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103 Minn. L. Rev. 844, *847

law enforcement substantially overlap for many categories of crime. Much of this enforcement redundancy, as considered in detail below, has been a deliberate federal response to diverse problems of underenforcement in state criminal justice. The point for now, however, is the functional equivalence of duplicative federal-state jurisdiction, nation-state jurisdiction, and agency jurisdiction. All represent a common strategy to reduce underenforcement by empowering redundant enforcement authorities: independent entities with equivalent institutional capacity and expertise share jurisdiction. If one neglects to enforce, the other may. Functionally, each backstops, or provides oversight of, failures to enforce by the other.

A second model for minimizing unjustified failures to prosecute relies on private actors to create redundancy with public prosecutors' authority. Empowering private actors to file and litigate public law claims is familiar in many civil law contexts; numerous federal statutes authorize private rights of action that enable private individuals or groups to supplement public agencies' law enforcement efforts. 15 Through much of the nineteenth century, this kind of duplicative public-private enforcement authority was a familiar feature in the criminal justice systems of many states, which permitted private parties - victims - to prosecute alleged criminal wrongdoing.

Redundant charging authority takes other forms as well. In large hierarchical agencies such as the U.S. Department of Justice, internal administrative review of front-line prosecutors' charging or declination decisions by higher-ups creates a version of redundant enforcement authority; supervisors can make independent determinations and reverse front-line prosecutors. 16
[*848] This kind of redundancy through administrative review now exists in English, Irish, and many European criminal justice systems. 17

More ambitiously from a U.S. perspective - because it is rare here - judicial power to review prosecutorial charging decisions is another means to create some degree of redundant charging authority between the executive and judicial branches. Although criminal charging is a core function of the executive branch, state and federal courts have modest authority to review and bar executive officials' decisions to file criminal charges. It is only as a matter of policy that courts - with a few exceptions - are not empowered to address underenforcement by reviewing the executive's noncharging decisions. (This power is somewhat broader for courts in England and Wales as well as in the law of a few states.) 18 This model of redundancy separates charging authority - for courts as for Department of Justice supervisors, the power to order prosecutors to prosecute - from enforcement authority, which includes the institutional capacity to file and litigate charges. Courts (with rare exceptions) have no administrative capacity to litigate a prosecution; but they could provide some redundancy in charging authority. 19

In sum, charging redundancy can occur between equivalent agencies in separate governments, between public and private actors, or between agencies or branches of the same government. Criminal justice systems in Europe and the common law world have adopted or strengthened one or more of these mechanisms in recent decades. In the United States, choices among these strategies have changed over time and between jurisdictions. Nearly all states that once authorized private prosecution have long since prohibited it. Federal prosecutors are organized in a centralized hierarchical agency that makes administrative review possible, but few state prosecutors are similarly organized. For these reasons and others, the primary means of enforcement redundancy to combat underenforcement is overlapping federal- [*849] state authority made possible by the distinctive U.S. model of federalism.

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15 Examples of federal statutes authorizing private rights of action include the Clayton Act, 15 U.S.C. § 15 (2006) (granting a private right of action for antitrust violations); Federal Tort Claims Act, 28 U.S.C. § 2680(h) (1994); Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f) (1994); Americans with Disabilities Act, 42 U.S.C. § 12133 (1994). For an overview, see Pamela H. Bucy, Private Justice, 76 S. Cal. L. Rev. 1, 12-54 (2002).

16 See 18 U.S.C. § 3771(f) (2012) (mandating review of federal prosecutor decisions within the Justice Department upon victim's request).

17 See infra Part II.A.1.

18 See infra Parts II.B.3-B.4.

19 Note that this conception of redundant authority intersects with, but is distinct from, constitutional separation of powers. In a standard account (briefly put), separation of powers describes branches of government having distinct roles, authority, and competencies. In the main, branches do not do the same things; they do different, rival, and complementary things. But if so empowered by the legislature, courts can exercise some degree of charging authority, creating limited redundancy in charging authority between the executive and judicial branches.

DAVID SCHOEN

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