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103 Minn. L. Rev. 844, *913

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

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