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103 Minn. L. Rev. 844, *911

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CONCLUSION

All justice systems suffer from pockets of unjustified, even pernicious, underenforcement. All recognize that public prosecutors can be vulnerable to biases and institutional interests that distort enforcement decisions. Especially in recent decades, nearly all have adopted mechanisms to address those risks. Outside the United States, victim rights legislation has included provisions directed at unjustified decisions not to prosecute. In other common law countries and in Europe, most victims may now either seek independent review of prosecutors or initiate prosecutions on their own. Independent review keeps the safeguard against underenforcement in public hands while strengthening the principle that charging decisions should be nonpolitical and ministerial in nature. Victim rights reforms in general manifest a judgment that modern criminal justice had focused excessively on public interests and unduly neglected victims' private interests in criminal prosecutions. Authorizing victims to challenge declination decisions extends this idea by recognizing victims' private stake in those decisions and enabling victims to serve the public interest in preventing unjustified failures to prosecute. 237

Virtually all U.S. jurisdictions reject both of those strategies. 238 And rather than insulate their prosecutors from political [*913] influence, most states rely on electoral politics for oversight of prosecution practices. Instead, the U.S. model opts for duplicative federal-state jurisdiction against a background of politically attuned state prosecutors. Both this federalism model of redundant prosecutorial authority - which may be reduced this term by the Supreme Court's decision in Gamble - and the model of politically responsive prosecutors have proven effective at redressing some types of underenforcement. Both serve some victims' interests without taking the form of victim rights. And both reflect a preference for political over legal safeguards against biased or ill-conceived uses of prosecutorial discretion.

American criminal justice is more sanguine than other legal systems about the downsides of prosecutors' electoral accountability and attention to majoritarian sentiments. U.S. prosecutors' democratic legitimacy works against arguments for more formal oversight or regulation. Even against the potent political power of victims' rights movements, unfettered executive charging discretion has proven immutable. 239 But federal prosecutors provide significant oversight, at least for some

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160 United States v. Alfisi, 308 F.3d 144, 155-56 (2d Cir. 2002) (Sack, J., dissenting) (arguing that payments to federal officials prosecuted under 18 U.S.C. § 201 caused no clear harm or "corruption"); Mills & Weisberg, supra note 150, at 1373-74 (discussing the role of fiduciary duties in criminal liability); id. at 1377, 1386-90, 1404-05 (discussing uncertainty of "harm" in some contexts); id. at 1395-1400 (discussing honest services); Lex Hemphill, Acquittals End Bid Scandal that Dogged Winter Games, N.Y. Times, Dec. 6, 2003, at D1 (reporting a federal district judge's criticism of the prosecution, saying "in his 40 years of working in the criminal justice system, he had never seen a case so devoid of "criminal intent or evil purpose"').

161 For Supreme Court decisions rejecting broad applications of federal anti-corruption statutes, see generally McDonnell v. United States, 136 S. Ct. 2355 (2016) (reversing the former Virginia Governor's conviction for honest-services fraud and extortion); McNally v. United States, 483 U.S. 350 (1987) (reversing the conviction of state officials and holding that federal mail fraud statute, 18 U.S.C. § 1341, does not apply to schemes to defraud state citizens of the intangible "right to have the Commonwealth's affairs conducted honestly"). As a matter of statutory interpretation, the Court requires a "clear statement" that Congress intends a federal criminal statute to duplicate a state crime and thereby "effect a significant change in the sensitive relation between federal and state criminal jurisdiction." United States v. Bass, 404 U.S. 336, 349-50 (1971); see also Rewis v. United States, 401 U.S. 808, 811-12 (1971). But Congress has made such intent sufficiently clear for the Court in numerous statutes, including those at issue in Bass (18 U.S.C. § 1202(a), now codified at 18 U.S.C. § 922(g)) and in Rewis (18 U.S.C. § 1952). See, e.g., Perrin v. United States, 444 U.S. 37, 50 (1979) (finding that § 1952 reflects congressional intent "to alter the federal-state balance in order to reinforce state law enforcement").

162 See, e.g., Roderick M. Hills, Jr., Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-Federal Democracy?, 6 Theoretical Inquiries L. 113, 137-44 (2005) (arguing that federal enforcement of public corruption in local governments harms local styles of democracy); Harvey A. Silverglate & Emma Quinn-Judge, Tawdry or Corrupt? McDonnell Fails to Draw a Clear Line for Federal Prosecution of State Officials, 2016 Cato Sup. Ct. Rev. 189, 213-19 (2016) (arguing that the honest services statute is too vague to be fairly enforced); cf. John C. Coffee, Jr., Modern Mail Fraud: The Restoration of the Public/Private Distinction, 35 Am. Crim. L. Rev. 427, 430-31 (1998) (arguing that federal prosecutors rely on broad federal common law crimes in fraud cases against state and local public officials); Salkin & Ince, supra note 156, at 266-67 (describing aggressive federal enforcement of public corruption in the context of land

DAVID SCHOEN

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