Analysis of U.S. Prosecutorial Declination Oversight and Private Prosecution Mechanisms

Page 19 of 42 103 Minn. L. Rev. 844, *882 [*883] This is a stark contrast with European justice systems, but U.S. jurisdictions are not alone in shielding prosecution decisions from judicial oversight. Aside from England and Wales, courts in other common law jurisdictions - notably Canada and Australia - take roughly the same approach and defer to prosecutorial charging discretion. !76 5. Summary of Declination Oversight Both private prosecution and review procedures provide a kind of redundancy that checks prosecutorial declination decisions, and both can do so im service of public interests as well as victims’ private interests. Both options have some capacity to challenge prosecutorial judgments affected by political or personal biases, institutional allegiances (especially between police and local politicians), or other illicit sources of favor or disfavor. As one commentator put it in the English context, private prosecution authority recognizes that victims possess some capacity to be independent "assessors of the evidence as well as the public interest." !*? Review procedures enable judges and supervisory [*884] officials to do much the same thing, without the cost barriers for victims posed by private prosecutions. (Although it may well be that poorer victims are less likely even to petition for review, especially if they lack legal counsel to press their review requests.) Why, then, have U.S. jurisdictions so uniformly rejected both options? As noted, both racial politics and the power of common law tradition are probable contributing reasons. '3° Another is the singular choice of most state justice systems to make prosecutors locally elected officials, which does much to prevent kinds of over-and underenforcement disfavored by local majorities. That, in turn, likely reduces pressure for reforms that would improve other safeguards against decisions not to prosecute - especially decisions that cut against popular local preferences, which in many communities include rigorous 2016) (authorizing victims dissatisfied with public prosecutor to petition the court and granting courts the power to allow victim's attorney to take over as private prosecutor). 87 See 12 RL Gen. Laws$§12-4-1, 12-4-2, 12-4-6, 12-12-1.3 (2017); Cronan ex rel. State v. Cronan, 774 A.2d 866, 871 (RI. 2001) (approving private misdemeanor prosecution for assault under state statutes). 88 See State v. Martineau, 808 A.2d 51, 54 (N.H. 2002); see also State by Tucker v. Gratta, 133 A.2d 482, 482 (N.H. 1957) (holding that state prosecutors retain power to dismiss private criminal complaints). 89 See, e.g., N.C. Gen. Stat.§$15A-303, 304 (2016); Moose, 313 S.E.2d at 512-13 (requiring that the public prosecutor remain in continuous control of the case). Scattered marginal remnants of private enforcement may remain elsewhere, such as an Oklahoma statute providing that prosecutions for adultery (a felony) may be "commenced and carried on against either of the parties to the crime only by his or her own husband or wife." Okla. Stat. tit. 2] § 871 (2017) ("Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife as the case may be, or by the husband or wife of the other party to the crime."). °° The Royal Commission on Criminal Procedure, 1981, Cmnd. 8092, P 7.47 (UK); see also Gouriet v. Union of Post Office Workers [1978] AC (HL) 435 at 477 (Eng. and Wales) (private prosecutions are a "valuable constitutional safeguard against inertia or partiality on the part of the authority"); cf. Manikis, supra note 66, at 67, 71 (describing review as a means to correct prosecution errors). 91 In re Hickson, 2000 PA Super 402, PP 22, 41; see also In_re Piscanio, 344 A.2d 658, 660-61 (Pa. Super. Ct. 1975) ("The judge's independent review of the complaint checks and balances the district attorney's decision and further hedges against possibility of error."). 9% United States v. Armstrong, 517 U.S. 456, 461-64 (1996). 3 Arguments for strengthening the doctrine to make claims easier to pursue are common. See, e.g., Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 606 (1998) (discussing use of the equal protection doctrine but challenging current precedent). °4 Grand juries remain a fixture in the federal system and in roughly half the states. See Sara Sun Beale et al., Grand Jury Law and Practice § 1:5 (2d ed. 2017) (describing grand jury status and rules in states and noting states that have partially or wholly abolished grand juries); Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 274-75 (1995) (noting difficulty of getting data on grand jury screening and offering reasons why grand juries rarely reject requests for indictments). To extend the comparison, public officials (judges) have a long track record of doing the same task that trial and grand juries do. That available substitute did not lead to calls for juries’ abolition. Yet the availability of public prosecutors as replacements led to the U.S. jurisdictions to abolish private prosecutors. DAVID SCHOEN HOUSE_OVERSIGHT_016528