Federal Oversight of State Prosecutions and Dual Sovereignty Doctrine

Page 21 of 42 103 Minn. L. Rev. 844, *886 federal enforcement practice, but this is less common.) !*4 State prosecutors’ decisions, at least for certain categories of serious wrongdoing, face de facto review by federal executive officials. Or so the law for a century has permitted. The constitutional double jeopardy doctrine since at least 1922 has recognized the "dual sovereignty" of state and federal governments. Notwithstanding the guarantee that no person shall "be subject for the same offence to be twice put in jeopardy," the Double Jeopardy Clause has been understood not to preclude federal prosecutors' power to charge a person who has previously been prosecuted by state officials for the same criminal conduct, and federal prosecutions likewise do not limit subsequent state enforcement efforts. !5° By granting certiorari in United States v. Gamble 136 this term, the U.S. Supreme Court is set to revisit this doctrine, which provides the foundation for the federalism-based check on underenforcement. Federal prosecutors do not attempt to keep an eye on all state prosecution decisions and practices, and federal criminal [*887] law is not fully coextensive with state criminal law; significant gaps are discussed in the next Part. But the substantive redundancy is considerable. For some areas of dual authority - such as drug crimes, fraud, child pornography, and human trafficking - federal and state agencies often coordinate investigative efforts and divide up prosecution responsibilities. But federal Justice Department policy to exercise oversight of state enforcement practices in certain categories of crime is deliberate and formalized. Notable examples include state and local government corruption, excessive use of force and other wrongdoing by police, and other criminal civil rights violations. 1!37 Especially in these areas, federal prosecutors assess whether to file their own charges in cases in which their state counterparts declined to charge, charged too leniently, or in which they failed to win appropriate convictions. Federal prosecution in the wake of state declination is hardly the norm - it should not be, if state prosecutors decline cases for the right reasons !38 139 - but federal officials do remedy meaningful enforcement gaps left by state prosecutors. Functionally, this inter-governmental model of review resembles intra-agency administrative review with greater independence between initial decision makers and subsequent reviewers. Oversight of state prosecutors rests with the policy [*888] priorities of federal executive branch officials. The Justice Department has well-established written guidelines for much of this oversight activity, although they are not formally binding. '4° Although the Justice Department bureaucracy has a stronger 102 On Scotland, see Victims and Witnesses (Scotland) Act 2014, (ASP 1) § 4 ("The Lord Advocate must make and publish rules about the process for reviewing, on the request of a person who is or appears to be a victim in relation to an offence, a decision of the prosecutor not to prosecute a person for the offence."); Crown Office & Procurator Fiscal Serv., Lord Advocate's Rules: Review of a Decision Not to Prosecute - Section 4 of the Victims and Witnesses (Scotland) Act 2014, at 5 (2015), http://www.copfs.gov.uk/images/Documents/Victims_and_Witnesses/Lord%20Avocates%20Rules%20-% — 20June%2015%20v2.pdf. On France, see Novokmet, supra note 70, at 101-02. In addition to judicial review, England also provides administrative review. See Dir. of Pub. Prosecutions, Victims' Right to Review Guidance 6-9 (2016), /ttps:/Avww.cps.gov.uk/sites/default/files/documents/publications/vrr guidance_2016.pdf (noting that victims may seek administrative review of decisions not to prosecute, which are checked in a local CPS office by a prosecutor who has not been involved with the case previously, then at the victim's request in a review by the Appeals and Review Unit); Victims' Right to Review Scheme, Crown Prosecution Serv., https:/Awww.cps. gov.uk/legal-guidance/victims -right-review-scheme (last updated July 2016). Decisions are reviewed as questions of law - that is, whether they are correct as a matter of law, even if reasonable.R v. Killick [2011] EWCA (Crim) 1608, [2012] 1 Crim. App. 10 [48] (recognizing victim right to review under EU Directive art. 10, and noting original prosecution decision was reasonable but wrong); see also Keir Starmer, Human Rights, Victims and the Prosecution of Crime in the 21st Century, Crim. L. Rev. 777, 783-84 (2014) (describing aims of review policy). 103 See Carlin v. Dir. of Pub. Prosecutions [2010] IESC 14, 3 IR 547, at P 12 (Ir.) ("If ... it can be demonstrated that [the DPP] reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a court." (quoting State (McCormack) v. Curran, [1987] ILRM 225, 237 (Ir.))); Office of the Dir. of Pub. Prosecutions, The Role of the DPP 16 (2015), https://www.dppireland.ie/filestore/documents/victims_ directive_publications/ENGLISH_-_Role_of_the DPP.pdf (noting crime victims, among others, can seek DPP review of prosecutors' decisions). On Northern Ireland, see Pub. Prosecution Serv. for N. Ir., Victims of Crime: Requesting a Review of a Decision Not to Prosecute 2-4 (2017), https ://www.ppsni.gov.uk/Branches/PPSNI/PPSNI/Files/Documents/Rquests%20F or% 20Review/Victims%200f%20Crime%20- %20Requesting%20a%20Review™s 200f%20a%20Decision%20not%20to%20Prosecute%20(October%202017 ).pdf. DAVID SCHOEN HOUSE_OVERSIGHT_016530