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103 Minn. L. Rev. 844, *889

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

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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.

DAVID SCHOEN

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