In sum, compared to the federal system, many states have distinctive constitutional structures and long histories of prosecution by actors other than executive branch officials. Those differences should lead states away from the error of viewing all critical aspects of prosecutorial discretion as exclusively executive and immune to any judicial input. Some state statutes and doctrines demonstrate --albeit mostly in marginal terms--some possibilities for judicial checks on prosecutorial authority. There are good reasons to question the strong conception of separation of powers doctrine in the federal context, where it prohibits meaningful judicial oversight of prosecutorial discretion about filing, amending, or dismissing charges. That kind of constitutional barrier has an even weaker basis in many states, notwithstanding the overly broad assumptions by state and federal courts alike about our system of criminal prosecution. (104) In sum, state executive authority over criminal charging can accommodate specific legislative standards for--or checks on--that authority and a deferential role for the judiciary defined by legislative or even judicially defined standards.
In fact, even in the federal context there should be no dispute that separation of powers doctrine permits legislatively authorized judicial review. Congress surely can enact statutory criteria, guidelines, or mandates for executive branch enforcement actions and also provide for judicial review under those rules. This kind of statutorily authorized judicial review already exists for certain civil enforcement decisions made by federal executive branch departments. (105) Charging decisions are not "ill-suited to judicial review" as a federal constitutional matter in all circumstances, and state constitutions are unlikely to present a stronger barrier. (106) At most, that assumption is true only as a practical or prudential matter when no statute or regulation provides a basis for review, although courts are capable of fashioning meaningful standards as a matter of constitutional or common law. Judges are wholly competent to review some aspects of government enforcement decisions under sufficiently specific legal criteria, even if only to guard against extreme exercises of authority. Short of a wholesale revision of expansive criminal codes and determinate sentencing laws, some kind of review along those lines is the only route to meaningful regulation of plea bargaining and to leaving executive power to be checked solely by the political process.
REGULATION OF PROSECUTORS IN COMMON LAW SYSTEMS
Regulation or judicial supervision of prosecutorial conduct is hardly a novel idea. Some civil law jurisdictions have long had a requirement of mandatory prosecution when evidence is sufficient. (107) Some nations, such as Germany, amended mandatory prosecution to authorize prosecutorial discretion for some crimes, although apparently the mandate remains a significant norm that somewhat constrains exercises of prosecutorial discretion. (108) By contrast, prosecutors throughout common law jurisdictions have always had wide discretion over whether to pursue charges well grounded in evidence. (109) There are few restraints on authority by statutes, constitutional doctrine, or common law. (110) But that freedom for prosecutorial authority did not arise from a trust in the public prosecutors or executive officials. England relied heavily on private prosecutors to a much greater degree, and for much longer, than did any American state jurisdiction. (111) The primary explanation for why common law jurisdictions never developed legal parameters for prosecutorial authority to the degree that many civil law jurisdictions did is that common law systems relied primarily on the structure of the adjudication process to oversee government officials: lay juries provided the main safeguard against abusive prosecutions. (112) Democratic review rather than judicial review checks prosecutors.
Times have changed. Plea bargaining has marginalized jury trials as the means of adjudication. But what has replaced the jury as an institutional safeguard? In American jurisdictions, very little-despite a deep-seated national skepticism of government power and the monopolization of prosecutorial authority by government officials. Courts have done little to develop bases for judicial review of charging decisions and bargaining tactics. Legislatures have granted prosecutors greater authority through determinate sentencing laws, which give prosecutors power over punishment terms, and through expansive criminal codes that multiply charging options. (113)
On this front, however, the evolution of English and American criminal justice has diverged. And for that reason it is worth considering English practice for roads not taken to the regulation of plea bargaining by state and federal law.
JUDICIAL REVIEW OF PROSECUTION DECISIONS IN ENGLAND
The baseline rule regarding English courts' oversight of charging decisions is, much like the American rule, highly deferential: "[J]udicial review of a prosecutorial decision is available but is a highly exceptional remedy." (114) Like its American counterparts, the English judiciary recognizes that prosecution decisions typically "turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before ... a jury." (115) Nevertheless, defendants in English courts can challenge charging decisions as unlawful, including decisions to charge greater rather than lesser offenses, (116) and courts permit victims to challenge prosecutors' declination decisions, or their decisions to dismiss filed charges. (117)
[R]eview is less rare in the case of a decision not to prosecute than a decision to prosecute (because a decision not to prosecute is final, subject to judicial review, whereas a decision to prosecute leaves the defendant free to challenge the prosecution's case in the usual way through the criminal court). (118) The same standards apply to decisions to nolle pros charges, even though English law continues to adhere to the common law rule that prosecutors control the power of nolle prosequi, (119) Courts justify this form of review on the premise that "a decision not to prosecute, especially in circumstances where it is believed or asserted that the decision is or may be erroneous, can affect public confidence in the integrity and competence of the criminal justice system." (120) For this reason, decisions not to charge in incidents that involve deaths in state custody get closer scrutiny to guard against prosecutors' favoritism toward other law enforcement officials. (121) Again, review is deferential and the actual number of judicial reversals of such decisions appears to be small. But unlike state courts' authority not to grant nolle pros requests or federal court scrutiny of biased charging under the Armstrong standard, (122) this authority is meaningful:
English courts periodically disapprove of prosecutors' decisions not to file criminal charges.
Challenges to prosecutorial discretion can be raised on several bases. English judges will intervene in a decision not to prosecute only when a complainant can demonstrate the decision was "(1) because of some unlawful policy, (2) because of a failure to act in accordance with settled policy as set out in the Code [for Crown Prosecutors], or (3) because the decision was perverse, i.e. one at which no reasonable prosecutor could have arrived." (123) Similar standards apply to the review of decisions to file charges. (124) The reasonableness standard is not far removed from the kind of review American courts engage in under constitutional standards or with regard to administrative agency decisions, although here it does not extend to the context of criminal law administration. (125) The bigger difference lies in the legal status of prosecutors' charging policies. The U.S. Attorney's Manual and other federal Justice Department guidelines closely resemble in their form, substance, and formality the English Code for Crown Prosecutors. (126) The critical distinction is that the latter is truly an administrative code. It exists by statutory mandate, has status equivalent to federal administrative regulations, and therefore serves as the basis for judicial review to ensure that the agency abides by its own guidelines. (127) Changes to the Code for Crown Prosecutors must go through a formal process that includes public consultation--a notice and comment period in U.S. parlance. (128) That is not true of U.S. Justice Department policies (129) or state prosecution guidelines. (130) Federal policies exist at the discretion of the Attorney General, and courts treat them as unenforceable provisions. (131)
Additionally, English courts may prohibit prosecutions on various grounds that constitute "abuse of process" by police or prosecutors. (132) One strand of abuse of process doctrine resembles American law: courts will bar prosecution after prosecutors tell a defendant that a specific charge would not be pursued if the defendant can show reliance on the initial nonprosecution pronouncement. (133) But English doctrine seems to be broader than American. A stay can be justified for police misconduct as well, including police promises not to prosecute, even though prosecutors control decisions to charge. (134) Courts may stay prosecutions for abuse of process even when a fair trial is possible because they are acting within their inherent power to regulate and prevent abuse of the judicial process. A leading decision describes the rationale in rule of law terms:
[T]he judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that...