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103 Minn. L. Rev. 844, *862

Under the criminal justice systems of all other major common law countries and nearly all European states, victims' rights also include authority to challenge prosecutors' decisions not to prosecute, either by a limited right to initiate prosecutions as private parties or by enabling victims to trigger judicial or [*863] administrative review of noncharging decisions. 62 By contrast, nearly every U.S. jurisdiction rejects these mechanisms. State and federal laws consistently avoid permitting victims any power to challenge or encroach on public prosecutorial authority. Federal law, for example, explicitly dictates that "nothing in this [victims' rights] chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." 63 State statutes manifest the same policy in various ways, such as by prohibiting legal remedies for violations of participation rights they create. 64 U.S. laws limit victims' participation to "non-dispositive" forms, such as providing information and personal statements to prosecutors, judges, and parole boards, which facilitates victims' influence on public officials' decisionmaking. 65 But state and federal policy rejects enlisting victims as "agents of accountability" for public prosecution. 66

In U.S. jurisdictions and elsewhere, the conceptual innovation of victims' rights laws was to recognize victims' distinct private [*864] interests in public criminal litigation. Most rights are specific entitlements to advance victims' broader, dignitary right to be "treated with fairness and with respect for the victim's dignity." 67 These provisions conceive of victims as "agents of individual rights" and "independent from systemic interests," and their interests can either conflict or align with those of law enforcement. 68 At the same time, victim participation rights can also be understood to serve a broader public interest in procedural outcomes, on the premise, for example, that prosecutors' and judges' decisions will improve with direct input from victims. Public decisionmaking risks substantive deficiency, and criminal process would be procedurally deficient, without due regard for victims' interests. Jurisdictions that empower victims to challenge non-prosecution decisions enable private parties themselves to address the problem of criminal law underenforcement. The remainder of this Section provides some detail on contemporary forms of private prosecution authority, their capacity to advance public as well as private interests, and reasons for its absence (or demise) in U.S. jurisdictions.

1. Private Prosecution in the Shadow of Public Prosecution

funding of these program areas was not provided"). In specific contexts as diverse as tax law and marijuana control, legislators intentionally limit enforcement budgets in order to restrict enforcement efforts. See Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. Rev. 757, 793-99 (1999) (discussing agency budget appropriations as a mechanism of congressional control over some agencies, such as the IRS, more than others, such as the FBI); Rachael Bade, Republicans Seek to Cripple IRS: The GOP's Moves Will Gut the Tax Agency, Advocates Warn, Politico (Dec. 11, 2014), https://www.politico.com/story/2014/12/republicans-irs-regulations-113484 (quoting a senator's aim to use "the power of the purse" to "push back on the regulatory overreach" of the IRS and EPA); Douglas A. Berman, Mixed Outcomes for Marijuana Reform Efforts in Latest Omnibus Spending Bill from Congress, Sent'g L. & Pol'y Blog (Dec. 16, 2015),http://sentencing.typepad.com/sentencing_law_and_policy/2015/week51/index.html (describing H.R. 4660, enacted as part of a spending bill, which prohibited spending of Justice Department funding to hinder state medical marijuana policies).

56 See, e.g., Crown Prosecution Serv., The Code for Crown Prosecutors 4 (2013), https://www.cps.gov.uk/sites/default/files/documents/publications/code_2013_accessible_english.pdf (providing guidelines for England and Wales). Familiar policies include declinations based on first-offender or drug-court diversion programs, the adequacy of civil penalties, a policy preference for public health responses to drug abuse, and - with regard to marijuana - federal deference to state policymaking. See Memorandum from James M. Cole, Deputy Attorney Gen. to U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013),http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (describing Justice Department policy not to prosecute marijuana dealers who comply with state law). For local examples, see Joseph Goldstein, Spare a Swipe? New York City Eases Rules for a Subway Request, N.Y. Times (Apr. 17, 2016), https://www.nytimes.com/2016/04/18/nyregion/spare-a-swipe-new-york-city-eases-rules-for-a-subway-request.html (describing a new policy "by the Manhattan district attorney's office to no longer prosecute people arrested for minor infractions such as swipe-begging, smoking in the subway, or taking up two seats on a subway car"); Greg LaRose, No Arrests for Pot Possession in New Orleans, Council Decides, Nola.com (Mar. 17, 2016), https://www.nola.com/politics/index.ssf/2016/03/marijuana_possession_city_coun.html (reporting city council vote to expand range of marijuana offenses for which police do not have to arrest offenders or charge as state criminal misdemeanors); Max Taves & Justin Scheck, San Francisco Police Ease Drug Enforcement, Wall St. J. (Aug. 1, 2012), https://www.wsj.com/articles/SB10000872396390444226904577559243414878630 (describing police treating drug possession crimes as a low priority in part because the chief prosecutor "looks at drug possession as a health issue"). Seattle city voters in 2003 approved Initiative 75, which established adult personal marijuana use as "Seattle's lowest law enforcement priority." Seattle Voters Approve Initiative Making Marijuana Enforcement City's "Lowest Priority," NORML (Sept. 18, 2003),http://norml.org/news/2003/09/18/seattle-voters-approve-initiative-making-marijuana-enforcement-city-s-lowest-priority.

DAVID SCHOEN
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