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103 Minn. L. Rev. 844, *899

This basic overview - drawn from a substantial scholarly literature - paints a somewhat contradictory picture. On the one hand, the primary story is one of longstanding underenforcement - a combination of explicit legal policies, practical evidence-gathering and proof challenges, and cultural biases resulted in a notoriously weak response to sexual assaults by state criminal justice systems. On the other hand, there is a story, over the last forty years or so, of wide-ranging success in achieving reforms on several fronts - substantive and procedural law, institutional design, and resource allocation - designed to improve enforcement capacity. In other words, U.S. jurisdictions made substantial progress against an ingrained tradition of underenforcement without turning to any model of enforcement redundancy - federalization, private prosecution, or judicial review. That is more than state justice systems were ever able to do with regard to local government corruption, where the remedy instead was the rise of federal criminal law enforcement.

And yet, few seem to consider this reform story a success. 188 The data on underreporting by victims, low arrest rates by police, and charging rates by prosecutors (along with the rape kit [*900] testing backlog) make it easy to view state criminal justice systems as failing to achieve adequate enforcement responses to sexual assaults despite the scope and gravity of the problem - 124,000 offenses reported to police in 2015, and 431,000 assault reports estimated by the National Crime Victim Survey. 189

This story of reform, its decidedly limited success, and the responses to that record all reveal insights about the prospects for redressing underenforcement through redundancy in this context. Intersecting feminist, victim rights, and rape-law-reform movements have achieved some remarkable reforms through the political process over the last four decades. U.S. criminal justice, like U.S. public law generally, is responsive to popular sentiment, well-organized reform movements, and interest groups. 190 But these movements never sought any mechanism of enforcement redundancy, and federal and state lawmakers never seriously considered one. Even now, when offense definitions, victim rights, evidentiary rules, and organizational changes in law enforcement agencies offer few plausible options for further improvement, there is effectively no sign of interest in private prosecution and judicial or administrative oversight. Instead, the sole focus of further innovation to address endemic underenforcement of sexual assault offenses is the federal government. And most federal policy - and policy proposals - stop short of expanding federal law to cover sexual assaults now within the jurisdiction solely of state courts. 191 A notable

124 Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (rejecting private plaintiff's challenge on federal equal protection grounds to state policy of prosecuting only married men for failures to pay child support, concluding "in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another"); Leeke v. Timmerman, 454 U.S. 83, 84 (1981) (extending Linda R.S. to hold that private citizens have "no cognizable interest" in process by which magistrates decide whether to issue warrants on criminal complaints); cf. Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382-83 (2d Cir. 1973) (rejecting purported crime victims' request that court order prosecutors to charge).

125 See, e.g., Colo. Rev. Stat. § 16-5-209 (2017) ("The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If ... the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so."); Mich. Comp. Laws § 767.41 (2017) ("If, upon examination, the court is not satisfied with the [prosecution's] statement, the prosecuting attorney shall be directed by the court to file the proper information and bring the case to trial."); Neb. Rev. Stat. § 29-1606 (2017) ("If, upon such examination, the court shall not be satisfied with the [prosecution's] statement, the county attorney shall be directed by the court to file the proper information and bring the case to trial."); Pa. R. Crim. P. 506(B)(2) (requiring prosecutors to give reasons for declining to prosecute a criminal complaint filed by a private party, and permitting "the affiant [to] petition the court of common pleas for review of the decision"); In re Hickson, 2000 PA Super 402, PP 12-19 (describing victim standing to seek judicial review of decisions not to prosecute based on private complaints); see also State ex rel. Clyde v. Lauder, 90 N.W. 564, 569 (N.D. 1902) ("The more modern rule, and that adopted in this state, is the reverse of that at common law. In this state, while the prosecutor may file with the court his reasons for not filing an information ... it is the province of the court to determine the ultimate question whether the case shall be prosecuted or dismissed."); cf. Olsen v. Koppy, 593 N.W.2d 762, 765-67 (N.D. 1999) (citing Lauder, 90 N.W. 564, with approval).

126 See Cal. Penal Code § 1385 (West 2016) ("The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in the furtherance of justice, order an action to be dismissed."); Darryl K. Brown, Free Market Criminal Justice 35-37 (2016); Valena E. Beety, Judicial Dismissals in the Interest of Justice, 80 Mo. L. Rev. 629, 640-43 (2015) (advocating for a shift in court-reviewed dismissals).

DAVID SCHOEN
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