Redundant Federal‑State Criminal Prosecution as a Check on State Under‑enforcement

Page 20 of 42 103 Minn. L. Rev. 844, *884 prosecution of excessive police uses of force. Finally, another institution responds to some of the same underenforcement problems that private prosecution and judicial review could address - redundant prosecution authority in a federal system. C. Federalism Safeguards on Prosecutorial Discretion The scope of the U.S. federal crimmal code expanded vastly in the twentieth century, as did the federal government's institutional capacity to enforce that code and its regulatory authority more generally. The result has been a distinctive form of criminal justice federalism: federal enforcement authority wholly overlaps the territorial scope of state criminal law, and the federal code substantially overlaps much of what is covered in state criminal codes. The resulting structure of redundant federal-state authority has evolved into a means - unusual even among federal nation-states - to second-guess and effectively trump state prosecutors’ declination decisions without empowering courts or private parties. No other nation built on a federal model incorporates nearly [*885] the same degree of redundancy between state and federal justice systems. !3! The more common model of criminal justice federalism is found in Canada and Germany: each has a single national criminal code that is administered by separate state-level prosecution agencies and court systems. !3? Other federal states follow the U.S. model and have separate criminal codes, prosecution agencies, and court systems in each state as well as for the federal government. Australia follows this model, but the scope and jurisdiction of Australian federal criminal law is much more limited than is U.S. federal law; federal crimes are largely confined to offenses that implicate distinct federal interests - it is probably closer to U.S. federal criminal law in 1910 than 2010. The result is that in Australia federal criminal law enforcement overlaps much less with state criminal law. !73 The broad redundancy provided by U.S. federalism enables federal prosecutors to serve as checks on underenforcement by state prosecutors, at least for some large and important categories [*886] of crime. In effect, federal prosecutors can review the declination decisions of state prosecutors - as well as the adequacy and success of their prosecutions - and then decide whether to file federal charges in cases that their state counterparts declined to pursue, charged too leniently, or in which they failed to win a conviction or sufficiently harsh sanctions. (In theory state prosecutors conduct the same oversight over much of °° See George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 671-96 (1997) (discussing the impact of racial policies in post-Civil War jury and court processes). %6 Tam aware of no historical research on African American private prosecutors, and I have found no evidence of any in case law or general accounts of private prosecutions. %7 See, e.g., Fisher, supra note 95, at 684 n.514 ("Denial to the freedman of the power to testify in court against the white man ... strikes not at a mere civil franchise, but at a natural right - the right of protecting life and property. When a white man may take a freedman's life or property with impunity, if no other white men be present, the freedman has no security for either." (quoting The Progress of Reconstruction, N.Y. Times, Oct. 3, 1865, at 4)). °8 When Southern states were compelled to grant African American citizens litigation rights, they imposed strict conditions, permitting African Americans the right to testify only when the crime victim (or the opposing civil litigant) was African American. Id. at 684. Those limitations likewise restricted African Americans’ private prosecution authority, although in many places racial customs, backed by the prospect of racial violence, was probably discouragement enough. See generally Douglas A. Blackmon, Slavery by Another Name: The Re- Enslavement of Black Americans from the Civil War to World War IT (2008) (discussing history of African Americans' distrust of America's Judicial system); Nicholas Lemann, Redemption: The Last Battle of the Civil War (2007) (exploring incidents after the Civil War and the impact on politics during the Reconstruction Era). °° Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 49-51 (2004). Northern states were not models of race-blind democracy. Connecticut voters in 1865 rejected a proposal to enfranchise African American citizens in their state. Fisher, supra note 95, at 685. 100 See Council Directive 2012/29, art. 11, 2012 OJ. CM 315) 57 (EC) (EU), Attp:/eur-lex.europa.eu/legal- content/EN/TXT/? uri=CELEX:32012L0029 (requiring member states to give crime victims means to challenge non-prosecution decisions, either through private prosecution or a right to review). 101 See FRA Report, supra note 72 (summarizing policies of EU member states and noting that only Cyprus and Malta provide victims neither right). DAVID SCHOEN HOUSE_OVERSIGHT_016529