Academic analysis of prosecutorial discretion and underenforcement in the U.S. and Canada

Page 42 of 42 103 Minn. L. Rev. 844, *913 professional, rival, and politically accountable executive branch officials. The msight of the U.S. approach is that, for many types of [*914] underenforcement, federal oversight combined with democratically responsive local prosecutors can perform the same function as judicial review and private prosecution of correcting bad declination decisions driven by institutional allegiances, cultural biases, and favoritism. Politically responsive criminal justice sometimes works relatively well at changing prosecution practices to serve victim interests that majorities or strong interest groups embrace. Politics has brought meaningful reforms to prosecution for drunk driving, for example, and it has led to improvements, if still msufficient ones, regarding domestic violence and sexual assault crimes. But political accountability has not worked as well to remedy underenforcement when key victim groups have less public sympathy, or key defendant groups, such as police, have a lot. Redundant prosecution authority, in the form of federal oversight, has a similarly mixed track record. Federal law has done much to compensate for state underenforcement of public corruption offenses. It has made significant but less ambitious and successful commitments in the context of police violence. And federal authorities so far have attempted to reinforce state sexual assault enforcement only at the margins. The track record of the U.S. responses to underenforcement, then, is mixed. But it is not clear that the alternative safeguards that predominate elsewhere are, on their own, clearly superior. Private prosecution is little use for victims with few financial resources or who are legally unsophisticated. Judicial review of declination can be exceedingly deferential, especially if statutes and regulations do not provide courts with clear criteria against which to assess prosecutorial decision making. Jurisdictions strongly committed to reducing unjustified declinations would combine most or all of these mechanisms. U.S. jurisdictions arguably have a history that should have made them especially likely to do so. States once permitted and relied on private prosecutions; judicial authority to review executive action, outside of prosecutor charging, is at least as robust here as in England; the movement for crime victim rights was as effective here as anywhere. The failure to devise more comprehensive safeguards suggests that certain specific pockets of underenforcement - involving police, marginalized victim groups, and sexual assaults - are especially hard to remedy, regardless of readily available solutions. Minnesota Law Review Copyright (c) 2018 Minnesota Law Review Foundation Minnesota Law Review End of Document Prosecution Service describes itself as "an independent prosecution authority." See About the Public Prosecution Service of Canada, Pub. Prosecution Serv. Can., hitp://www.ppsc-sppc.ge.ca/eng/bas/dpp-dpp.himl (last updated Apr. 4, 2018). The Canadian Supreme Court affirms the prosecutor's wide discretion with reference to his political independence. See Krieger v. Law Society of Alta., [2002] 3 S.C.R. 372, para. 32 (Can.) ("The independence of the Attorney-General, in deciding fairly who should be prosecuted, is ... a hallmark of a free society." (quoting In re Hoem v. Law Soc'y of B.C. (1985), 63 B.C.L.R. 36 (Can. B.C. C.A.))). 239 For a sample of longstanding criticisms of unregulated prosecutorial discretion, see Davis, supra note 123; Roscoe Pound, Criminal Justice in America 183 (1930) (criticizing the "intimate connection of the prosecutor's office with politics."); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1554-60 (1981) (arguing that the scope of prosecutorial discretion is too broad). See generally Raymond Moley, Politics and Criminal Prosecution (1929) (criticizing political influence over prosecution). DAVID SCHOEN HOUSE_OVERSIGHT_016551