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103 Minn. L. Rev. 844, *886

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

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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.

DAVID SCHOEN

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