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103 Minn. L. Rev. 844, *906

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),

DAVID SCHOEN

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