NCJ Number
112828
Journal
Yale Law Journal Volume: 97 Issue: 3 Dated: (February 1988) Pages: 488-507
Date Published
1988
Length
20 pages
Annotation
Although Federal law lacks a statute giving private persons standing to challenge prosecutors' decisions not to prosecute, at least nine States have or recently had statutory schemes that enable private challenges to prosecutorial inaction.
Abstract
These statues raise some constitutional concerns. Those that allow private persons to conduct their own prosecutions raise concerns about the rights of defendants and about the appropriateness of delegating an exclusively executive function to private parties. Statutes that allow a court to order a prosecutor to proceed or to appoint a special prosecutor raise objections about the separation of powers and due process. However, it is possible to provide a constitutionally viable citizen standing to challenge prosecutorial inaction. A model statute that allows the victim of an alleged criminal act to make such a challenge is proposed in which the court would, upon an appropriate finding, be authorized to issue a declaratory judgment that a prosecutor has abused the discretion not to prosecute. While this judgment would not require that a prosecution be commenced, it could be expected to create public pressure, giving the plaintiff additional political leverage. This statutory procedure also would allow for public airing of grievances and serve as a device for signalling executive abuse of discretion. 111 footnotes.