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103 Minn. L. Rev. 844, *879

[*880]

4. Oversight of Declination Decisions in State Justice Systems

State justice systems do not go as far as the federal system does, much less provide the kind of oversight or victim recourse that European systems now offer. And this is so despite the fact that all states have adopted substantial victims' bills of rights, nearly all of which include rights for victims to consult with prosecutors. Most make clear that the consultation right attaches only after the prosecutor decides to file charges. 120 Rights of administrative review are rare. 121 One reason for that is surely structural. The U.S. Department of Justice is a hierarchically organized agency within which all federal prosecutors operate, a structure that enables supervisory and quasi-independent review within the agency. But few states follow that model. Instead, prosecutors in most states are locally elected and operate [*881] autonomously from state justice departments or attorneys general, which generally exercise little, if any, oversight. 122 Administrative review of state prosecutors' charging decisions is simply not feasible without major reorganization of state justice systems.

That structural barrier probably explains why state prosecutors' decisions are functionally immune to administrative oversight, but the lack of judicial oversight has a different origin. In accord with common law tradition, state and federal courts have never meaningfully reviewed public prosecutors' noncharging decisions. 123 In particular, they have unambiguously rejected victims' claims of standing to challenge those decisions. 124 A few [*882] limited exceptions prove the rule. In cases of private criminal complaints filed by alleged victims, Colorado, Michigan, Nebraska, and Pennsylvania authorize judges to review public prosecutors' decisions not to charge. 125 Even when statutes grant courts the power to review (or even mandate review) of charging and dismissal decisions, state judges consistently have refused to scrutinize the merits of prosecutors' judgments. Many states have replaced the common law rule that gave prosecutors complete discretion to nolle prosequi (or dismiss) any criminal charge with statutes that require judges to confirm that non-prosecution is in the interest of justice. 126 Yet courts uniformly refuse to engage in meaningful review, inferring instead that those statutes require deference to prosecutors. 127

84 See Erikson v. Pawnee Cty. Bd. of Cty. Comm'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (finding no due process violation because private attorney assisting prosecution did not "control[] critical prosecutorial decisions"). The first states to prohibit privately funded prosecutors even under supervision of public prosecutors were Massachusetts, Michigan, and Wisconsin. See Commonwealth v. Gibbs, 70 Mass. (4 Gray) 146, 147-48 (1855); Meister v. People, 31 Mich. 99, 104-06 (1875); Biemel v. State, 37 N.W. 244, 248-49 (Wis. 1888). See also Ireland, supra note 83, at 49 (listing fifteen states that still approved privately funded prosecutors in 1900). Other states abolished this practice more recently. See State ex rel. Wild v. Otis, 257 N.W.2d 361, 365 (Minn. 1977) (holding that party has no right of private prosecution); State v. Harrington, 534 S.W.2d 44, 48 (Mo. 1976) (holding that a right of private prosecution should not be permitted); People v. Calderone, 573 N.Y.S.2d 1005, 1007 (N.Y. City Crim. Ct. 1991) (concluding that under New York law private prosecutions by interested parties or their attorneys present inherent conflicts of interest which violate defendants' due process rights); State v. Best, 186 S.E.2d 1, 4 (N.C. 1972) (noting that a public prosecutor must be in charge of all prosecutions).

85 See, e.g., N.J. Ct. R. 3:23-9 (permitting private prosecutor with approval of the public prosecutor and court); N.J. Ct. R. 7:8-7(b) (permitting private prosecutor for cross-complaints with court approval); State v. Harton, 296 S.E.2d 112, 113 (Ga. 1982) (private party not allowed to prosecute without state approval); State v. Moose, 313 S.E.2d 507, 512-13 (N.C. 1984) (stating that private attorneys may assist public solicitors where public solicitors retain control and management of prosecution); Cantrell, 329 S.E.2d at 25 (stating that private attorneys may assist commonwealth attorneys with the permission of the prosecutor and the court); 63C Am. Jur. 2d Prosecuting Attorneys § 12 (2018) (citing authority in some states that private attorneys may assist public prosecutors). For a state statute that apparently gives the "prosecuting witness" a right to pay a private attorney to assist the public prosecutor without the latter's consent, see Kan. Stat. Ann. § 19-717 (2017); see also John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 529, nn.71-72 (1994) (citing cases in majority of states allowing private prosecutors to assist in public prosecutions). Bessler identifies three states that "allow private prosecutors to participate without the consent or supervision of the district attorney," but in all three states, the public prosecutor initiated and litigated the criminal charge, while the private prosecutor assisted in the litigation as counsel to a victim. Id. at 529, n.71.

86 234 Pa. Code § 506 (2001); In re Private Criminal Complaints of Rafferty, 969 A.2d 578, 582 (Pa. 2009) (discussing the ability of a prosecutor to approve or disapprove of private complaints). Judges may authorize private counsel to take over as prosecutor upon finding that a district attorney has "neglected or refused to prosecute" a properly grounded charge. See 16 Pa. Stat. and Cons. Stat. Ann. § 1409 (West

DAVID SCHOEN
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