Academic analysis of prosecutorial resource constraints and victim‑rights reforms

Page 10 of 42 103 Minn. L. Rev. 844, *861 When resource constraints remain, however, they force officials to choose which cases get priority. That creates more opportunity for biases and favoritism to play a role in determining which cases to charge and which to forgo. That is especially so with crimes in which evidence development is more costly, so officials have to decide whether to invest scarce resources in those that require substantial investigative efforts. Both sexual assault and police violence cases often require larger-scale investments to develop evidence sufficient for prosecution. Failures to make those investments are common reasons for non- prosecution in both contexts. >? Il. MECHANISMS OF PROSECUTORIAL ACCOUNTABILITY For a range of reasons and across a range of contexts, public prosecutors’ failures to enforce criminal law have been of sufficient concern to lead contemporary justice systems to devise checks against unjustified underenforcement. Approaches take three basic forms: (1) limited authority for private parties to initiate or participate in criminal prosecutions; (2) independent review of initial non-prosecution decisions, upon petition from a [*862] victim; and (3) multiple, mdependent public prosecution agencies with independent authority to bring charges for the same wrongdoing. Outside the United States, the first two options predominate; their expansion in recent years is a direct consequence of broader reforms to expand crime victims' rights. °° U.S. jurisdictions, however, rely almost wholly on the third model. Despite having adopted otherwise expansive victims’ rights laws in recent decades in response to an influential movement for crime victims' rights, state and federal laws consistently and explicitly avoid granting any formal authority to private parties, or courts, over criminal charging. The next three Sections provide an overview of these options, where they exist. Largely with regard to U.S. policy choices only, they also suggest reasons that one model prevailed over others. A. Victim Rights and Private Versus Public Interests In the wake of victims’ rights movements in North America and Europe, crime victims now have an array of legal nights once criminal charges are filed. Victims in the U.S. and European jurisdictions now commonly have rights to participate that include rights to consult with prosecutors, to be notified of and present at court proceedings, and to offer statements at stages such as hearings on bail, sentencing, and parole. ©! 48 See Daniel Duane, Is It O.K. to Kill Cyclists?, N.Y. Times (Nov. 9, 2013), hitps:/Avww.nytimes.com/2013/11/10/opinion/sundav/is-it-ok- to-kill-cyclists html (discussing failures to prosecute motor vehicle drivers who injure or kill bicyclists); see also BikeMaps.org, hittps://bikemaps.org (last visited Oct. 30, 2018) (displaying a crowd-sourced map of locations of cyclist injuries and fatalities). 49 See John F. Decker, Don't Forget to Wear Your Hunter Orange (or Flack Jacket): A Critique on the Lack of Prosecution of Hunting "Accidents," 56.S.C. L. Rev. 135, 166-73 (2004). © See id.; Duane, supra note 48. 5! Eisenberg, supra note 45, at 893-96 (discussing data from prosecutor interviews). In the contexts Eisenberg describes, prosecutors typically forgo hate-crime offenses in favor of other charges rather than declining to prosecute altogether. Though the focus here is on prosecutors, they may not be the key cause of underenforcement. For similar reasons, police may not investigate or arrest in such cases, or if they do prosecution can be undermined by lax evidence-gathering. Police practices are the focus on much of the scholarship on underenforcement of certain offenses. Much of the literature on inadequate enforcement of sexual assault crimes focuses on weaknesses in the police rather than prosecutors. See, e.g., Tuerkheimer, supra note 28, at 1292-99 (discussing evidence of police bias). 2 See, e.g., Alan Blinder, Michael Slager, Officer in Walter Scott Shooting, Gets 20-Year Sentence, N.Y. Times (Dec. 7, 2017), https ://www.nytimes.com/2017/12/07/us/michael-slager-sentence-walter-scott.html (explaining that an officer pled guilty in federal court after a 2016 prosecution in state court ended with a hung jury). 3 See Natapoff, supra note 28. 4 See, e.g., id. % See U.S. Dep't of Justice, United States Attorneys' Manual § 9-27.230 cmt. 1 (1997) (recognizing limited prosecution resources); see also Human Rights Watch, supra note 22, at 99 (listing "lack of investigative or prosecutorial resources" among the most common reasons noted by the federal Civil Rights Division for declining to prosecute); U.S. Dep't of Justice, FY 2013 Performance Budget: Civil Rights Division 39 (noting that strengthening of civil rights enforcement efforts under the "Vulnerable People Priority" policy "has been reversed because full DAVID SCHOEN HOUSE_OVERSIGHT_016519