25 (granting the "right to confer with the prosecution prior to final disposition of the case"); Mich. Const. art. I, § 24(1)
(granting the "right to confer with the prosecution"); N.M. Const. art. 2, § 24(A)(6) (granting the "right to confer with the prosecution"); N.C.
Const. art. I, § 37(1)(h) (granting the "right as prescribed by law to confer with the prosecution"); Or. Const. art. I, § 42(1)(f) (granting the
"right to be consulted, upon request, regarding plea negotiations involving any violent felony"); S.C. Const. art. I, § 24(A)(7) (granting the
right to "confer with the prosecution, after the crime against the victim has been charged, before the trial or before any disposition and
informed of the disposition"); Tenn. Const. art. I, § 35(a) (granting the "right to confer with the prosecution"); Tex. Const. art. I, § 30(b)(3)
(granting the "right to confer with a representative of the prosecutor's office"); Va. Const. art. I, § 8-A(7) (granting the "right to confer with
the prosecution"); Wis. Const. art. I, § 9m (granting an "opportunity to confer with the prosecution"); Del. Code Ann. tit. 11, § 9405 (2018);
Ga. Code Ann. § 17-17-11 (2018); Haw. Rev. Stat. § 801D-4(a)(1) (2017) (granting the right of victim to be informed of the final disposition
of the case); Neb. Rev. Stat. 29-120 (2017) (requiring the prosecution to make a good faith effort to consult with victim); N.Y. Exec. Law §
642(1) (LexisNexis 2018) (providing standards for fair treatment of victims); Ohio Rev. Code Ann. § 2930.06(A) (LexisNexis 2018) (stating
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sexual assault reports are ineffective. Police clearance-by-arrest rates are low. 174 Detailed studies of how police departments
handle reported sexual assault cases find "substantial attrition," [*897] typically at the point when police decide whether to
make an arrest. 175 In the Los Angeles Police Department, only one report in nine was cleared by arrest; one in ten resulted in
prosecution. 176 One hurdle lies in forensic evidence development: law enforcement agencies nationwide have suffered long
backlogs in testing rape evidence kits, 177 although federal funding has recently helped reduce that problem. 178
Notoriously, things used to be much worse. Under the common law definition, rape convictions required proof that the offender
used force to overcome the victim's "utmost resistance." 179 Evidence of women's - and only women's - prior sexual conduct or
reputation for "unchastity" was a permissible basis on which to infer consent. 180 The law excluded rape of one's spouse from
[*898] the offense definition. 181 Prosecutors and police were openly skeptical of rape accusations and reluctant to
investigate. 182
Yet much of this legal infrastructure intended to restrict rape law enforcement has been abolished. Rape offenses have been
revised to eliminate resistance requirements, and many states also removed the requirement to prove use of force. 183 Evidence
rules are now more favorable to sexual assault complainants: rape shield laws in all jurisdictions prohibit use of a complainant's
past sexual behavior as character evidence or a basis on which to infer consent, 184 while evidence rules in federal courts and
nineteen states permit evidence of the defendant's past sexual offenses to show propensity to commit sexual assaults. 185 Some
police departments have officers specially trained in sexual assault investigations, and prosecutors' offices (as required by
statute in some states) have specially trained units dedicated to sexual assault prosecutions. 186 Hospitals and [*899] social
service agencies likewise now have staff trained in forensic interviewing and evidence-gathering in the course of aiding assault
victims. 187
that the "prosecutor … shall confer with the victim in the case before pretrial diversion is granted … [or] before amending or dismissing a
charge").
121
No rights of administrative review are specified in the state victims' rights laws cited supra note 120.
122
Five states place all their prosecutors within a single state agency, which at least potentially makes possible hierarchical oversight. In
New Jersey, Connecticut, Rhode Island, Delaware, and Alaska, local prosecutors are appointed by, and under the supervision of, the state
attorney general. See Steven W. Perry, Bureau of Justice Statistics, U.S. Dep't of Justice, Prosecutors in State Courts, 2005, at 2 (2006),
https://www.bjs.gov/content/pub/pdf/psc05.pdf (noting Alaska, Connecticut, and New Jersey do not elect prosecutors; Delaware and Rhode
Island elect attorneys general who appoint all prosecutors; all other states elect prosecutors at the local level). Id. at 11. For an example of a
state attorney general's limited authority over locally elected prosecutors, see, for example,Va. Code § 2.2-511 (2018).
123
Equal protection and due process doctrines nominally empower courts to review charging decisions motivated by racial bias or retaliation
for exercising fundamental rights, and inquiry into selective charging implicitly requires examining biased declinations as well. But these
doctrines are wholly deferential to prosecutorial discretion. See United States v. Armstrong, 517 U.S. 456, 469 (1996) (holding that equal
protection doctrine bars racially biased charging); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (holding that due process bars
charging in retaliation for exercising fundamental rights); see also McCleskey v. Kemp, 481 U.S. 279, 312-314 (1987) (holding that statistical
evidence of bias in death penalty administration insufficient to prove constitutional violation without proving purposeful discrimination in
defendant's case). For a classic account, see Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 188, 207-08 (1969) ("The
affirmative power to prosecute is enormous, but the negative power to withhold prosecution may be even greater, because it is less protected
against abuse… . The plain fact is that nine-tenths of local prosecutors' decisions are supervised or reviewed by no one.").
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This basic overview - drawn from a substantial scholarly literature - paints a somewhat contradictory picture. On the one hand,
the primary story is one of longstanding underenforcement - a combination of explicit legal policies, practical evidencegathering
and proof challenges, and cultural biases resulted in a notoriously weak response to sexual assaults by state criminal
justice systems. On the other hand, there is a story, over the last forty years or so, of wide-ranging success in achieving reforms
on several fronts - substantive and procedural law, institutional design, and resource allocation - designed to improve
enforcement capacity. In other words, U.S. jurisdictions made substantial progress against an ingrained tradition of
underenforcement without turning to any model of enforcement redundancy - federalization, private prosecution, or judicial
review. That is more than state justice systems were ever able to do with regard to local government corruption, where the
remedy instead was the rise of federal criminal law enforcement.
And yet, few seem to consider this reform story a success. 188 The data on underreporting by victims, low arrest rates by
police, and charging rates by prosecutors (along with the rape kit [*900] testing backlog) make it easy to view state criminal
justice systems as failing to achieve adequate enforcement responses to sexual assaults despite the scope and gravity of the
problem - 124,000 offenses reported to police in 2015, and 431,000 assault reports estimated by the National Crime Victim
Survey. 189
This story of reform, its decidedly limited success, and the responses to that record all reveal insights about the prospects for
redressing underenforcement through redundancy in this context. Intersecting feminist, victim rights, and rape-law-reform
movements have achieved some remarkable reforms through the political process over the last four decades. U.S. criminal
justice, like U.S. public law generally, is responsive to popular sentiment, well-organized reform movements, and interest
groups. 190 But these movements never sought any mechanism of enforcement redundancy, and federal and state lawmakers
never seriously considered one. Even now, when offense definitions, victim rights, evidentiary rules, and organizational
changes in law enforcement agencies offer few plausible options for further improvement, there is effectively no sign of
interest in private prosecution and judicial or administrative oversight. Instead, the sole focus of further innovation to address
endemic underenforcement of sexual assault offenses is the federal government. And most federal policy - and policy proposals
- stop short of expanding federal law to cover sexual assaults now within the jurisdiction solely of state courts. 191 A notable
124
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (rejecting private plaintiff's challenge on federal equal protection grounds to state
policy of prosecuting only married men for failures to pay child support, concluding "in American jurisprudence at least, a private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another"); Leeke v. Timmerman, 454 U.S. 83, 84 (1981)
(extending Linda R.S. to hold that private citizens have "no cognizable interest" in process by which magistrates decide whether to issue
warrants on criminal complaints); cf. Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382-83 (2d Cir. 1973) (rejecting purported
crime victims' request that court order prosecutors to charge).
125
See, e.g., Colo. Rev. Stat. § 16-5-209 (2017) ("The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the
judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may
require the prosecuting attorney to appear before the judge and explain the refusal. If … the judge finds that the refusal of the prosecuting
attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an
information and prosecute the case or may appoint a special prosecutor to do so."); Mich. Comp. Laws § 767.41 (2017) ("If, upon
examination, the court is not satisfied with the [prosecution's] statement, the prosecuting attorney shall be directed by the court to file the
proper information and bring the case to trial."); Neb. Rev. Stat. § 29-1606 (2017) ("If, upon such examination, the court shall not be satisfied
with the [prosecution's] statement, the county attorney shall be directed by the court to file the proper information and bring the case to
trial."); Pa. R. Crim. P. 506(B)(2) (requiring prosecutors to give reasons for declining to prosecute a criminal complaint filed by a private
party, and permitting "the affiant [to] petition the court of common pleas for review of the decision"); In re Hickson, 2000 PA Super 402, PP
12-19 (describing victim standing to seek judicial review of decisions not to prosecute based on private complaints); see also State ex rel.
Clyde v. Lauder, 90 N.W. 564, 569 (N.D. 1902) ("The more modern rule, and that adopted in this state, is the reverse of that at common law.
In this state, while the prosecutor may file with the court his reasons for not filing an information … it is the province of the court to
determine the ultimate question whether the case shall be prosecuted or dismissed."); cf. Olsen v. Koppy, 593 N.W.2d 762, 765-67 (N.D.
1999) (citing Lauder, 90 N.W. 564, with approval).
126
See Cal. Penal Code § 1385 (West 2016) ("The judge or magistrate may, either of his or her own motion or upon the application of the
prosecuting attorney, and in the furtherance of justice, order an action to be dismissed."); Darryl K. Brown, Free Market Criminal Justice 35-
37 (2016); Valena E. Beety, Judicial Dismissals in the Interest of Justice, 80 Mo. L. Rev. 629, 640-43 (2015) (advocating for a shift in courtreviewed
dismissals).
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exception is Professor Donald Dripps's current proposal to expand federal criminal law to cover most sexual assault offenses -
precisely the model of federal-state enforcement redundancy that [*901] exists now for drug crimes, corruption, police
violence, and much else. 192 But otherwise, existing policies and reform proposals emphasize more modest, although
meaningful, federal efforts to improve state justice administration through, for example, funding grants (as for rape kit testing)
193 and occasionally by litigation to force institutional reforms in local agencies.
In fact, federal law empowers the U.S. Justice Department to sue local police departments and other agencies, and authorizes
structural injunctions to remedy systemic misconduct. 194 But the Department's use of this authority has largely focused on
police violence rather than sexual assault underenforcement. 195 Various local law enforcement agencies have entered consent
decrees under which they adopt institutional and policy reforms to reduce patterns of misconduct, even though federal
intervention is hampered by the paucity of data on police misconduct, limited federal resources, and at times the political
commitment of the presidential administration. 196 More to the point here, in only a few cases have federal officials targeted
local agencies' inadequate responses to sexual assault. 197
In sum, and in sharp contrast to public corruption, the problem of underenforcement in the sexual assault context reveals the
resistance, and cost, of U.S. criminal justice to institutional structures of enforcement redundancy. Having ruled out judicial
review and private prosecution from the imaginations of reform-movement activists, the only alternative is the one that U.S.
criminal justice always favors - federalism. Where federal criminal law takes on an enforcement agenda, it is usually effective.
198 Where tradition, politics, jurisdictional limits, or policy [*902] choices restrict the reach of federal law, as with sexual
assault, the U.S. justice system is largely out of options. States were willing to change substantive and procedural law in hopes
of improving rape prosecutions, but not to infringe prosecutors' monopoly control of charging by expanding modes of judicial,
administrative, or private-party oversight.
3. Police Violence
127
New York granted courts nolle prosequi authority in 1829, during its era of private and judicially appointed prosecutors. McConville &
Mirsky, supra note 81, at 35 (citing 1829 N.Y. Rev. Stat. tit. IV, § 68, p.730 & § 54. p.726). For a broad overview of state nolle pros laws, see
Annotation, Power of Court to Enter Nolle Prosequi or Dismiss Prosecution, 69 A.L.R. 240 (1930). The federal rule is Fed. R. Crim. P. 48(a).
Note that these rules give judges implicit power to compel prosecutors to litigate charges they would rather dismiss. For decisions insisting on
judicial deference, see, for example, Genesee Prosecutor v. Genesee Circuit Judge, 215 N.W.2d 145, 147-48 (Mich. 1974). For similar
examples in federal cases, see United States v. Smith, 55 F.3d 157, 159-60 (4th Cir. 1995); United States v. Perate, 719 F.2d 706, 710-11
(4th Cir. 1983); United States v. Smith, 853 F. Supp. 179, 183-84 (M.D.N.C. 1994); Dawsey v. Gov't of Virgin Islands, 931 F. Supp. 397,
402-04 (D.V.I. 1996). A standard explanation for deference is that judges lack means to compel prosecutors to litigate charges at trial. See,
e.g., United States v. Greater Blouse, Skirt & Neckwear Contractors Ass'n, 228 F. Supp. 483, 489-90 (S.D.N.Y. 1964) ("Even were leave of
Court to the dismissal of the indictment denied, the Attorney General would still have the right to … , in the exercise of his discretion, decline
to move the case for trial. The Court in that circumstance would be without power to issue a mandamus or other order to compel prosecution
of the indictment, since such a direction would invade the traditional separation of powers doctrine."). But judges have options short of
mandamus. Presumably they could hold prosecutors in contempt for failures to appear, as they could for all other attorneys. And whenever
prosecutors retain an interest charges they seek to dismiss, judges could incentivize them by ruling that failure to litigate charges results (as
for civil parties) in forfeiture of the claim, or dismissal with prejudice.
128
For an overview of Canadian law on this point, see Mark Phillips, The Public Interest Criterion in Prosecutorial Discretion: A Lingering
Source of Flexibility in the Canadian Criminal Process?, 36 Windsor Rev. Legal & Soc. Issues 43 (2015) (describing case law requiring great
judicial deference to prosecutorial discretion). For Australia cases on prosecutorial discretion, see Miller v Commonwealth Dir. of Pub.
Prosecutions [2005] 142 FCR 394, 399-400 (Austl.).
129
Manikis, supra note 60, at 29. In addition, many nineteenth-century state courts justified privately funded prosecutions by citing the
public value of these contributions to supplement underfunded district attorney offices. See Ireland, supra note 83, at 47, 49-51 (citing and
quoting multiple state courts). Private prosecutors may have different reasons to proceed when despite comparatively low odds of winning a
conviction. Some of those motivations, at least, can be public-regarding. Avlana Eisenberg makes the point that prosecuting hate crimes
cases, for example, can have expressive and educative value that justifies pursuing well-grounded cases despite skeptical juries. Eisenberg,
supra note 45, at 893-95, 902-18.
130
For discussions on the common law aversion to private prosecution, see Ireland, supra note 83 and for a review of the impact of racial
tensions on private prosecution, see Blackmon, supra note 98.
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Responses to unjustified police violence reveal a third outcome for enforcement redundancy confined to the federalism model.
Federal enforcement authority extends to cases of police violence to a much greater degree than for sexual assaults. That
authority extends as well to other kinds of bias-motivated wrongdoing by both private actors and government officials, which
local police and prosecutors have at times ignored or devalued, and for which state-level enforcement commitment continues to
be uneven. 199 Federal jurisdiction is coextensive with state jurisdiction regarding police wrongdoing, and the Justice
Department's institutional capacity for enforcement probably exceeds that of its state counterparts, but in one respect the
overlap is not complete. The key substantive criminal offenses available to prosecutors in the federal code are somewhat more
restrictive. The primary federal statute used to charge cases of [*903] police excessive use of force requires proof of willful
deprivation of rights, 200 a strict mens rea standard that makes it harder for federal prosecutors to prove liability than it would
be for state prosecutors relying on typical assault or homicide offense definitions. 201 The fact that Congress has for decades
let stand this mens rea hurdle to excessive-force prosecutions suggests that federal legislators, if not Justice Department
officials, are less committed to a full federal-state enforcement redundancy - or "to altering the federal-state balance in order to
reinforce state law enforcement" - than they are for public corruption offenses. 202
That limit notwithstanding, federal prosecutions in this area have a track record of succeeding where state prosecutions failed
or were never attempted, and in that way providing at least a partial remedy for underenforcement by state criminal justice
officials. Much of the federal advantage comes from the fact that federal prosecutors are, in general, better situated to
objectively investigate, assess, and prosecute wrongdoing by police officers than are local prosecutors who ordinarily interact
with and depend upon those officers (or at least their agencies). This is not a particular criticism of local prosecutors' offices; it
is one instance of the basic problem that officials (and people generally) are untrustworthy judges of the conduct of others with
whom they have affiliations, allegiances, or ongoing relationships. For that reason a few states assign such cases to state-level,
rather than local, officials. 203 And the U.S. Justice Department attempts to collect data on deaths in jails, prison, or during
[*904] attempted arrests, to facilitate Justice Department oversight. 204 The same concerns motivate English laws applying
special judicial scrutiny (when triggered by requests from victims' families) to prosecutor's decisions not to charge in the case
of death caused by law enforcement officials or occurring in official custody. 205
131
Some federal states such as Germany and Canada lack enforcement redundancy because they use a single, nationwide, criminal code,
which is enforced for prosecution agencies and courts organized at the state or provincial level. See generally Eric P. Polten & Eric Glezl,
Federalism in Canada and Germany: Overview and Comparison (2014) (describing similarities in German and Canadian federalism,
including allocating authority over substantive criminal law to the federal government but criminal justice administration to state or
provincial prosecutors and courts). In Australia, like in the United States, states and the federal government each have their own criminal
codes. But Australian federal criminal authority is confined much more narrowly than in the United States to conduct that implicates a
distinct federal interest. See generally Arther B. Gunlicks, The Lander and German Federalism 59, 72, 129 (2003) (describing German
criminal affairs and jurisdictions as compared to the United States); Polten & Glezl, supra, at 5-6, 10, 13-14; Brian Galligan, Comparative
Federalism, in The Oxford Handbook of Political Institutions 261, 266-75 (Sarah A. Binder et al. eds., 2008) (discussing federalism and
judicial review and regulations); Kathleen Daly & Rick Sarre, Criminal Justice System: Aims and Processes, in Crime and Justice: A Guide
to Criminology 357 (Darren Palmer et al. eds., 5th ed. 2017) (examining the processes and purposes of the criminal justice system); Vicki
Waye & Paul Marcus, Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds, Part 2, 18 Tul. J. Int'l
& Comp. L. 335 (2010) (highlighting similarities and differences between the two countries in relation to criminal laws and policies).
132
Since 2011, Switzerland also now has unified national criminal law and procedure codes administered in all cantons. See Anna Petrig,
The Expansion of Swiss Criminal Jurisdiction in Light of International Law, 9 Utrecht L. Rev. 34, 36 (2013).
133
See Director of Public Prosecutions Act 1983 s 10(2); Annual Report 2014-15, supra note 71.
134
In unusual circumstances, two states may also have concurrent jurisdiction over the same crime, enabling one to assess the adequacy of
the other's enforcement effort. For a rare example, see Heath v. Alabama, 474 U.S. 82, 91-93 (1985).
135
See U.S. Const. amend. V (Double Jeopardy Clause); Bartkus v. Illinois, 359 U.S. 121, 136-39 (1959) (affirming power of state to
prosecute defendant after a federal prosecution for the same bank robbery); United States v. Lanza, 260 U.S. 377, 384-85 (1922) (approving
federal prosecution after state prosecution based on same conduct).
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U.S. victims lack a right to challenge noncharging decisions in cases of homicides by police. But they, along with organized
interest groups, can lobby prosecutors to prosecute. In some cities, voters and activist groups have pressured local prosecutors
on police violence cases. 206 It is difficult to assess what role public sentiment plays (and should play) in charging decisions.
But it is not hard to find instances of potent political challenges to non-prosecution of police officers in the wake of fatal
shootings. Chief prosecutors in Cleveland, Ohio, and Chicago, Illinois, lost reelection bids in the wake controversial failures to
charge police officers in fatal-shooting cases. 207 In the midst of popular and activist attention on such cases, prosecutors in
several other cities have charged officers for offenses related to suspects' deaths, with mixed records of success. 208 Chicago
prosecutors did so a year [*905] after police fatally shot a suspect and only upon public release of video of the incident 209 - a
scenario that suggests public attention corrected a noncharging decision influenced by improper considerations.
However, U.S. localities vary widely in their demographics, politics, and community sentiments toward these cases. 210 That
variation, plus local election of prosecutors, contributes to widely varying enforcement policies across prosecution offices. 211
And it means victims who urge prosecutions when local majority sentiment disfavors it have lower odds of successfully
influencing [*906] prosecutors. The political variability of local prosecutors' charging policies - and the vulnerability of those
decisions to local sentiment that favors unjustified underenforcement - are a key reason federal redundancy is important in this
context. Given that police misconduct is an established part of the U.S. Justice Department's enforcement agenda, federal
prosecutors should be a check on political judgments of local prosecutors. They also provide victims with a different agency to
appeal to for investigation and prosecution.
This federalism-based model of redundant enforcement has advantages as a strategy to reduce risks of unmerited
underenforcement. The alternative model authorizing judicial review of declination decisions, as is used in England, relies on
the independence of judges from the prosecutors whom they review. 212 The federalism model relies on the independence of
federal prosecutors from state prosecutors and police. The executive branch of one sovereign scrutinizes the enforcement
response of another. And it has the capacity to act on its independent judgment, while courts are confined to ordering
136
See United States v. Gamble, 694 Fed. App'x. 750 (11th Cir. 2017), cert. granted, Gamble v. United States, 138 S. Ct. 2707 (2018). Even
if the Court abolishes the dual sovereignty doctrine in Gamble, federal and state prosecutors will continue to be able to prosecute the same
offenders for the same conduct in many cases. Under Blockburger v. United States, 284 U.S. 299, 304 (1932), the Double Jeopardy Clause
precludes multiple prosecutions only if the subsequent charge has the "same elements" as the first. See United States v. Dixon, 509 U.S. 688,
696 (1993) (affirming Blockburger's same-elements test as the sole basis for double jeopardy claims). Unlike the firearm offenses that gave
rise to Gamble's Double Jeopardy claim, federal and state crimes covering the same conduct often have distinct elements. For an example, see
infra notes 200-02 and accompanying text.
137
See, e.g., U.S. Dep't of Justice, United States Attorneys' Manual, supra note 55, § 9-2.031 (explaining the "Petite policy" criteria for
federal prosecution of same conduct after state prosecution).
138
For an example of a high-profile federal declination in the wake of state declination, see U.S. Dep't of Justice, Department of Justice
Report Regarding the Criminal Investigation Into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson
5-9 (2015), https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf.
For a study of federal declination, see Reuters, U.S.
Police Escape Federal Charges in 96% of Rights Cases, Fortune (Mar. 13, 2016),http://fortune.com/2016/03/13/us-police-federal-chargesdata
(explaining that between 1995 and 2015, "[federal] prosecutors turned down 12,703 potential civil rights violations out of 13,233 total
complaints. By contrast, prosecutors rejected only about 23 percent of referrals in all other types of criminal cases").
139
See, e.g., Koon v. United States, 518 U.S. 81, 113-14 (1996) (remanding for new sentence calculation of police officers convicted in
federal court after acquittals in state court); Blinder, supra note 52 (describing federal conviction of South Carolina police officer after an
unsuccessful homicide prosecution of the officer in state court); Seven Baltimore City Police Officers Arrested for Abusing Power in Federal
Racketeering Conspiracy, U.S. Dep't Just. (Mar. 1, 2017), https://www.justice.gov/usao-md/pr/seven-baltimore-city-police-officers -arrestedabusing-power-federal-racketeering.
140
Moreover, internal Justice Department decisions are not subject to judicial review. See, e.g., U.S. Dep't of Justice, Criminal Resource
Manual § 162 (2016); U.S. Dep't of Justice, United States Attorneys' Manual, supra note 55, § 9-2.031.
141
For a recent example of change in Justice Department policies, see Eric Lichtblau, Sessions Indicates Justice Department Will Stop
Monitoring Troubled Police Agencies, N.Y. Times (Feb. 28, 2017), https://www.nytimes.com/2017/02/28/us/politics/jeff-sessions-crime.html.
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prosecutors to reverse their earlier non-prosecution decisions (or, occasionally, to appointing substitute prosecutors). This
"executive separation of powers" model has proven effective, although whether it is effective enough is debated; it depends on
whether all cases of police violence that should have been prosecuted - based on the evidence and the public interest in
enforcement - were prosecuted. State and federal prosecution offices have distinct professional cultures and are responsive to
different constituencies and modes of political supervision, which increases the independence of one from the other. 213 On the
other hand, federal prosecution is still to some degree political; it varies with the policy priorities of presidential administrations
214 to a degree that judicial review [*907] (in theory) should not. When there is less federal commitment to oversight of states'
approaches to police violence, enforcement redundancy is weak. 215 Victims and other interested parties have no other
recourse.
C. Underenforcement and Prosecutor Political Accountability
In short, U.S. strategies of enforcement redundancy have a relatively strong track record for some crimes such as public
corruption, are robust but vulnerable to political shifts for others such as a police violence, and are notably weak with regard to
certain offenses, such as sexual assaults. That last category is important because that weakness extends well beyond sexual
assault offenses; many of the routine crimes that make up typical state criminal dockets are not within the scope of federal
criminal law enforcement. And since private prosecution and judicial or administrative review of prosecutorial decisions are
almost completely absent from state criminal justice systems, there is no charging-decision oversight of state prosecutors'
declination decisions and enforcement policies - save for local electoral accountability. In forty-five of fifty states, chief
prosecutors are directly elected in local constituencies. 216 This form of democratic accountability operates as a kind of check
on underenforcement, although it has significant limits in its capacity to play that role.
State prosecutors' elected status is likely the best explanation [*908] for why victim-based checks on declination - private
prosecution or judicial review - never became a part of victims' rights reforms enacted in U.S. jurisdictions in recent decades.
First, prosecutors are politically powerful groups with legislatures, and they zealously guard their unfettered discretion over
criminal charging. 217 Second, it has led even courts to disfavor any degree of judicial review of charging decisions, on the
On Justice Department professionalism, see Jim McGee & Brian Duffy, Main Justice: The Men and Women Who Enforce the Nation's
Criminal Laws and Guard Its Liberties 7-9 (1996); Jed Handelsman Shugerman, The Creation of the Department of Justice:
Professionalization Without Civil Rights or Civil Service,66 Stan. L. Rev. 121, 125-26 (2014).
142
The arguable exceptions are federal crimes for race-based and civil rights-related violence and for local officials' abuses of power; in
those realms federal authorities responded to widespread failures by state law enforcement and justice systems. See generally Michal R.
Belknap, Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South 154-58 (1987) (highlighting
the federal response to southern violence in mid-twentieth century); Rhodri Jeffreys-Jones, The FBI: A History 19-24 (2007) (tracing FBI to
nineteenth century federal efforts to combat Ku Klux Klan terrorism of voters); William J. Stuntz, The Collapse of American Criminal Justice
99-157 (2011) (documenting the expansion of federal role in law enforcement and prosecution in the late nineteenth century).
143
See infra Part III.B.1.
144
See, e.g., Screws v. United States, 325 U.S. 91, 110-14 (1945).
145
For an indication that federal enforcement policy is designed to protect specific victim interests, see U.S. Dep't of Justice, FY 2014
Annual Performance Report and FY 2016 Annual Performance Plan I-16-17 (2015),
https://www.justice.gov/sites/default/files/doj/pages/attachments/2015/02/06/fy2014aprfy_2016app2.pdf (describing aspects of the
"Vulnerable People Priority Goal").
146
See Lichtblau, supra note 141.
147
See Paul G. Cassell & James R. Marsh, Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the
Need for a Congressional Response, 13 Ohio St. J. Crim. L. 1, 7 (2015).
148
See U.S. Dep't of Justice, supra note 145, at II-22, I-33 (describing prioritization of federal prosecutions into financial or government
fraud and child exploitation).
149
See Jane Kim, Taking Rape Seriously: Rape as Slavery, 35 Harv. J.L. & Gender 263, 277-83 (2012) (criticizing inadequate federal
criminalization of rape); Donald A. Dripps, Why Rape Should Be a Federal Crime 4 (2018), (unpublished manuscript),
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rationale that oversight of prosecutors lies in the political process rather than judicial enforcement of legal parameters for
charging. 218 Third, popular and political pressure has succeeded in redressing some underenforcement practices by
prosecutors (and police) when victim groups, or issues tied to specific offenses, achieve political potency. Intoxicated driving is
perhaps the best example of harmful wrongdoing about which many enforcement agencies have successfully revised their
policies to increase enforcement. 219 Domestic violence and sexual assaults are other examples where enforcement shifts have
been more limited but still significant. 220
Responses by local agencies to this type of pressure have taken three basic forms. First, chief prosecutors adopted internal
office policies that mandate - or set a strong presumption for - [*909] prosecution of specific crimes when evidence is
sufficient. 221 Second, prosecutors get specialized training on how to address the particular challenges posed by specific kinds
of cases such as domestic violence or sexual assault. 222 Finally, many offices have established dedicated, in-house units of
prosecutors who specialize in these same kinds of crimes. 223 States legislatures have encouraged these reforms, 224 but
virtually everywhere, the adoption, content, and enforcement of policies is left to local chief prosecutors. No legislation sets
specific charging criteria, authorized judicial review, or gives enforceable rights to victims. 225
These responses to underenforcement are meaningful, but their form is more political than legal. They are the kinds of
responses produced by a system of electorally accountable prosecutors and legislatures. 226 Often they are in large part
attributable to successful political efforts by advocacy groups. Mothers Against Drunk Driving (MADD), for example,
successfully urged reforms of laws and enforcement practices against intoxicated driving. 227 Feminist groups and women's
advocates play important, ongoing roles in reforming police and prosecution policies, substantive criminal laws, and evidence
rules for domestic [*910] violence and sexual assault offenses. 228 These efforts have succeeded in changing attitudes,
professional cultures, and enforcement practices in police and prosecution agencies that had contributed to underenforcement in
these areas. 229 Prosecution units specializing in offenses such as domestic violence, for example, strengthen professional
culture committed to enforcement by attracting lawyers who share that commitment and who develop expertise to act on it. 230
https://papers.ssrn.com/sol3 /papers.cfm?abstract_id= 3095741. Without grounds for federal jurisdiction - such as conduct involving
interstate travel or occurring on federal property - sexual assaults and other violent offenses are the exclusive province of state officials. Kim,
supra, at 277. For examples of the limits built into federal offenses, see18 U.S.C. § 1591(a)(1) (2016) (knowingly recruiting or enticing
minors to engage in commercial sex acts); 18 U.S.C. § 2423(b) (2016) (prohibiting travel in interstate commerce for purpose of engaging in
illicit sexual conduct with minor females).
150
The scholarly literature on public corruption is considerable. For a short overview of the debate and the federal law, see David Mills &
Robert Weisberg, Corrupting the Harm Requirement in White Collar Crime, 60 Stan. L. Rev. 1371, 1377-94 (2008). For longer treatments,
see generally Political Corruption: A Handbook (Arnold J. Heidenheimer et al. eds., 2d ed. 1989) (compiling comparative scholarly work on
political corruption); Routledge Handbook of Political Corruption: A Handbook (Paul M. Heywood ed., 2015) (focusing on international and
comparative corruption issues).
151
See, e.g., McDonnell v. United States, 136 S.Ct. 2355, 2365 (2016) (describing quid pro quo requirement for federal bribery offense, 18
U.S.C. § 201, in relation to extortion and honest-services fraud statutes, 18 U.S.C. §§1951(a) & 1346, used to prosecute corruption by state
officials); Skilling v. United States, 561 U.S. 358, 407-09 (2010) (clarifying quid pro quo requirements for bribery and kickback conduct in
honest-services fraud prosecutions).
152
See 18 U.S.C. § 201 (2012) (criminalizing bribes and gratuities); 18 U.S.C. § 666 (2012) (criminalizing theft or bribery related to
federally funded programs); 18 U.S.C.§§1341, 1343, 1346 (2016) (criminalizing mail, wire, and "honest services" fraud); 18 U.S.C. § 1951
(2012) (criminalizing extortion "under color of official right").
153
See, e.g., Nicholas Kusnetz, Only Three States Score Higher Than D+ in State Integrity Investigation; 11 Flunk, Ctr. for Pub. Integrity,
https://www .publicintegrity.org/2015/11/09/18693/only-three-states-score-higher-d-state -integrity-investigation-11-flunk (last updated Nov.
23, 2015) (scoring states and explaining methodology; all but three states scored a "D+" or below on A-to-F scale); see also Corruption
Perceptions Index 2016, Transparency Int'l (Jan. 25, 2017), https://www.transparency.org/news/feature/corruption_
perceptions_index_2016#table (ranking 174 countries by corruption scores; the United States ranked eighteenth). On the challenges facing
corruption measures, see generally Staffan Andersson, Beyond Unidimensional Measurement of Corruption, 19 Pub. Integrity 58 (2017)
(analyzing the challenges posed by treating corruption as a one-dimensional phenomenon); Adriana S. Cordis & Jeffrey Milyo, Measuring
Public Corruption in the United States: Evidence From Administrative Records of Federal Prosecutions, 18 Pub. Integrity 127 (2016)
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Successes notwithstanding, reliance on this kind of political supervision cannot be an equally effective remedy for
underenforcement across all contexts. The independence of local prosecution and police agencies means that policies,
resources, and constituent support for rigorous enforcement inevitably vary. 231 They will differ not only across localities but
also according to the type of offense and the identity of the victim. Some groups, such as victims of intoxicated drivers, can
succeed at achieving more rigorous enforcement policies. 232 Other victims with less political support or popular sympathy -
undocumented immigrants, sex workers, prison inmates, and casualties of police shootings 233 - have dimmer prospects when
prosecutors are responsive to local majorities' preferences. In some places, public [*911] sentiment is a force in favor of
charging in categories of wrongdoing that have suffered from patterns of underenforcement. In other places, the same can be a
force against charging and can reinforce underenforcement practices. Either way, electoral accountability can lead to undue
pressure on prosecutors to yield to majoritarian or interest-group pressure to avoid "commiting political suicide." 234
In short, political supervision, as an institutional structure to minimize unjustified failures to prosecute, is an institutional
structure with a highly uneven track record and decidedly mixed prospects. On the other hand, some of the strategies for
enforcement redundancy examined above that take the form of legal entitlements would likely also achieve partial success.
Private prosecution is an unpromising device to aid certain marginalized victim groups such as inmates, undocumented
immigrants, or low-income people generally. Other options - review of declination by courts, or concurrent jurisdiction of a
separate prosecution agency - hold somewhat more promise. Judicial review is somewhat more removed from political
influence (though perhaps less so in jurisdictions that elect judges), 235 although that mechanism still depends on victims to
petition for review. The overlap of federal and state criminal jurisdiction subjects enforcement to review by a rival agency
subject to, at worst, different political influences. At best, as with a Justice Department that can minimize political influence
with professional and bureaucratic norms, it expands the prospect for less political review. 236
(criticizing the use of federal convictions data in public corruption analysis and advocating instead for the use of administrative data). For a
list of state criminal laws and ethical rules governing corruption, see Penalties for Violations of State Ethics and Public Corruption Laws,
Nat'l Conf. St. Legislatures,http://www.ncsl.org/research/ethics/50-state-chart-criminal-penalties -for-public-corr.aspx (last updated Sept. 10,
2018).
154
Pub. Integrity Section, U.S. Dep't Of Justice, Report to Congress on the Activities and Operations of the Public Integrity Section for
2015, at i (2015), https://www.justice.gov/criminal/file/891961/download.
155
See, e.g., id. at 17-19 (providing examples of the Justice Department's prosecution of state and local officials).
156
Id. at 23-24 tbl.2 (tracking the number of convictions of corrupt public officials during 1996-2015); id. at 25-28, tbl.3 (tracking public
corruptions prosecutions by federal district during 2006-2015); Patricia Salkin & Bailey Ince, It's a "Criming Shame": Moving from Land
Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts, 46 Urb. Law. 249, 250 (2014) (describing
federal prosecution of state and local officials).
157
Fed. Bureau of Investigation, U.S. Dep't of Justice, The FBI Story: 2017, at 11 (2017), https://www.fbi.gov/file-repository/the-fbi-story-
2017 .pdf/view (describing public corruption as a "key responsibility").
158
See, e.g., id. at 10-20 (providing specific examples of federal public corruption prosecution for various types of conduct).
159
Id.
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[*912]
CONCLUSION
All justice systems suffer from pockets of unjustified, even pernicious, underenforcement. All recognize that public
prosecutors can be vulnerable to biases and institutional interests that distort enforcement decisions. Especially in recent
decades, nearly all have adopted mechanisms to address those risks. Outside the United States, victim rights legislation has
included provisions directed at unjustified decisions not to prosecute. In other common law countries and in Europe, most
victims may now either seek independent review of prosecutors or initiate prosecutions on their own. Independent review keeps
the safeguard against underenforcement in public hands while strengthening the principle that charging decisions should be
nonpolitical and ministerial in nature. Victim rights reforms in general manifest a judgment that modern criminal justice had
focused excessively on public interests and unduly neglected victims' private interests in criminal prosecutions. Authorizing
victims to challenge declination decisions extends this idea by recognizing victims' private stake in those decisions and
enabling victims to serve the public interest in preventing unjustified failures to prosecute. 237
Virtually all U.S. jurisdictions reject both of those strategies. 238 And rather than insulate their prosecutors from political
[*913] influence, most states rely on electoral politics for oversight of prosecution practices. Instead, the U.S. model opts for
duplicative federal-state jurisdiction against a background of politically attuned state prosecutors. Both this federalism model of
redundant prosecutorial authority - which may be reduced this term by the Supreme Court's decision in Gamble - and the model
of politically responsive prosecutors have proven effective at redressing some types of underenforcement. Both serve some
victims' interests without taking the form of victim rights. And both reflect a preference for political over legal safeguards
against biased or ill-conceived uses of prosecutorial discretion.
American criminal justice is more sanguine than other legal systems about the downsides of prosecutors' electoral
accountability and attention to majoritarian sentiments. U.S. prosecutors' democratic legitimacy works against arguments for
more formal oversight or regulation. Even against the potent political power of victims' rights movements, unfettered executive
charging discretion has proven immutable. 239 But federal prosecutors provide significant oversight, at least for some
160
United States v. Alfisi, 308 F.3d 144, 155-56 (2d Cir. 2002) (Sack, J., dissenting) (arguing that payments to federal officials prosecuted
under 18 U.S.C. § 201 caused no clear harm or "corruption"); Mills & Weisberg, supra note 150, at 1373-74 (discussing the role of fiduciary
duties in criminal liability); id. at 1377, 1386-90, 1404-05 (discussing uncertainty of "harm" in some contexts); id. at 1395-1400 (discussing
honest services); Lex Hemphill, Acquittals End Bid Scandal that Dogged Winter Games, N.Y. Times, Dec. 6, 2003, at D1 (reporting a federal
district judge's criticism of the prosecution, saying "in his 40 years of working in the criminal justice system, he had never seen a case so
devoid of "criminal intent or evil purpose'").
161
For Supreme Court decisions rejecting broad applications of federal anti-corruption statutes, see generally McDonnell v. United States,
136 S. Ct. 2355 (2016) (reversing the former Virginia Governor's conviction for honest-services fraud and extortion); McNally v. United
States, 483 U.S. 350 (1987) (reversing the conviction of state officials and holding that federal mail fraud statute, 18 U.S.C. § 1341, does not
apply to schemes to defraud state citizens of the intangible "right to have the Commonwealth's affairs conducted honestly"). As a matter of
statutory interpretation, the Court requires a "clear statement" that Congress intends a federal criminal statute to duplicate a state crime and
thereby "effect a significant change in the sensitive relation between federal and state criminal jurisdiction." United States v. Bass, 404 U.S.
336, 349-50 (1971); see also Rewis v. United States, 401 U.S. 808, 811-12 (1971). But Congress has made such intent sufficiently clear for
the Court in numerous statutes, including those at issue in Bass (18 U.S.C. § 1202(a), now codified at 18 U.S.C. § 922(g)) and in Rewis (18
U.S.C. § 1952). See, e.g., Perrin v. United States, 444 U.S. 37, 50 (1979) (finding that § 1952 reflects congressional intent "to alter the
federal-state balance in order to reinforce state law enforcement").
162
See, e.g., Roderick M. Hills, Jr., Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-Federal
Democracy?, 6 Theoretical Inquiries L. 113, 137-44 (2005) (arguing that federal enforcement of public corruption in local governments
harms local styles of democracy); Harvey A. Silverglate & Emma Quinn-Judge, Tawdry or Corrupt? McDonnell Fails to Draw a Clear Line
for Federal Prosecution of State Officials, 2016 Cato Sup. Ct. Rev. 189, 213-19 (2016) (arguing that the honest services statute is too vague to
be fairly enforced); cf. John C. Coffee, Jr., Modern Mail Fraud: The Restoration of the Public/Private Distinction, 35 Am. Crim. L. Rev. 427,
430-31 (1998) (arguing that federal prosecutors rely on broad federal common law crimes in fraud cases against state and local public
officials); Salkin & Ince, supra note 156, at 266-67 (describing aggressive federal enforcement of public corruption in the context of land
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use). But see Mark S. Gaioni, Federal Anticorruption Law in the State and Local Context: Defining the Scope of 18 U.S.C. § 666, 46 Colum.
J.L. & Soc. Probs. 207, 237-45 (2012) (arguing for broad interpretation of § 666 to cover state and local officials).
163
See, e.g., 18 U.S.C. § 1346 (2012) (criminalizing "honest services" fraud). The statute was enacted in 1988 in response to the Supreme
Court's 1987 decision in United States v. McNally, which held that 18 U.S.C. § 1341 did not cover "honest services" fraud. Gaioni, supra note
162, at 243 n.192.
164
See, e.g., Perrin, 444 U.S. at 50 (finding that section 1952 reflects congressional intent "to alter the federal-state balance in order to
reinforce state law enforcement").
165
See, e.g., 18 U.S.C. § 1952 (2012) (prohibiting interstate travel for "unlawful activity," which can be made unlawful by state law); Perrin,
444 U.S. at 50 ("In defining "unlawful activity' [in 18 U.S.C. § 1952], Congress has clearly stated its intention to include violations of state as
well as federal bribery law."); United States v. Welch, 327 F.3d 1081, 1092-1103 (10th Cir. 2003) (reinstating an indictment and holding that
Utah law serves as predicate to define violations of 18 U.S.C. § 1952).
166
See Kim, supra note 149; Dripps, supra note 149, at 3 (noting that sexual assaults in federal law are confined to very limited contexts,
such as human trafficking).
167
See Kim, supra note 149.
168
See Lynching in America: Confronting the Legacy of Racial Terror, Equal Just. Initiative, https://lynchinginamerica.eji.org/report (last
visited Oct. 30, 2018) ("Of all lynchings committed after 1900, only 1 percent resulted in a lyncher being convicted of a criminal offense"
(citing Paula J. Giddings, Ida: A Sword Among Lions 473-74 (2008))). Data on prosecutorial charging decisions is harder to come by, but
clearance rates for homicides - meaning the percentage of cases police resolve, usually by arrest - are higher for homicides than other offense
categories. See 2016 Crime in the United States, FBI: UCR, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/tables/table-17
(last visited Oct. 30, 2018) (reporting that the 2016 national clearance rate for homicides was 59.4%, compared to 45.6% for all violent crime
and 18.3% for property crimes).
169
See S. Rep. No. 103-138, at 42 (1994) ("Police may refuse to take reports [of crimes against women]; prosecutors may encourage
defendants to plead to minor offenses … . At every step of the way, the criminal justice system poses significant hurdles for victims.");
Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol'y Rev. 431, 439 (2016) ("One out of about ten acts of rape or attempted rape
that fit basic legal definitions in the United States is reported to authorities. Dramatically fewer [reported cases] are prosecuted or result in
convictions … ."). For detailed examination of prosecutor decision-making on sexual assault complaints in three jurisdictions, see Cassia C.
Spohn et al., Nat'l Criminal Justice Reference Serv., Prosecutors' Charging Decisions in Sexual Assault Cases: A Multi-Site Study 85-88
(2001), https://www.ncjrs.gov/pdffiles1/nij/grants/197048.pdf.
170
See Dripps, supra note 149, at 6 & n.25 (noting a National Violence Against Women survey by the Centers for Disease Control found
twice as many rapes as the NCVS survey reported for the same year). See generally Candace Kruttschnitt et al., Estimating the Incidence of
Rape and Sexual Assault (2014) (describing the reasons why it is "highly likely" that the National Crime Victimization Survey, conducted by
the Bureau of Justice Statistics, underestimates rapes and other sexual assaults).
171
Kruttschnitt et al., supra note 170; Dripps, supra note 149.
172
Dripps, supra note 149, at 9 (summarizing and comparing Federal Bureau of Investigation Uniform Crime Reports and National Crime
Victimization Survey data).
173
See supra note 169 and accompanying text.
174
Dripps, supra note 149, at 13-15 (summarizing clearance-rate data from Federal Bureau of Investigation Uniform Crime Reports and
from the Los Angeles County Sheriff's Department).
175
See, e.g., Cassia Spohn & Katharine Tellis, Nat'l Criminal Justice Reference Serv., Policing and Prosecuting Sexual Assault in Los
Angeles City and County VII (2012), https://www.ncjrs.gov/pdffiles1/nij/grants/237582.pdf.
176
Id. at VII-VIII, 8. Data on clearance rates is itself suspect; departments sometimes do not disclose all reports of sexual assaults they
receive. Id. at IV (finding that the L.A. Police Department and the L.A. Sheriff's Department both substantially exaggerated their clearance
rates).
177
Rape Kit Backlogs: Failing the Test of Providing Justice to Sexual Assault Survivors: Hearing Before the Subcomm. on Crime,
Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 21 (2010) (statement of Rep. Anthony Weiner, Member, H.
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Comm. on the Judiciary) (noting that there are over 542,000 untested rape kits); Caitlin Dickson, How the U.S. Ended Up With 400,000
Untested Rape Kits, Daily Beast (Sept. 23, 2014), https://www .thedailybeast.com/how-the-us-ended-up-with-400000-untested-rape-kits;
Dayton Uttinger, Why Is There Still a Rape Kit Backlog?, Women's Media Ctr. (Aug. 1,
2017),http://www.womensmediacenter.com/fbomb/why-is-there-still-a-rape-kit-backlog ("There are an estimated 175,000 untested rape kits
… across the US … .").
178
See Office on Violence Against Women, U.S. Dep't of Justice, Sexual Assault Kit Testing Initiatives and Non-Investigative Kits 3
(2017), https://www.justice.gov/ovw/page/file/931391/download (noting that $ 100 million was awarded to states and localities in 2014-16 to
reduce rape kit backlog).
179
Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va. L. Rev. 1500, 1505-07 (1975).
180
See, e.g., State v. Sibley, 33 S.W. 167, 171 (Mo. 1895) ("The rule in this state permitting a witness to be impeached by proof of general
reputation for unchastity is confined to females."); People v. Abbot, 19 Wend. 192, 194 (N.Y. 1838) (permitting questions to the rape
complainant about her past sexual conduct because in rape prosecutions "the material issue is on the willingness or reluctance of the
prosecutrix - an act of the mind").
181
Susan Estrich, Real Rape 8 (1987).
182
See id. at 8-22 (describing traditional rape definitions, spousal exception, evidentiary rules, and police responses to rape reports); Recent
Statutory Developments in the Definition of Forcible Rape, supra note 179, at 1505-07 (describing the "utmost resistance" requirement); see
also State v. Terry, 215 A.2d 374, 376 (N.J. Super. Ct. App. Div. 1965) (affirming that, to prove liability for rape, "it must be shown that [the
victim] did, in fact, resist the assault").
183
Kathleen F. Cairney, Addressing Acquaintance Rape: The New Direction of the Rape Law Reform Movement, 69 St. John's L. Rev. 291,
298-99 (2012).
184
See Fed. R. Evid. 412; Leah DaSilva, The Next Generation of Sexual Conduct: Expanding the Protective Reach of Rape Shield Laws to
Include Evidence Found on Myspace, 13 Suffolk J. Trial & App. Advoc. 211, 219 (2008) ("In 1974, Michigan became the first jurisdiction to
enact a rape shield law. The federal government and remaining forty nine states followed, most within several years."); cf. Joel E. Smith,
Annotation, Constitutionality of "Rape Shield" Statute Restricting Use of Evidence of Victim's Sexual Experiences, 1 A.L.R. 4th 283 (2018)
(discussing constitutional limits on rape shield rules).
185
See Fed. R. Evid. 413, 414.
186
See, e.g., Cyrus R. Vance, Jr., N.Y. Cty. Dist. Attorney's Office, Sexual Assault and the Criminal Justice System (2010),
http://manhattanda.org/sites/default/files/Sex_Crimes.pdf
[https://web.archive.org/web/20170702150412/
http://manhattanda.org/sites/default/files/Sex_Crimes .pdf] (describing the "Sex Crimes Prosecution Unit" and special units for sexual
assaults crime and victims in hospitals police precincts, and social service agencies). See generally Jennifer G. Long & John Wilkinson, The
Benefits of Specialized Prosecution Units in Domestic and Sexual Violence Cases, AEquitas: Strategies Brief, Dec. 2011, at 1, 1 (describing
how experienced prosecutors improve handling of domestic and sexual violence cases). Similar strategies of offense reform and creation of
dedicated prosecution units have more recently been strategies against another context of endemic underenforcement - crimes against
inmates. See Alysia Santo, Preying on Prisoners: In Texas, Staffers Rarely Go to Jail for Sexually Abusing Inmates, Marshall Project (June 7,
2015), https://www.themarshallproject.org/2015/06/17/preying-on-prisoners (describing a special prosecution unit in Texas focused on
crimes against inmates, and noting that between 1990 and 2006, the number of states with statutes that expressly criminalize sexual abuse of
inmates rose from eighteen to fifty, and prosecution rates rose from thirty-seven to forty-nine percent of staff sexual misconduct case
referrals).
187
See State v. Stahl, 855 N.E.2d 834, 836 (Ohio 2006) (describing the "Developing Options for Violent Emergencies (DOVE) unit" in a
hospital designed to gather evidence from and provide care to sexual assault victims); History of the Movement, Wash. Coalition Sexual
Assault Programs, http://www .wcsap.org/history-movement (last updated May 9, 2016) (describing the establishment of the first rape crisis
centers in 1972). See generally Office Violence Against Women, U.S. Dep't of Justice, A National Protocol for Sexual Assault Medical
Forensic Examinations: Adults/Adolescents (2013), https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf (describing recommendations,
techniques, and strategies for health care providers to maximize forensic evidence gathering during provision of medical care).
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important kinds of crimes within states' jurisdictions. This federalism-based model of enforcement redundancy is a distinctive if
188
Cassia Spohn & Julie Horney, Rape Law Reform: A Grassroots Revolution and Its Impact 77 (1992) (describing expectations that legal
reforms would improve prosecution rates); id. at 100 ("Legal changes did not produce the dramatic results that were anticipated by reformers.
The reforms had no impact in most of the jurisdictions.").
189
Jennifer L. Truman & Rachel E. Morgan, Bureau Justice Statistics, U.S. Dep't of Justice, Criminal Victimization, 2015, at 2 tbl.1 (2016),
https://www.bjs.gov/content/pub/pdf/cv15.pdf (reporting that the National Crime Victimization Survey estimated 431,840 rapes/sexual
assaults in 2015); Crime in the United States by Volume and Rate Per 100,000 Inhabitants, 1996 -2015, Fed. Bureau Investigation,
https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-1 (last visited Oct. 30, 2018) (reporting 124,047 rape reports
under the "revised definition").
190
Cf. Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. Pa. L. Rev. 927, 946-50 (2006) (arguing that
social movements significantly shape the application of constitutional principles); Reva B. Siegel, Text in Contest: Gender and the
Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 279, 328-44 (2001) (arguing that the history of the Nineteenth
Amendment and the Equal Rights Amendment show that the U.S. Constitution is amenable to contestation by social movements).
191
Violence Against Women Act of 1994, Pub. L. 103-322 (1994) (codified at 34 U.S.C.§§12291-12511) (2017) (establishing a broad set of
policies directed at violence against women that creates no federal criminal offenses).
192
Dripps, supra note 149, at 46-49, app. I. For an earlier proposal along the same lines, see Kim, supra note 149, at 304-09.
193
E.g., Office on Violence Against Women, supra note 178 and accompanying text.
194
The statutory authority is 42 U.S.C. § 14141 (2016).
195
See Harmon, Policing Reform, supra note 21 (discussing structural reform aimed at police violence without noting any instances of
targeting sexual assault offenses).
196
Leading observers view this structural reform as insufficient to address the scope of the police-misconduct problems. See id. at 59-61
(describing injunctive relief under 42 U.S.C. § 14141, noting limits on data about police misconduct, and explaining how insufficient data
limits the effectiveness of reform efforts). On the prospect of reduced federal commitment to this strategy in the Trump administration, see
U.S. Attorney Gen., supra note 24; Horwitz et al., supra note 24.
197
See Dripps, supra note 149, at 19 & n.100 (citing five federal actions under § 14141 addressing local agencies' responses to sexual assault
crimes).
198
That is, federal criminal law is effective at successful prosecutions, if not at reducing the underlying social problem targeted by criminal