Essay by Ruth Colker
In this Essay, I will examine the case law on federal judicial review of prosecutorial decisions in two different settings: Federal administrative agency prosecutorial decisions and state prosecutorial decisions. Although my primary concern is how to improve federal review of federal agency prosecutorial decisions, I have chosen to examine federal review of state prosecutorial decisions for comparative purposes. The judicial standard for federal review of state prosecutorial decisions is well developed and reflects a somewhat more satisfactory response to the problem of reviewing prosecutorial decisions. Therefore, after examining some of the problems with the existing standards for federal review of federal administrative agency prosecutorial decisions, I turn to the case law involving federal review of state prosecutorial decisions for guidance in developing a more appropriate standard of review.
My survey of the case law on federal review of federal agency prosecutorial decisions reveals two basic problems. First, judicial review of federal agency prosecutorial decisionmaking is more limited when prosecutors decide not to prosecute than when they decide to prosecute. However, judicial review is generally needed more when prosecutors decide not to prosecute because such a decision can seriously undermine Congress' statutory mandate. Second, federal judicial review of federal decisionmaking has become more limited than federal review of state decisionmaking. This trend should be reversed; federal review of federal decisionmaking should be at least as broad as federal review of state decisionmaking because problems of federalism do not exist in reviewing federal decisions.
In general, I suggest that the courts use three factors to determine whether to review administrative prosecutorial decisionmaking: Whether other forms of judicial review are available; whether the prosecutorial decision is likely to cause substantial hardship; and whether the prosecutorial decision is inconsistent with the underlying statute. These factors are drawn from the case law involving federal review of state prosecutorial decisions but are flexible enough to deal with some of the problems of abuse that the case law is not satisfactorily addressing. These factors are most likely to be present when a federal agency has systematically failed to bring prosecutions to enforce a statute for which it has exclusive enforcement authority, such as in the AIDS example.
About the Author
Ruth Colker. Associate Professor of Law, Tulane University; A.B. 1978, Harvard-Radcliffe College; J.D. 1981, Harvard University.
Citation
63 Tul. L. Rev. 877 (1989)