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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. °* 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 im this
[victims' rights] chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under
his direction." ©? State statutes manifest the same policy in various ways, such as by prohibiting legal remedies for violations
of participation rights they create. °+ 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. ® But state and federal policy rejects enlisting victims as "agents of accountability" for public
prosecution. °°
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." ©” 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. ° 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 LE. 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:/Avww.politico.com/storv/2014/12/republicans-irs-
regulations-1 13484 (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), hitp:-//sentencing.tvpepad.com/sentencing law_and_policy/2015/week5 I/index.himl (describing H.R. 4660, enacted as part of
a spending bill, which prohibited spending of Justice Department funding to hinder state medical marijuana policies).
36 See, €.2., 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:/Avwww 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), Atips://www.nytimes.com/2016/04/18/nyregion/spare-a-swipe-new-yvork-city-eases-rules-for-a-
subway-request.himl (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),
hittps://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/SB 100008723 963904 44226904577559243414878630 (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),/ttp-/norml.org/news/2003/09/1 8/seattle-voters-approve-
initiative-making -marijuana-enforcement-city-s-lowest-priority.
DAVID SCHOEN
HOUSE_OVERSIGHT_016520