law. See generally, e.g., Steven B. Duke & Albert C. Gross, America's Longest War: Rethinking Our Tragic Crusade Against Drugs (1993)
(examining and critiquing American drug policies).
199
See, e.g., 18 U.S.C. § 241 (2012) (criminalizing conspiracy); id. § 242 (criminalizing willful deprivation of federal rights while acting
under color of law); id. § 249 (criminalizing willful bodily injury because of victim's race, religion, sexual orientation, or gender identity).
Federal prosecutors focus on other serious direct-victim crimes as well, such as human trafficking and child pornography. See U.S. Dep't of
Justice, supra note 145 (describing prioritization of such cases). But federal involvement in that realm is presumably motivated not so much
by a need for oversight of untrustworthy state prosecutors as by the greater resources, expertise, and interstate jurisdictional advantages that
federal prosecutors bring to such cases. Criminal prosecution is only one aspect of federal policies to reduce custodial deaths and improper
uses of force by police. Other strategies include investigating abuse and corruption in local police agencies and using civil injunctive
remedies against those agencies to change patterns of wrongdoing, as well as gathering data on custodial deaths and police uses of force. See
Harmon, Policing Reform, supra note 21; Simone Weichselbaum, Policing the Police: As the Justice Department Pushes Reform, Some
Changes Don't Last, Marshall Project (May 26, 2015), https://www.themarshallproject.org/2015/04/23/policing -the-police (describing the
difficulties in achieving lasting reforms in local police departments through federal consent decrees).
200
See 18 U.S.C. § 242 (liability for an official who "willfully subjects any person … to the deprivation of any [federal] rights"); United
States v. Screws, 325 U.S. 91, 103 (1945) (interpreting § 242's willfulness term to require "specific intent to deprive a person of a federal
right").
201
The prosecution of South Carolina police officer Michael Slager provides an example. State prosecutors charged Slager with murder;
federal prosecutors charged him with criminal violation of civil rights under 18 U.S.C. § 242. For an example of this contrast between state
and federal charges for the same offense, see Blinder, supra note 52; Michael S. Schmidt & Matt Apuzzo, Officer Is Charged with Murder of
a Black Man Shot in the Back, N.Y. Times, Apr. 8, 2015, at A1.
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202
See Perrin v. United States, 444 U.S. 37, 50 (1979) (broadly interpreting "bribery" in 18 U.S.C. § 1952 to include bribery of private
individuals); supra Part III.B.1 and note 161 (citing Perrin in discussion of anti-corruption prosecutions under 18 U.S.C. § 1952).
203
See, e.g., Wis. Stat.§§175.47, 950.04(1v)(do), 950.08(2g)(h) (2014) (codifying Wis. Act 348 (2013)) (requiring investigations of "officerinvolved
deaths" to be conducted by investigators from a different agency).
204
See Data Collection: Mortality in Correctional Institutes (MCI) (Formerly Deaths in Custody Reporting Program (DCRP)), Bureau Just.
Stat., https://www.bjs.gov/index.cfm?ty=dcdetail&iid=243 (last visited Oct. 30, 2018) (providing data collection since 2000 for jails, since
2001 for prisons, and since 2003 during arrests). The Death in Custody Reporting Act of 2000,42 U.S.C. § 13704 (2006), required local
agencies to report deaths until it lapsed in 2006. Hunter Schwartz, Congress Decides to Get Serious About Tracking Police Shootings, Wash.
Post (Dec. 11, 2014), https://www.washingtonpost.com/news/post-politics/wp/2014/12/11/congress-decides-to-get-serious-about-tracking -
police-shootings. It was renewed in 2014. Death in Custody Act of 2013, Pub. L. 113-242,128 Stat. 2860 (codified as amended in scattered
sections of 42 U.S.C). In the interim years, the Bureau collected data voluntarily reported by local agencies. Pete Kasperowicz, House Bill
Would Require States to Report on Prisoner Deaths, Hill (Dec. 6, 2013), https://thehill.com/blogs/floor-action/government-oversight/192354-
house-to-require-states-to-report-on-prisoner -deaths.
205
See supra note 113.
206
E.g., Ed Krayewski, Prosecutors in Chicago, Cleveland Lose Re-Election Bids After Police Abuse Controversies, Reason (Mar. 16,
2016), http://reason .com/blog/2016/03/16/prosecutors-in-chicago-cleveland-lose-re.
207
Id.; see also Justin Glawe, Anita Alvarez, Chicago's Top Prosecutor, Cleared Killer Cops 68 Times, Daily Beast (Mar. 14, 2016),
http://www .thedailybeast.com/articles/2016/03/14/anita-alvarez-chicago-s-top-prosecutor -cleared-killer-cops-68-times.html.
208
See Manslaughter Conviction for Ex-Officer, N.Y. Times, Aug. 5, 2016, at A15; Richard Perez-Pena, Officer Indicted in Shooting Death
of Unarmed Man, N.Y. Times, July 30, 2015, at A1; Mark Berman, Minn. Officer Acquitted in Shooting of Philando Castile During Traffic
Stop, Dismissed From Police Force, Wash. Post (June 17, 2017), https://www.washingtonpost.com/news/post -nation/wp/2017/06/16/minnofficer-acquitted-of-manslaughter-for-shooting
-philando-castile-during-traffic-stop; Chris Dixon, Ex-Officer Seeks Bond in Shooting Death
of Walter Scott, N.Y. Times (Sept. 11, 2015), https://www. nytimes.com/2015/09/12/us/officer-seeks-bond-in-shooting-death-of-walter -
scott.html (stating that officer was charged with murder); Wil S. Hylton, Baltimore vs. Marilyn Mosby, N.Y. Times Mag. (Sept. 28, 2016),
https://www.nytimes.com/2016/10/02/magazine /marilyn-mosby-freddie-gray-baltimore.html (describing the failure to convict any of six
officers indicted for the April 2015 death of Freddie Gray); Justin Juozapavicius, Tulsa Officer Acquitted In Man's Shooting Death Is
Returning To The Police Force, Associated Press (May 19, 2017), https://www.apnews.com/9af40bcdbbd84f6e95fb3a430d4016c0.
209
Monica Davey & Mitch Smith, Justice Department Is Expected to Investigate Chicago Police, N.Y. Times, Dec. 7, 2015, at A10
(reporting on the Justice Department's investigation into the patterns and practices of the Chicago Police Department in the wake of Laquan
McDonald shooting); Mitch Smith, Chicago Officer Pleads Not Guilty to Charge of Murder in Death of a Teenager, N.Y. Times, Dec. 30,
2015, at A12 (stating that a police officer was charged for the 2014 fatal shooting of a teenager just before video footage of the incident was
released).
210
For one notable political response, see La. Stat. Ann. §§14:107.2(A), (E) (2018) (creating the "Blue Lives Matter" law); Kevin Conlon,
Louisiana Governor Signs "Blue Lives Matter' Bill, CNN (May 27, 2016), https://www.cnn.com/2016/05/26/us/louisiana-blue-lives-matterlaw/index.html
(describing passage of House Bill 953).
211
See, e.g., W. David Ball, Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration
Rates - And Why It Should, 28 Ga. St. U. L. Rev. 987, 1018-34 (2012) (analyzing data from 2000-2009 and describing how county-level
criminal justice officials, including prosecutors, vary greatly in their use of state incarceration as a response to crime); Erika Martin, While
Some California DAs Are Throwing Out Old Pot Convictions, L.A. County's Jackie Lacey Takes a Different Path, KTLA5 (Feb. 3, 2018),
https://ktla.com/2018/02/03/while-some-california-das-are-throwing-out -old-pot-convictions-angelenos-will-have-to-be-proactive-inclearing-records
(describing different policies among California district attorneys on expungement of marijuana offenses); cf. Civil Rights
Div., U.S. Dep't of Justice, Investigation of the Ferguson Police Department 10-15 (2015),
https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf (describing
prosecution policies motivated by revenue-generating goals).
212
The alternative of administrative review within the Crown Prosecution Service relies on whatever independence is sustained by the
bureaucratic hierarchy, administrative regulations, and professional norms. See supra note 111 and accompanying text.
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not unique hybrid: it provides independent review removed from local electoral politics, yet power remains in the hands of
213
U.S. Attorneys and the U.S. Attorney General are political appointees, U.S. Const. art. II, § 2 (Appointments Clause); 28 U.S.C. § 541
(2012) ("The President shall appoint … a United States attorney for each judicial district."), although much of the Justice Department staff are
nonpolitical, civil service appointees. See Government Ethics Outline, U.S. Dep't Just., https://www .justice.gov/jmd/government-ethicsoutline
(last updated July 5, 2017) (explaining ethics rules for "non-career" political appointees and for career employees).
214
See Sanford C. Gordon, Assessing Partisan Bias in Federal Public Corruption Prosecutions, 103 Am. Pol. Sci. Rev. 534, 549 (2009)
(finding evidence of political party bias among federal prosecutors).
215
The clearest historical example would be the post-Reconstruction decades, starting roughly after 1876, when the federal government
retreated from civil rights enforcement in the former Confederate states, including from prosecutions for criminal rights violations and
offenses that states declined to charge, including for homicides. See generally Eric Foner, Reconstruction: America's Unfinished Revolution,
1863-1877, at 524-86 (2014) (describing declining enthusiasm for civil rights enforcement and waning Republican political influence in the
South); William Gillette, Retreat from Reconstruction, 1869-1879, at 190-200 (1979) (describing Southern Democrats efforts to resist civil
rights enforcement); George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of
1866, at 95-100 (2013) (describing Supreme Court decisions limiting the enforcement of the Civil Rights Act of 1866).
216
Alaska, Connecticut, and New Jersey do not elect prosecutors. Perry, supra note 122, at 2. Delaware and Rhode Island elect state
attorneys general, whose appointed staff handle all prosecutions. Id. at 11. Except in these jurisdictions, state attorneys general and justice
departments generally have little authority over local prosecutors' offices. Cf. Michael J. Ellis, The Origins of the Elected Prosecutor, 121
Yale L.J. 1528, 1528 n.1 (2012) (noting that elected prosecutors are unique to the United States).
217
A classic account of prosecutors' political influence is William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev.
505, 546-57 (2001). For an insightful account of federal prosecutors successfully convincing Congress to expand their discretion at the
expense of judges' sentencing authority, see United States v. Kupa, 976 F. Supp. 2d 417, 419-27 (E.D.N.Y. 2013) (describing the legislative
history and Justice Department lobbying related to federal drug statutes, notably 21 U.S.C. § 841 (2012)).
218
See, e.g., Milliken v. Stone, 7 F.2d 397, 399 (S.D.N.Y. 1925), aff'd 16 F.2d 981 (2d Cir. 1927) ("The remedy for [dereliction of the
prosecutor's duty] is with the executive and ultimately with the people."); In re Hickson, 2000 PA Super 402, P 36 ("The prosecutor is elected
to run her office using her broad discretion fairly and honestly. If she fails to do so, … the remedy lies in the power of the electorate to vote
her out of office."); In re Padget, 678 P.2d 870, 873-74 (Wyo. 1984) ("District and county attorneys hold elective offices; if their constituents
are unsatisfied, they are free to express their feelings at the voting polls."); cf. Cheney v. U.S. Dist. Court, 542 U.S. 367, 386 (2004) ("The
decision to prosecute a criminal case … is made by a publicly accountable prosecutor."). For discussion of this point, see Brown, supra note
126, at 33-41.
219
See Adam M. Gershowitz, 12 Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases, 2011 U. Ill. L. Rev. 961,
966-69, 984-87 (2011).
220
Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1689-90
(2004).
221
Police departments also widely adopted mandatory arrest policies, especially for domestic violence offenses. For discussions and
examples of both police and prosecution policies on domestic violence and sexual assault, see Aya Gruber, The Feminist War on Crime, 92
Iowa L. Rev. 741, 760 & n.90 (2007); Sack, supra note 220. Note how this resembles the mandatory prosecution duty familiar in European
systems, although it is an internal policy rather than statutory mandate. See supra Part II.B.1.
222
See supra note 186 and accompanying text.
223
Id.
224
See, e.g., Fla. Stat. § 741.2901(1)-(2) (2018) ("Each state attorney shall develop special units or assign prosecutors to specialize in the
prosecution of domestic violence cases … [who] shall receive training in domestic violence issues… . The state attorney in each circuit shall
adopt a pro-prosecution policy for acts of domestic violence … ."); Wis. Stat. § 968.075(7) (2018) ("Each district attorney's office shall
develop, adopt and implement written policies encouraging the prosecution of domestic abuse offenses.").
225
Some state legislatures enact voluntary charging criteria in statutes that affirm prosecutorial discretion. See, e.g., Wash. Rev. Code §
9.94A.411 (2018) ("A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists," and
providing a "Guideline/Commentary" for such decisions).
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226
See supra note 224 (citing state statutes in Florida and Wisconsin that encourage or mandate local prosecutors to adopt policies that
improve enforcement).
227
Gershowitz, supra note 219.
228
On domestic violence and rape offenses, see Gruber, supra note 221, at 752-63 (recounting the feminist movement's efforts to reform
domestic violence and rape prosecution law and policies); id. at 760 & n.90 (citing statutes that require prosecutors to adopt "proprosecution"
policies for domestic violence); id. at 763-74 (describing the history of victim rights' movement); Sack, supra note 220, at 1666,
1689-90 (2004) (describing the women's movement as focused on domestic violence since the 1960s and arguing that mandatory prosecution
policies are necessary for police and prosecutors to make the "right choices"); Christine O'Connor, Note, Domestic Violence No-Contact
Orders and the Autonomy Rights of Victims, 40 B.C. L. Rev. 937, 942-43 (1999) (arguing that prosecutors' view of domestic violence as a
private problem contributed to reluctance to prosecute). On drunk-driving law and policy, see Gershowitz, supra note 219 (describing efforts
by MADD and other groups to toughen laws and enforcement efforts against drunk driving and summarizing subsequent law reform).
229
See supra note 228.
230
Cf. Long & Wilkinson, supra note 186, at 1 (explaining that specialized prosecution units provide prosecutors with the opportunity to
work with "community partners").
231
See, e.g., Jeffrey Ulmer & Christopher Bader, Do Moral Communities Play a Role in Criminal Sentencing? Evidence from Pennsylvania,
49 Soc. Q. 737, 753, 757 (2008) (finding in county-level data that "Christian religious homogeneity" increases the likelihood of incarceration,
especially when Christian denominations are civically engaged, partially through the effect of local Republican Party dominance via the
election of judges and prosecutors).
232
Gershowitz, supra note 219.
233
See generally Richard Perez-Pena & Timothy Williams, Glare of Video Is Shifting Public's View of Police, N.Y. Times, July 31, 2015, at
A1 (describing survey data on public views about police and apparent effects of video evidence on public opinion); Santo, supra note 186
(describing enforcement challenges for crimes against prison inmates).
234
Ian Lovett, Los Angeles Joins Debate on Force After Police Killing of a Homeless Man, N.Y. Times, April 17, 2016, at A12 (describing
the "pressure that prosecutors now face to move aggressively against officers who kill civilians" and quoting an activist who says that the Los
Angeles prosecutor's failure to indict in one case would be "political suicide").
235
See Carlos Berdejo & Noam Yuchtman, Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing, 95
Rev. Econ. Stat. 741, 754-55 (2013) (finding that elected judges in Washington state assign longer sentences in years closest to elections);
Sanford C. Gordon & Gregory A. Huber, The Effect of Electoral Competitiveness on Incumbent Behavior, 2 Q.J. Pol. Sci. 107, 133 (2007)
(comparing partisan and nonpartisan judicial elections in Kansas and finding strong effects on sentencing when judges in partisan elections
expect or face challengers). See generally, Jed Handelsman Shugerman, The People's Courts (2012) (providing a history of elected judges).
236
For a knowledgeable account of the U.S. Justice Department's traditions of professionalism that mostly minimize political influence in
charging decisions, see generally Samuel W. Buell, Capital Offenses: Business Crime and Punishment in America's Corporate Age (2016).
But see Gordon, supra note 214; cf. Scott Ashworth, Electoral Accountability: Recent Theoretical and Empirical Work, 15 Ann. Rev. Pol.
Sci. 183, 183-201 (2012) (surveying theoretical and empirical research into the connection between political accountability and policy
decisions).
237
See, e.g., In re Hickson, 2000 PA Super 402, P 41 (finding that private prosecutions "constitute[] a recognition by the legislature that the
office of the district attorney should be subject to a system of checks and balances"); In re Piscanio, 344 A.2d 658, 660-61 (Pa. Super. Ct.
1975) ("The judge's independent review of the complaint checks and balances the district attorney's decision and further hedges against
possibility of error.").
238
Outside the United States, prosecution agencies are commonly under a politically accountable justice minister or attorney general, whose
political judgment, in principle, operates only at the level of broad policy and should not interfere with specific case decisions. See, e.g.,
Prosecution of Offences Act 1974, § 2(5) (Act No. 22/1974) (Ir.) http:/
/www.irishstatutebook.ie/eli/1974/act/22/section/2/enacted/en/index.html ("The Director [of Public Prosecutions] shall be independent in the
performance of his functions."). Australia's Office of the Commonwealth Director of Public Prosecutions, whose director is appointed for a
seven-year term, is an independent prosecution service within the Commonwealth Attorney-General's portfolio, but functions independently
of the Attorney-General and the political process. Director of Public Prosecutions Act 1983 (Cth) (Austl.) (as amended 2012); About Us,
Commonwealth Dir. Pub. Prosecutions,http://www.cdpp.gov.au/AboutUs (last visited Oct. 30, 2018); see also Mark Findlay et al., Australian
Criminal Justice 125-26 (1994) (describing "the development of prosecutorial independence from the executive"). Canada's Public
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professional, rival, and politically accountable executive branch officials.
The insight of the U.S. approach is that, for many types of [*914] underenforcement, federal oversight combined with
democratically responsive local prosecutors can perform the same function as judicial review and private prosecution of
correcting bad declination decisions driven by institutional allegiances, cultural biases, and favoritism. Politically responsive
criminal justice sometimes works relatively well at changing prosecution practices to serve victim interests that majorities or
strong interest groups embrace. Politics has brought meaningful reforms to prosecution for drunk driving, for example, and it
has led to improvements, if still insufficient ones, regarding domestic violence and sexual assault crimes. But political
accountability has not worked as well to remedy underenforcement when key victim groups have less public sympathy, or key
defendant groups, such as police, have a lot. Redundant prosecution authority, in the form of federal oversight, has a similarly
mixed track record. Federal law has done much to compensate for state underenforcement of public corruption offenses. It has
made significant but less ambitious and successful commitments in the context of police violence. And federal authorities so far
have attempted to reinforce state sexual assault enforcement only at the margins.
The track record of the U.S. responses to underenforcement, then, is mixed. But it is not clear that the alternative safeguards
that predominate elsewhere are, on their own, clearly superior. Private prosecution is little use for victims with few financial
resources or who are legally unsophisticated. Judicial review of declination can be exceedingly deferential, especially if statutes
and regulations do not provide courts with clear criteria against which to assess prosecutorial decision making. Jurisdictions
strongly committed to reducing unjustified declinations would combine most or all of these mechanisms. U.S. jurisdictions
arguably have a history that should have made them especially likely to do so. States once permitted and relied on private
prosecutions; judicial authority to review executive action, outside of prosecutor charging, is at least as robust here as in
England; the movement for crime victim rights was as effective here as anywhere. The failure to devise more comprehensive
safeguards suggests that certain specific pockets of underenforcement - involving police, marginalized victim groups, and
sexual assaults - are especially hard to remedy, regardless of readily available solutions.
Minnesota Law Review
Copyright (c) 2018 Minnesota Law Review Foundation
Minnesota Law Review
End of Document
Prosecution Service describes itself as "an independent prosecution authority." See About the Public Prosecution Service of Canada, Pub.
Prosecution Serv. Can., http://www.ppsc-sppc.gc.ca/eng/bas/dpp-dpp.html (last updated Apr. 4, 2018). The Canadian Supreme Court affirms
the prosecutor's wide discretion with reference to his political independence. See Krieger v. Law Society of Alta., [2002] 3 S.C.R. 372, para.
32 (Can.) ("The independence of the Attorney-General, in deciding fairly who should be prosecuted, is … a hallmark of a free society."
(quoting In re Hoem v. Law Soc'y of B.C. (1985), 63 B.C.L.R. 36 (Can. B.C. C.A.))).
239
For a sample of longstanding criticisms of unregulated prosecutorial discretion, see Davis, supra note 123; Roscoe Pound, Criminal
Justice in America 183 (1930) (criticizing the "intimate connection of the prosecutor's office with politics."); James Vorenberg, Decent
Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1554-60 (1981) (arguing that the scope of prosecutorial discretion is too broad). See
generally Raymond Moley, Politics and Criminal Prosecution (1929) (criticizing political influence over prosecution).
DAVID SCHOEN