Academic analysis of federal vs state oversight and prosecutorial discretion in corruption, police violence, and sexual assault cases

Page 24 of 42 103 Minn. L. Rev. 844, *890 But that distinction has an upside: private prosecution and judicial review do not work in cases in which there is no direct victim - or in which private parties do not realize they have been victimized, as in some cases of large-scale corporate or government fraud, or in some cases of child pornography. !47 Federal prosecutors, however, take on just such cases as a core part of their enforcement agenda. '48 On the other hand, federal oversight is limited in other important respects: federal criminal enforcement authority is not fully coextensive with state criminal law; notably, for example, it provides effectively no enforcement redundancy for ordinary domestic violence, rape, and other sexual assault offenses. '4° [*891] B. Three Kinds of Offenses: Corruption, Police Violence, Sexual Assault Consider the efficacy for these oversight options with respect three types of offenses: local fraud or corruption, excessive use of force and other wrongdoing by local law enforcement officers, and sexual assaults. These three classes of offenses have in common that they have proven to be especially vulnerable to underenforcement. At the same time, the differences in how U.S. criminal justice institutions have responded to underenforcement in each area highlight the efficacy and limits of the federalism-based enforcement redundancy compared to the alternatives - both those U.S. jurisdictions reject (private prosecution and judicial review) and a fourth, unique strategy they embrace: politically accountable prosecutors. 1. Public Corruption Corrupt conduct by government officials is a category of wrongdoing especially likely to suffer from underenforcement, for obvious reasons: we depend on one set of public officials, prosecutors and investigative agents, to stop wrongdoing by other public officials - as well as by colleagues within their own ranks. Professional and even personal relationships often exist between these groups of public officials. Even when the boundaries between lawful and unlawful conduct are clear and law 112 R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [24] (Eng. and Wales) (summarizing three grounds for review and citing R v. DPP [1995] (QB) 1 Crim. App. 136 (Eng.)); R (Guest) v. DPP [2009] EWHC (Admin.) 594, [2009] 2 Crim. App. 26, at P 34 (Eng. and Wales); R v. General Council of the Bar [1990] 3 All ER 137 (QB), at 137-38 (Eng. and Wales). For an overview, see Ashworth & Redmayne, supra note 111; Christopher Hilson, Discretion to Prosecute and Judicial Review, Crim. L. Rev. 739 (1993) (examining case law regarding prosecution decisions and subsequent judicial review); Appeals: Judicial Review of Prosecutorial Decisions, CPS, https://www.cps.gov.uk/legal-guidance/appeals -judicial-review-prosecutorial-decisions (last updated May 21, 2009). The European Convention on Human Rights may impose affirmative obligations on member states that certain instances require prosecutions, or that more generally require a state to maintain a criminal justice system that provides sufficient protection to citizens. English courts found that their established standards of review of noncharging decisions, based in domestic law, have been held sufficient to meet any such obligation. See R (FB) v. DPP [2009] EWHC (Admin.) 106,[2009] Crim. App. 38, at P 64 (Eng. and Wales) (discussing state obligations under Articles 2 and 3); see also R v. Killick [2011] EWCA (Crim.) 1608, [2012] 1 Crim. App. 10 at [48] (confirming victims' right to review). Judges may require disclosure of internal prosecution documents, but they assess the lawfulness of nonprosecution without examining the underlying evidence. See R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [24] (Eng. and Wales) (noting use of redacted investigative report and case notes from CPS but disavowing evaluation of evidence). 113 See R v. DPP [2001] QB 330 at 337 (Eng. and Wales); R v. Metro. Police Commr. [1958] 2 QB 118, at 123-25 (Eng. and Wales); Ashworth & Redmayne, supra note 111, at 221-22. Decisions by U.S. courts give no special solicitude to instances of nonprosecution in the wake of injuries or deaths caused by prison guards or other law enforcement officials. See, e.g., Leeke v. Timmerman, 454 U.S. 84, 85-87 (1981) (rejecting state prison inmates! federal civil claim alleging bad faith by state officials to block issuance of arrest warrants against guards on allegations of unnecessary beatings during prison uprising); Jnmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382-83 (2d Cir. 1973) (rejecting request, on behalf of inmates injured or killed by state prison guards in the wake of a prison riot, that federal courts compel state and federal prosecutors to charge guards, reaffirming that prosecutorial discretion is immune to judicial review). To facilitate review, English prosecutors in some circumstances must provide public reasons for choosing not to file charges. See Jordan v. United Kingdom (No. 2) [2003] 37 Eur. Ct. H.R. 52 PP 82-86, 122-23, 142-45 (holding that under article 2 of the European Convention on Human Rights prosecutors should give reasons explaining a decision not to bring criminal charges after an investigation into a death caused by police shootings); see also R v. DPP [2001] QB 330, at 347 (Lord Bingham, CJ) (Eng. and Wales) ("In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case [of non-prosecution]: to meet the reasonable expectation of interested parties that either a prosecution will follow or a reasonable explanation for not prosecuting be given ... ."); EU Council Directive 2012/29, supra note 100, art. 6, at 67 (requiring explanations to victims that can be subjected to review). Irish victim rights laws that took effect in 2015 now require prosecutors to provide reasons to victims for declining to prosecute. See Mark Hilliard, New Laws on Rights of DAVID SCHOEN HOUSE_OVERSIGHT_016533