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103 Minn. L. Rev. 844, *877
[*878]
3. Federal Oversight of Declination Decisions
In the United States, only the federal justice system provides for a process of administrative review somewhat comparable to
those in E.U. member states. Federal law grants victims a right to seek review of prosecutors' decisions within the Department
of Justice hierarchy, although it also explicitly bars judicial review of Justice Department decisions in this process. !!4
Although decision makers in an internal review process have less institutional independence from those they review than do
judges engaged in judicial review, they also have a comparative advantage in institutional expertise, which could translate into
less deference to, and more meaningful oversight of, front-line prosecutors.
In addition, federal law guarantees victims "the reasonable right to confer with the attorney for the Government in the case."
115 The Department of Justice interprets this not to create a right to confer before charges are filed, reasoning that no "case"
exists until charges are filed. '!® Some lower courts have interpreted the statute differently, however, and concluded that it
[*879] creates an enforceable right for victims to confer with prosecutors before, and about, the charging decision. One held
that prosecutors cannot enter a non-prosecution agreement with a suspect until they confer with victims, and that if they fail to
do so the court can order prosecutors to re-open the non-prosecution agreement. !!7 A few other lower federal courts have
reached similar conclusions, !18 119
although at least two have opposing conclusions.
Even in its stronger form, this is a limited entitlement, in effect, to an opportunity to try to influence charging decisions. Even
the most aggressive federal courts on this point do not examine prosecutors’ good faith during consultations or their reasons for
disagreeing with victims. In sum, neither the consultation right nor the right to review by Justice Department supervisors
infringes federal prosecutors’ monopoly power over charging from judicial oversight.
for the court calendar). England had no full-scale prosecution agency until the creation of the Crown Prosecution Service in the Prosecution
of Offences Act 1985. See Prosecution of Offences Act 1985, c. 23. The Director of Public Prosecutions office was established in 1879, but it
supplemented rather than displaced private prosecution. See Glanville Williams, The Power to Prosecute, Crim. L. Rev. 596, 601-03 (1955)
(noting 1879 creation of Director of Public Prosecutions and describing police as de facto public prosecutors).
7 See Parrillo, supra note 58.
8° Professional police forces did not arise until the 1850s, so victims investigated crimes and arrested offenders. See Peggy M. Tobolowsky,
Victim Participation in the Criminal Justice Process: Fifteen Years After the President's Task Force on Victims of Crime, 25 New Eng. J.
Crim. & Civ. Confinement 21, 25 (1999) (explaining that, to arrest offenders, victims could enlist the "aid of the local watchman, justice of
the peace, or constable for whose assistance the victim paid").
81 See, e.g., Mike McConville & Chester Mirsky, Jury Trials and Plea Bargaining: A True History 25-42 (2005) (describing early systems in
New York of judicial or gubernatorial appointment of prosecutors, until the office first became elective in 1847); Allen Steinberg, The
Transformation of Criminal Justice: Philadelphia, 1800-1880, at 152-58 (1989) (stating that Philadelphia first elected its district attorney in
1850). Prosecutors as well as judges became elected positions in many states as part of a wave of state constitutional reform in the mid-
nineteenth century. See, e.g., Ind. Const. art. 7, § 11 (1851); Md. Const. art. 5 (1851); see also id. art. 3 (forbidding creation of state attorney
general office); Mich. Const. arts. 8, 10 (1850); N.Y. Const. art. 10 (1846); N.C. Const. art. 4, § 29 (1868); Va. Const. art. 6,§§6, 8, 30
(1851).
82 See Jacoby, supra note 70, at 6 (arguing that American prosecutors evolved from weak to strong figures largely because they were
popularly elected and tied to local government organization). Public and private prosecutors coexisted for a few decades in some places. See
Cantrell v. Commonwealth, 329 S.E.2d 22, 25 (Va. 1985) (describing the history of private prosecution in Virginia); State v. Stein, 30 S.C.L.
(1 Rich.) 189, 190 (S.C. 1845) (affirming that private individuals may file criminal or civil actions for the same offense but must elect the
form before trial); Corley v. Williams, 17 S.C.L. (1 Bail.) 588, 588-89 (S.C. 1830) (providing an example of private prosecution).
Pennsylvania and New York relied heavily on private prosecutors for criminal law enforcement before 1850. See Stewart v. Sonneborn, 98
U.S. 187, 198 (1879) (Bradley, J., dissenting) ("Every man in the community, if he has probable cause for prosecuting another, has a perfect
right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his
suit."); McConville & Mirsky, supra note 81 (describing New York courts with private prosecutors and, prior to 1847, judicial or
gubermatorial appointments of public prosecutors); Steinberg, supra note 81, at 24-69, 152-57 (describing private prosecutions, screened by
aldermen acting as magistrates, and creation of elected district attorney's office in 1852).
83 Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century United States, 39 Am. J. Legal Hist. 43, 44-45
(1995) (recounting numerous comments by state supreme courts on the low quality and inadequate funding of public prosecutor offices).
DAVID SCHOEN
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