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103 Minn. L. Rev. 844, *900
exception is Professor Donald Dripps's current proposal to expand federal criminal law to cover most sexual assault offenses -
precisely the model of federal-state enforcement redundancy that [*901] exists now for drug crimes, corruption, police
violence, and much else. !°? But otherwise, existing policies and reform proposals emphasize more modest, although
meaningful, federal efforts to improve state justice administration through, for example, funding grants (as for rape kit testing)
193 and occasionally by litigation to force institutional reforms in local agencies.
In fact, federal law empowers the U.S. Justice Department to sue local police departments and other agencies, and authorizes
structural injunctions to remedy systemic misconduct. !°4 But the Department's use of this authority has largely focused on
police violence rather than sexual assault underenforcement. !9° Various local law enforcement agencies have entered consent
decrees under which they adopt institutional and policy reforms to reduce patterns of misconduct, even though federal
intervention 1s hampered by the paucity of data on police misconduct, limited federal resources, and at times the political
commitment of the presidential administration. !°° More to the point here, in only a few cases have federal officials targeted
local agencies' inadequate responses to sexual assault. !?7
In sum, and in sharp contrast to public corruption, the problem of underenforcement in the sexual assault context reveals the
resistance, and cost, of U.S. criminal justice to institutional structures of enforcement redundancy. Having ruled out judicial
review and private prosecution from the imaginations of reform-movement activists, the only alternative is the one that U.S.
criminal justice always favors - federalism. Where federal criminal law takes on an enforcement agenda, it is usually effective.
198 Where tradition, politics, jurisdictional limits, or policy [*902] choices restrict the reach of federal law, as with sexual
assault, the U.S. justice system is largely out of options. States were willing to change substantive and procedural law in hopes
of improving rape prosecutions, but not to infringe prosecutors' monopoly control of charging by expanding modes of judicial,
administrative, or private-party oversight.
3. Police Violence
27 New York granted courts nolle prosequi authority in 1829, during its era of private and judicially appointed prosecutors. McConville &
Mirsky, supra note 81, at 35 (citing 1829 N.Y. Rev. Stat. tit. IV, § 68, p.730 & § 54. p.726). For a broad overview of state nolle pros laws, see
Annotation, Power of Court to Enter Nolle Prosequi or Dismiss Prosecution, 69 A.L.R. 240 (1930). The federal rule is Fed. R. Crim. P. 48(a).
Note that these rules give judges implicit power to compel prosecutors to litigate charges they would rather dismiss. For decisions insisting on
judicial deference, see, for example, Genesee Prosecutor v. Genesee Circuit Judge, 215 N.W.2d 145, 147-48 (Mich. 1974). For similar
examples in federal cases, see United States v. Smith, 55 F.3d 157, 159-60 (4th Cir. 1995); United States v. Perate, 719 F.2d 706, 710-11
(4th Cir. 1983); United States v. Smith, 853 F. Supp. 179, 183-84 (M.D.N.C. 1994); Dawsey v. Gov't of Virgin Islands, 931 F. Supp. 397,
402-04 (D.V.J. 1996). A standard explanation for deference is that judges lack means to compel prosecutors to litigate charges at trial. See,
e.g., United States v. Greater Blouse, Skirt & Neckwear Contractors Ass'n, 228 F. Supp. 483, 489-90 (S.D.N.Y. 1964) ("Even were leave of
Court to the dismissal of the indictment denied, the Attorney General would still have the right to ... , in the exercise of his discretion, decline
to move the case for trial. The Court in that circumstance would be without power to issue a mandamus or other order to compel prosecution
of the indictment, since such a direction would invade the traditional separation of powers doctrine."). But judges have options short of
mandamus. Presumably they could hold prosecutors in contempt for failures to appear, as they could for all other attorneys. And whenever
prosecutors retain an interest charges they seek to dismiss, judges could incentivize them by ruling that failure to litigate charges results (as
for civil parties) in forfeiture of the claim, or dismissal with prejudice.
28 For an overview of Canadian law on this point, see Mark Phillips, The Public Interest Criterion in Prosecutorial Discretion: A Lingering
Source of Flexibility in the Canadian Criminal Process?, 36 Windsor Rev. Legal & Soc. Issues 43 (2015) (describing case law requiring great
judicial deference to prosecutorial discretion). For Australia cases on prosecutorial discretion, see Miller v Commonwealth Dir. of Pub.
Prosecutions [2005] 142 FCR 394, 399-400 (Austl.).
29 Manikis, supra note 60, at 29. In addition, many nineteenth-century state courts justified privately funded prosecutions by citing the
public value of these contributions to supplement underfunded district attorney offices. See Ireland, supra note 83, at 47, 49-51 (citing and
quoting multiple state courts). Private prosecutors may have different reasons to proceed when despite comparatively low odds of winning a
conviction. Some of those motivations, at least, can be public-regarding. Avlana Eisenberg makes the point that prosecuting hate crimes
cases, for example, can have expressive and educative value that justifies pursuing well-grounded cases despite skeptical juries. Eisenberg,
supra note 45, at 893-95, 902-18.
130 For discussions on the common law aversion to private prosecution, see Ireland, supra note 83 and for a review of the impact of racial
tensions on private prosecution, see Blackmon, supra note 98.
DAVID SCHOEN
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