The Administrative Law of Criminal Prosecution The Development of Prosecutorial Policy Beck

THE ADMINISTRATIVE LAW OF CRIMINAL PROSECUTION: THE DEVELOPMENT OF
PROSECUTORIAL POLICY
LELAND E. BECK*
I.
INTRODUCTION ....................................................
Page 311 313
II.
III.
PRIMER ON FEDERAL CRIMINAL
.................................
THE FEASIBILITY OF AN ADMINISTRATIVE LAW MODEL FOR STRUCTURING
PROSECUTORIAL DISCRETION
.................................
322 322 327 329 329 333 337 337 338 343
A. Administrative Law Principles Applied to Criminal Law Enforcement ................................. B. Federal Court Jurisdiction to Review Agency Action ................................................. C. Limitations on Reviewability ............................... 1. APA nonreviewability .................................... 2. A functional analysis of the common law ........... D. Summary ........................................................
IV.
THE VALIDITY OF ARGUMENTS MADE AGAINST
ARTICULATING PROSECUTORIAL POLICY ..................
A. Authority to Establish Policy ............................... B. Practicality of Developing Policy .........................
* Member of the District of Columbia Bar. B.A., 1973, M.A., 1975, Kent State University; J.D., 1977, Washington College of Law, The American University. I wish to thank Dr. David E. Aaronson of the Washington College of Law for initially bringing to my attention the questions discussed in this article and for his continuing critique of the analysis. I would also like to thank my colleagues at the Department of Justice, where I clerked during 1976-1977, for their comments, as well as counsel of several congressional committees and others at the Washington College of Law for their advice on various drafts. The views expressed herein do not necessarily reflect the position of the Department of Justice or any other agency of the federal government, but are solely those of the author.
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C. Publication of Articulated Enforcement Policies and Guidelines ..................................... 1. Must policy be disclosed? .............................. 2. Should policy be disclosed? ............................ D. Litigabilitv: The Sheep in Wolf's Clothing ............. 1. Confession of error ...................................... 2. Investigatory policy and constitutional guarantees: the IRS experience with delegated authority ....................................... 3. Judicial enforcement of internal prosecutorial policy in defendants' favor .................. E. Sum m ary ........................................................
V. PROSPECTUS: THE DEVELOPMENT OF PROSECUTORIAL POLICY .......................................
345 345 355 358 359
364 367 373 374 378
VI.
CONCLUSION ....................................................... I. INTRODUCTION
Prosecuting attorneys in the United States Department of Justice traditionally have exercised unfettered discretion in deciding which cases to prosecute. This broad discretion has been both judicially recognized and approved,' yet concern over the impact of this discretion has grown. 2 As the role of the federal prosecutor has expanded, a significant debate has developed concerning the uniformity of prosecutorial decisionmaking across the country. On one side of the debate, illustrated in Part III of this article, commentators have advocated that prosecutorial policy be developed within
1. E.g., Gregg v. Georgia, 428 U.S. 153, 199 (1976) (prosecutor may select whom to prosecute for capital offense and may plea bargain; "nothing in any of our cases suggests that the decision toafford ... mercy violates the Constitution"); Furman v. Georgia, 408 U.S. 238 (1972); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379-82 (2d Cir. 1973); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935 (1965). See also Weisberg v. United States Dep't of Justice, 489 F.2d 1195 (D.C. Cir. 1973) (en banc), cert. denied, 416 U.S. 993 (1974) (recognizing discretion in case reviewing Freedom of Information Act request). 2. Abrams, Internal Policy: Guiding the Exercise of ProsecutorialDiscretion, 19 U.C.L.A. L. REV. 1 (1971); Bubany & Skillem, Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13 AM. CRIM. L. REV. 473 (1976); Ferguson, Formulation of Enforcement Policy: An Anatomy of the Prosecutor's Discretion Prior to Accusation, 11 RUTGERS L. REV. 507 (1957); Friedman, Some JurisprudentialConsiderationson Developing an Administrative Law for the Criminal Pre-Trial Process, 51 1. URB. L. 433 (1974); Neumann, The New Era of Administrative Regularization: Controlling ProsecutorialDiscretion Through the Administrative ProcedureAct, 3 U. DAYTON L. REV. 23 (1978); Rabin, Agency CriminalReferrals in the FederalSystem: An Empirical Study of ProsecutorialDiscretion, 24 STAN. L. REV. 1036 (1972); Vorenberg, Narrowing the Discretion of Criminal Justice Officials, 1976 DUKE L. J. 651 (1976).
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an administrative law model. Professor Kenneth Culp Davis 3 would structure prosecutorial discretion according to the Administrative Procedure Act (APA), 4 and similar proposals have been made by various national advisory committees. 5 The literature on the subject does not indicate coherent trends or significant legal analysis, however, and the administrative law concept has gained less than universal acceptance. This article will examine the administrative law model from a traditional legal perspective, an analysis that is new to the literature. As will be seen, the model has some merit, because the very act of articulating prosecutorial policy may help to channel discretion by focusing prosecutors' effort on uniform policy goals. The administrative model is not the answer in itself, however, because it relies for its effectiveness on authority that does not exist, or on judicial review of administrative action, which probably will not be forthcoming. The more conservative or traditional view of prosecutorial discretion, discussed in Part IV, is best reflected by the structure of the federal prosecutor's office, as no formal spokesman has appeared in the literature. 6 The U.S. Attorney for each judicial district, in theory, is appointed by the President and confirmed by the Senate. 7 In practice, however, senators from the state in which the district lies more often nominate or designate, the President consents, and the Senate confirms. The result of this appointment system is that federal justice is essentially a local concern; 8 therefore objections to a nationally uniform policy of
3. K. DAVIS, ADMINISTRATIVE LAW TEXT 518-23 (3d ed. 1972); K. DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 188-214 (1969) [hereinafter cited as DISCRETIONARY
JUSTICE]. See, Bubany & Skillern, supra note 2; Neumann, id. 4. 5 U.S.C. 551-559, 701-706 (1976). 5. E.g., ABA SPECIAL COMM. ON STANDARDS FOR THE ADMINISTRATION OF CRIMINAL
JUSTICE, STANDARDS RELATING TO THE PROSECUTION FUNCTION, 2.5 (Approved Draft 1971) [hereinafter cited ABA PROSECUTION STANDARDS]; NATIONAL ADVISORY COMM'N ON CRIMINAL JUSTICE STANDARDS AND GOALS, REPORT ON COURTS, Standards 3.3, 12.7 (1973): NATIONAL DISTRICT ATTORNEYS ASS'N, NATIONAL PROSECUTION STANDARDS, Standard 6.1 (1977). PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 130-36 (1967). See also Kuh, Plea Bar-
gaining: Guidelinesfor the Manhattan DistrictAttorney's Office, 11 CRIM. L. BULL. 48 (1975). 6. Cf. Malone, Criminal Abuses in the Administration of Private Welfare and Pension Plans: A Proposalfor a National Enforcement Program, 1976 So. ILL. U.L.J. 400, 466-94 (1977) (author, formerly associated with the Department of Justice, does not confront Davis' proposal directly, although he does recommend internal controls). 7. 28 U.S.C. 541 (1970). 8. It is widely acknowledged that this situation exists. Not surprisingly, documentation is quite rare. See, e.g., Removing Politics From the Administration of Justice: Hearings on S.2803 and S.2978 Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. 155 (1974) (statement of Nicholas de B. Katzenbach that political influence tends to
federal prosecution naturally arise. Part IV of this article will address the opposition to Davis' proposal and the arguments most often presented to detract from the merit of articulating policy at all. The first two arguments-that only Congress has the constitutional authority to make the laws, and that no studies have demonstrated that internal controls on discretion are needed-are makeweight arguments. The last two concerns-that policy, once articulated, should not be published, and that if it is published or articulated, it will become litigable-are more substantial. Recent developments in the law, however, demonstrate that concerns about publication and litigabilty do not stand in the way of articulating policy. Indeed, these recent developments actually make it more compelling that the Department of Justice articulate and enforce its policies internally, before courts do intervene in the realm of prosecutorial discretion. The central issue of this article is whether a uniform prosecutorial policy should be articulated and published in some manner that strikes a medium between the full administrative law model and unfettered discretion. To determine whether the American system of justice has a place for such an articulation it is necessary to construct the opposing positions in a legal and political dialectic, as presented in Parts III and IV. Part V responds to the dialectic by suggesting complementary steps to be taken by the Department of Justice, Congress, and the courts, and it profits from the political currents that underlie the entire subject of structuring the scope of prosecutorial discretion. First, however, the reader should be familiar with the state of the art-the scope of presently articulated prosecutorial policy.
II. A PRIMER ON FEDERAL CRIMINAL

PROSECUTORIAL POLICY The codified federal criminal statutes are too numerous and complex for the Department of Justice and the U.S. Attorneys 9 to enforce comstart at the bottom, locally, because of the appointment process); Ruff, FederalProsecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 GEO. L.J. 1171, 1206-07 (1977). Similarly, although the Attorney General supposedly appoints Assistant U.S. Attorneys, in practice, U.S. Attorneys and their senior assistants make the choices. Rabin, supra note 2, at 1040.
See 28 U.S.C. 542 (1970).

9. The restriction of this article to the 94 U.S. Attorneys and the Department of Justice is a matter of practicality. Although this restriction excludes a wealth of material on state criminal prosecution, the federal criminal prosecutor provides sufficient illustrations for a complete analysis of the problem. In addition, federal administrative law is generally mature and well documented, in contrast to diverse or nonexistent state administrative law. For a survey of related state prosecution issues, see F.MILLER. PROSECUTION: THE DECISION TO CHARGE A SUSPECT WITH A CRIME (1969); Note,
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pletely. Having fewer resources and less time than necessary to pursue all potentially prosecutable criminal investigations, the Department has of necessity made some enforcement decisions, 10 whose impacts range from specific cases to general enforcement policy. The range of opportunities to exercise discretion and the scope of discretion at each decisionmaking point still are broad, however, and best can be illustrated by a survey of the federal prosecutorial process. Although the Department of Justice has not coined specific terms for various types of decisions, this article, for the sake of clarity, shall attach special meanings to the words "policy," "guideline," and "directive." A policy constitutes the broadest statement of an agency's attitude toward particular subjects." A good example of broad policy is the Department's Petite policy, the practice of avoiding prosecution of an offender in federal court for the same facts on which a state prosecution is proCriminal Law-Binding Effect of Prosecutor'sAgreement to Dismiss Prosecution, 23 WAYNE L. REV. 1129 (1977) (recent state court decisions expanding or limiting prosecutors' rights to plea bargain). 10. For example, the United States Attorneys' Manual reflects some of the enforcement decisions that are most clearly formulated. UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL [hereinafter cited as U.S. ATT'Y MAN.]. The nine-volume Manual is available under the disclosure requirements of the Freedom of Information Act from the Executive Office of United States Attorneys, United States Department of Justice, Washington, D.C. 20530, at S.10 per page. U.S. Arr'Y MAN. 1-1.400 (Aug. 31, 1976). See Freedom of Information Act, 3, 5 U.S.C. 552 (1976). The Manual indicates: This Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice. A number of goals were pursued in the development of the United States Attorneys' Manual: (1) Fairness-Eachcase is different and must always be treated on its facts. General guidelines, however, will help assure evenhandedness, consistency, and equal treatment by different United States Attorneys' Offices in similar cases. (2) Consistency-Where a generally consistent Government position is appropriate, a comprehensive vehicle for dissemination of materials will be an aid in maintaining this consistent position in the courts. (3) Efficiency-Recurring questions can easily and quickly be disposed of by statements of general policy, thus avoiding the loss of time in dealing with problems on an ad hoc basis, or in attempting to ascertain policies. Frequently encountered questions of law can also be anticipated and answered utilizing the Department's collective experience. (4) Communication-The Manual will serve as a single repository where statements of general policy can be collected and organized as they are issued. (5) Changes in Materials-The consolidation . . . will help to promote changes in policy which have become obsolete over time, and will spotlight present general policies that are in need of scrutiny and change. 11. Much as the United States has a foreign policy, it has a litigative policy. Policies may be formal or informal and may be as broad or narrow as the agency wishes.
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12
ceeding or has proceeded. vides:
The United States Attorneys' Manual pro-
No Federal case should be tried when there has been a state prosecution for substantially the same act or acts without a recommendation having been made to the Assistant Attorney General demonstrating 13 compelling Federal interests for such prosecution.
When several offenses arise out of a single transaction, they should be alleged and tried together and should not be made the basis of multiple prosecutions. 14 The presence of general advisory language typifies policy provisions. Guidelines are more specific than policy. Generally, they will enumerate factors a prosecutor should consider when making a particular decision, or will illuminate the boundaries within which the prosecutor should act.' 5 A good illustration of guidelines concerns the handling of obscenity cases; colloquially known as the Redmond policy: 16 [T]he primary objective of prosecution in private correspondence cases should be to restrain the exploitation of obscene private correspondence for commercial gain .... The principle thrust of prosecutions
should be directed toward those who are the prime movers in such endeavors.
It is the Department's view that generally no useful purpose is served by a felony conviction of individuals who have willingly ex-
12. The policy derives its name from Petite v. United States, 361 U.S. 529 (1962), but it existed prior to the case. Although the original departmental policy involved dual prosecution, Department of Justice Press Release, April 6, 1959, the Solicitor General in Petite applied it to closely related situations of multiple federal prosecutions that are not otherwise barred by the double jeopardy clause or by joinder and severance rules of procedure. 361 U.S. at 531. See Rinaldi v. United States, 98 S. Ct. 81 (1977) (per curiam) (citing Petite case as authority that the Petite policy can encompass successive federal prosecutions as well as duplicating federal/state prosecutions). 13. U.S. ATT'Y MAN. 9-2.142 (Jan. 10, 1977). The remainder of the provision directs an attorney to follow specific procedures. 14. Id. 9-2.143 (Jan. 10, 1977). 15. In the criminal justice field, guidelines have been popularized by the American Bar Association, the National Advisory Commission of Criminal Justice Standards and Goals, and most recently the National District Attorneys' Association. See sources cited at note 5 supra. 16. Redmond v. United States, 384 U.S. 264 (1966). This case illustrates an earlier version of the policy. Id. at 265.
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changed private letters, although obscene. This is not to say that prosecution may never be instituted in such cases. Rather, prosecution should be the exception and confined to those cases involving repeated offenders or other circumstances which may fairly be characterized as aggravated. . . United States Attorneys should give careful consideration to all of the surrounding circumstances, such as the subject's prior record, particularly with respect to his involvement with obscene materials and sex related offenses, his employment, including his opportunity for close association with young people; and his educational level ... The United States Attorney should determine initially whether a strong warning and declination of prosecution is adequate in the particular case. This disposition should suffice in the routine cases of consensual obscene private correspondence. In other cases, the United States Attorney should give serious consideration to exploring with defense counsel voluntary submission by the accused to psychiatric evaluation .... 17 Directives are still more specific than guidelines, usually instructing one or more officials by title to act in a certain manner. Directives do not focus on particular cases and should not be confused with an individual instruction to handle a particular prosecution in one specific way; they deal with a class of cases or situations. In the course of discussing grand jury practices, the Department recently has directed the following: Notwithstanding the lack of a clear constitutional imperative, it is the internal policy of the Department to advise grand jury witnesses of the following matters: 1) the general subject matter of the grand jury's -inquiry . . . ; 2) that the witness may refuse any question if a truthful answer to the question would tend to incriminate him; 3) that anything that the witness does say may be used against him; and 4) that the grand jury will permit the witness the reasonable opportunity to step outside the grand jury room to consult with counsel if he desires. This notification will be contained on a printed form ... which will be appended to all grand jury subpoenas. ... Moreover, although . . . "targets" of the grand jury's investigation are entitled to no special warnings relative to their status as "potential defendant(s) in danger of indictment," we will continue the longstanding internal practice of the Department to advise witnesses who are known "targets" of the investigation . . . that their conduct is being investigated for possible violation of federal criminal law. This
17. U.S. ATT'y MAN. 9-75.630 (Jan. 17, 1977).
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supplemental "warning" will be administered on the record when the target witness is advised of the matters discussed in the preceeding [sic] paragraph. 18 Unlike policy and guidelines, directives are mandatory, not advisory. To the extent they are known to exist, directives always cover procedural aspects of criminal prosecution. 19 Rules can be either legislative or interpretative,2 0 and the term will be used here according to its usual administrative law definition. Discretionary decisions affect the criminal justice system in the following chronological order: selective enforcement of certain crimes or against specific groups, use of investigatory techniques, the decision to charge, diversion of some individuals from the criminal process into rehabilitation programs, decisions to plea bargain or to dismiss, trial decisions, and posttrial decisions. The structuring of discretion may best be illustrated by examining each stage of decisionmaking. The first decision that the Department of Justice or a U.S. Attorney makes is to focus attention on certain types of persons or transactions and deliberately ignore allegations of other types of illegal activity. For example, the IRS gives special attention to attorneys, accountants, and drug traffickers for tax violations. 2 1 Similarly, the Department of Justice does not actively enforce sanctions against noncommercial consensual mailings of obscene material, 22 or against carrying penknives aboard cormercial aircraft. 23 The decision to enforce selectively usually is 24 made in conjunction with another investigatory or regulatory agency. Such a broad policy, followed at an early stage of prosecution, obviously influences the entire criminal justice system.
18. Id. 9-11.250 (Supp. Dec. 16, 1977). 19. No specific directive altogether forbidding prosecutions of certain crimes is publicly known. Cf. notes 21-24 & accompanying text infra (selective enforcement of some crimes). 20. See notes 63-82 & accompanying text infra. A major difference between a directive and a rule involves the enforcement structures associated with each. In general, the only formal enforcement mechanism attendant a directive is a disciplinary procedure brought against an employee for insubordination. Rules may be enforced by the agency or by courts. See K. DAVIS, ADMINISTRATiVE LAW TEXT 139-56 (3d ed. 1972). 21. Oversight Hearings into the Operations of the IRS (Operation Tradewinds, Project Haven and the Narcotics Traffickers Tax Program) Before the Senate Comm. on Government Operations, 94th Cong., 1st Sess. 5-20, 262-328 (1975). This selective enforcement policy is based on the theory that these groups have a greater propensity, ability, or opportunity for tax evasion. 22. U.S. ATT'Y MAN. 9-75.630 (Jan. 17, 1977) (Redmond policy). 23. Id. 9-63.165 (Jan. 17, 1977) (prosecution only of aggravated cases to avoid manifest injustice to some potential defendants). 24. See, e.g., UNITED STATES DEPARTMENT OF JUSTICE, CRIMINAL TAX MANUAL 2-4 (1973) [hereinafter cited as CRIM. TAX MAN.] (reference letters from IRS to Tax Division).
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Prosecutors also frequently decide which investigatory techniques are acceptable or preferred. For example, recent public concern with various covert activities of the Federal Bureau of Investigation has led to development of extensive administrative guidelines to regulate investigation techniques. 25 Under an Executive Order, 2 6 the Department of Justice must follow certain preliminary procedures for interception of conversations by the intelligence community. Parallel instructions from the Attorney General to the heads of all agencies require approval of consensual recording of face-to-face conversations. 2 7 The policies that underlie investigatory guidelines vary from promoting administrative efficiency to 28 protecting individuals' rights to privacy. The third discretionary decision-the determination of whether to proceed with formal criminal charges-is the first that has direct impact on particular individuals.2 9 A number of guidelines place the decision to charge in the hands of a centralized office. Prosecutions of cases involving criminal subversive activities, for example, must be expressly authorized by the Criminal Division of the Department of Justice or a higher authority. 30 Other exemplary guidelines require U.S. Attorneys to consult with the Criminal Division before seeking indictments under cer25. E.g., General Memorandum, Department of Justice Office of Policy and Planning (June 11, 1976) (FBI guidelines on domestic security investigations, reporting on civil disorders and demonstrations, and use of informants). 26. See, e.g., Exec. Order No. 11,905, 3 C.F.R. 90 (1977). This Order delineates broad policies and procedures for domestic and foreign security activities, counter-intelligence, and gathering of domestic intelligence information. 27. U.S. ATT'Y MAN. 9-7.013 (Supp. July 12, 1977) (directive requiring authorization to monitor conversations) (original policy guidance issued in 1972 memorandum). See notes 322-28 & accompanying text infra (discussion of United States v. Caceres). 28. Compare, for example, the privacy considerations underlying wiretapping guidelines, see notes 25-28 & accompanying text supra, with the efficiency considerations underlying the Tax Division, Criminal Section's guidelines on granting conferences to proposed defendants. Admonished not to discuss particular evidence with conferees except for the nature of the charges and some basic figures, Criminal Section attorneys may grant a conference "to permit proposed defendants to present any explanations and evidence which may be considered helpful to the Department in reaching a proper decision on prosecution." CRIM. TAX MAN., supra note 24, at 4. 29. The decision to charge and the choice of charges are subject initially to judicial review at the preliminary hearing or arraignment. See FED. R. CRIM. P. 5 (initial appearance before magistrate); FED. R. CRiM. P. 5.1 (preliminary examination); FED. R. CRIM. P. 10 (arraignment). In most instances this decision is highly deliberative. Even before arraignment, however, the individual may become subject to incarceration, suspension of licenses or employment, and social stigmatization. See, e.g., 7 U.S.C. 53 (1976) (revocation of cotton grading licenses); 18 U.S.C. 843 (1976) (revocation of licenses for users, dealers, and manufacturers of explosives); 18 U.S.C. 923 (1976) (revocation of firearms dealer licenses). 30. U.S. ATT'Y MAN. 9-2.132 (Jan. 10, 1977) (listing certain statutes under which prosecutions are made). Additionally, all criminal tax fraud or evasion cases are instituted by or at the direction of the Criminal Section of the Tax Division. CRIM. TAX MAN., supra note 24, at 1 (quoting United States Attorney's Manual, tit. 4, at 3-4 (1971 ed.)).
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tain laws, 3 ' to channel enforcement efforts toward certain types of offenses, 3 2 to avoid dual prosecutions in federal and state courts, and multiple prosecutions in federal courts, of offenses arising out of substantially the same acts,3 3 and to consider certain factors when selecting among two or more applicable charging statutes. 34 Relatively little review is made of decisions to decline prosecution. 3 5 Various special practice and investigation policies coincide with the charging decision. The U.S. Attorney may still be investigating a potential violation when he takes his case before a grand jury. Because the grand jury then serves both an investigative and a quasi-judicial function, establishing policy in this context involves balancing the need to conduct a thorough investigation against the need to accord witnesses their full rights against self-incrimination. 3 6 Decisions to compel testimony through grants of immunity at this point of the process are regarded as centralized no-charge decisions, subject to reversal only after careful review. 3 7 Directives on choosing immunity provisions 38 and guidelines for choosing informal rather than statutory procedures 3 9 reflect the sen-
31. U.S. ATT'Y MAN. 9-2.133 (Jan. 10, 1977). 32. E.g., id. 9-75.140, .630 (Jan. 17, 1977) (assigning enforcement priority to commercial operations under obscenity statutes); cf. id. 9-2.133(a) (Jan. 10, 1977) (limiting subsequent perjury prosecutions arising from trials resulting in acquittals); id. 9-2.133(x) (Jan. 10, 1977) (limiting prosecution of Mann Act "personal escapade" cases). 33. Id. 9-2.142 (Jan. 10, 1977) (general dual prosecution policy); id. 9-63.660 (Jan. 17, 1977) (dual prosecution of firearms offenses); CRIM. TAX MAN., supra note 24, at 8-9. See notes 12-14 & accompanying text supra. 34. This type of guideline generally is used as a means of controlling unnecessary litigation costs and delays. For example, of two statutes providing penalties for false statements and perjury, the Manual states a policy of prosecuting under that statute whose division of evidentiary burdens favors the government. U.S. ATT'Y MAN. 9-69.261, .265 (Jan. 17, 1977). 35. Congress has subjected discretion to decline prosecution to the scrutiny of the Attorney General in cases involving investigations for violations of bankruptcy laws that are referred by referees, receivers, or trustees in bankruptcy. 18 U.S.C. 3057(b) (1976). Congress also has guaranteed legislative review of declinations in cases involving interstate travel to incite riots. 18 U.S.C. 2101(d) (1976). The United States Attorneys' Manual cites only these two provisions as the law limiting discretion to decline. U.S. ATT'Y MAN. 9-2.111 (Jan. 10, 1977). 36. See, e.g., U.S. ATr'y MAN. 9-11.250 (Supp. Dec. 16, 1977) (government should give warning to "targets" appearing before grand jury); note 18 & accompanying text supra. 37. 18 U.S.C. 6003 (1976) requires authorization from the Attorney General or his designee before a U.S. Attorney may request an order to compel testimony subject to use immunity. See U.S. ATT'Y MAN. 1-11.000 (Jan. 17, 1977); cf. id. 9-2.158(3) (Jan. 10, 1977) (consent required to accept plea of nolo contendere). 38. U.S. ATT'Y MAN. 9-2.158 (Jan. 10, 1977) (Department will rely exclusively on 18 U.S.C. 6002-6003 (1976) instead of other statutory provisions). 39. Id. 9-2.148 (Jan. 10, 1977) (promise by prosecuting attorney not to prosecute will bind prosecutors in other districts) (citing United States v. Carter, 454 F.2d 426 (4th Cir. 1972)).
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sitivity of the process and the desire for central control of decisionmaking. After charging, or as an alternative to charging, a U.S. Attorney may choose to divert a defendant from the criminal process by conditioning the dismissal on rehabilitation. 40 Departmental guidelines provide criteria detailing the type of defendant eligible for diversion. 4 1 These guidelines often are supplemented by U.S. Attorneys to reflect local fac42 tual and political exigencies, and caseloads. The opportunity to plea bargain represents another point at which discretion enters the prosecutorial process. Department of Justice directives channel this discretion 43 although individual U.S. Attorneys may limit plea negotiations and agreements further as they deem appropriate. 4 4 Decisions to dismiss an indictment or an information border closely on initial decisions regarding whether to prosecute or to decline. In general, decisions to dismiss are within the U.S. Attorney's discretion, 45 although in some instances they require notice to Congress 46 or consent by the defendant. 47 One illustration of the parallel between charging and dis-
40. Id. 1-12.010 (Jan. 10, 1977). In many cases diversion frees the defendant from any further contact with the criminal justice system. Id. 1-12.020 (if diversion is successful charges will be dismissed and no permanent record will be maintained). See note 154 infra. 41. Defendants who are addicts or who have had two or more prior felony convictions or who are accused of violating the public trust or of committing an offense related to national security or foreign affairs, or who should be diverted to the state are not eligible for diversion. Id. 1-12.100 (Mar. 17, 1977).
42. See, e.g., U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, SCREENING
AND PAPERING MANUAL 41 (1978). Despite the complex legal problems attendant the termination of diversion, see note 154 infra, only general policy is provided for recharging the diverted defendant. U.S. ATT'y MAN. 1-12.500 (Jan. 10, 1977). 43. For example, a directive prohibits attorneys from dismissing charges against corporate officers in return for the corporation's plea of guilty. U.S. ATT'y MAN. 9-2.147 (Jan. 10, 1977). Additional directives require approval by the appropriate section of the Criminal Division or by higher authority before attorneys may make plea agreements that dismiss counts from an indictment. Id. 9-2.146 (Jan. 10, 1977). 44. Although the United States Attorneys' Manual discusses precedent, conflicts between departmental and local policies in practice tend to be resolved on an ad hoc basis. Typical of local decisions are requiring pleas to the lead or top count, reducing a charge by only one degree, and dismissal only after testimony as a prosecution witness. 45. U.S. ATT'y MAN. 9-2.050 (Jan. 10, 1977) (unless otherwise required, U.S. Attorneys may move for dismissal without authorization, although they should seek advice from agencies who referred cases). 46. Selective Service cases cannot be dismissed without notification to Congress. 50 U.S.C. app. 462(c) (1970). 47. For example, the government may not move for dismissal of criminal charges after commencement of trial-or perhaps just after incurrence of jeopardy-without the defendant's consent. FED. R. CRIM. P. 48(a). See United States v. Chase, 372 F.2d 453 (4th Cir.), cert. denied, 387 U.S. 907, 913 (1967).
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missing is a Department directive forbidding the dismissal of indictments procured by Criminal Division attorneys without the consent of the Division. 48 Such a parallel is not always present, however, between a dismissal and a declination. The Organized Crime and Racketeering Section of the Criminal Division controls the institution and progress of cases brought under the Racketeer Influenced and Corrupt Organizations Statute 49 including the presentation of evidence to grand juries, investigations,5" dismissals, 5' and, to an extent, the award of damages to crime 2 victims. 5 It maintains no similar controls on declinations, despite the 53 lesser degree of external control they receive. The next policy decisions, those relating directly to trials themselves, are the most difficult to formulate. Although various U.S. Attorneys certainly have developed informal trial policies based on local law and practices of the local bench, the Department has developed no centralized policy except in particularly complex trial situations.5 4 Policy guidelines do cover posttrial decisionmaking. U.S. Attorneys must seek approval of the Criminal Division to issue a superceding indictment containing more counts than a previously dismissed indictment. 5 5 Presently, the only sentencing policy is one that prohibits a request for the death penalty unless approved by the Attorney General. 5 6 Because the Solicitor General must make decisions regarding certain appeals " the U.S. Attorney's position becomes secondary. 58 In fact, differences of opinion arising after control of a case has shifted from the U.S. Attorneys to the Department of Justice have led to reversals by 59 consent for policy reasons.
48. U.S. ATT'Y MAN. 9-2.146(1) (Jan. 10, 1977). 49. Organized Crime Control Act of 1970, ch. 10, 18 U.S.C. 1961-1968 (1976). 50. U.S. ATT'y MAN. 9-110.101 (Jan. 17, 1977). 51. Id., read in conjunction with id. 9-2.133(s), 146 (Jan. 10, 1977). 52. 18 U.S.C. 1964(c) (1976), discussed in U.S. ATT'y MAN. 9-110.142 (Jan. 17, 1977). See also FED. R. EvID. 803(22) (exception to hearsay rule to permit introduction of prior felony conviction to prove any fact essential to the judgment). 53. U.S. ATT'Y MAN. 9-2.111 (Jan. 10, 1977). See note 35 supra. 54. The Department has formulated guidelines for criminal tax fraud or evasion trials, in which a coherent policy often is necessary to organize consistent theories of proof. CRIM. TAx MAN., supra note 24, at 61. 55. U.S. ATT'y MAN. 9-2.141 (Jan. 10, 1977). 56. Id. 9-2.151 (Jan. 10, 1977). 57. 28 U.S.C. 518(a) (1970) (appeals to Supreme Court). 58. U.S. ATT'Y MAN. 9-2.170 (Jan. 10, 1977) (U.S. Attorneys must seek prior authorization for all appeals from Solicitor General through Appellate Section of the Criminal Division). 59. E.g., Ackerson v. United States, 419 U.S. 1099 (1975)(confession of error because Department violated Petite policy); Redmond v. United States, 384 U.S. 264 (1966) (confession of error because Department violated policy against nonprosecution of consensual, noncommercial mailing of obscene literature).
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III. THE FEASIBILITY OF AN ADMINISTRATIVE

LAW MODEL FOR STRUCTURING PROSECUTORIAL DISCRETION
Although the Department of Justice, through the United States Attorneys' Manual, has attempted to direct prosecutors' discretion to some extent, the breadth and scope of their discretion remains. 60 Courts traditionally are reluctant to review prosecutors' discretionary acts. 61 Some commentators, concerned about relatively unbridled discretion, recommend that the principles of administrative law be applied to prosecutorial decisionmaking. 62 The administrative law model, however, is fraught with problems. A. Administrative Law Principles Applied to Criminal Law Enforcement Congress enacted the APA to make uniform the procedures and practices of executive and independent agencies. 6 3 Because the statutory definition of "agency" 64 is all inclusive but for enumerated exceptions, 65 the APA "apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions." 66 Clearly the Department of Justice is an agency within the meaning of the APA. 67 Further, in view of the discretion that U.S.
60. DISCRETIONARY JUSTICE, supra note 3, at 27-51 (1969); Bubany & Skillem, supra note 2, at 483-89. 61. See note 1 supra. 62. See note 3 supra. In fact, dicta in a recent Supreme Court case seems to add fuel to this proposal. See Imbler v. Pachtman, 424 U.S. 409, 431 & n.33 (1976) ( 1983 civil action for damages) (although prosecutor has absolute immunity as an advocate, there exists a point in his preparatory activities when he stops acting as prosecutor and acts only as an administrator subject to review). This decision was not a full review of a prosecutor's actions as an administrator. See notes 109-55 & accompanying text infra. 63. S. REP. No. 752, 79th Cong., 1st Sess. 1 (1945). 64. " ' [A]gency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency." 5 U.S.C. 551(1) (1976). 65. See 5 U.S.C. 551(l)(A)-(H) (1976). The Act specifically excludes the Congress and the federal courts. Id. 551(I)(A), (B). Interestingly, however, the statute does not exclude the President. Whether Congress intended or the Constitution would permit the APA to apply directly to the President remains unresolved. See Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971). 66. Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971). Cf. Lassiter v. Guy F. Atkinson Co., 176 F.2d 984 (9th Cir. 1949) (test for APA agency is whether agency has authority to act with sanction of government). Although the primary purpose of the APA is to regulate agencies involved in rlemaking and adjudication, government organizations that perform neither function nevertheless may be agencies within the meaning of the APA. Soucie v. David, 448 F.2d 1067, 1073 & n.15 (D.C. Cir. 1971). 67. The Department of Justice is statutorily defined as an executive department. 5 U.S.C. 101 (1976); 28 U.S.C. 501(1970). Executive departments in turn are statutorily defined as agencies within the meaning of the APA. 5 U.S.C. 105 (1976). Although U.S. Attorneys may be appointed
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Attorneys exercise under their independent authority,6 8 they may be considered to comprise a series of agencies within the Department of Justice. 69 Since the Department of Justice is an agency, the APA's procedures for legislative rulemaking and adjudicatory hearings could be applied to it. Not all APA procedures are directly applicable to the Department, however. First, the APA prescribes notice and comment procedures for promulgating legislative rules ,70 which bear the full force and effect of law. 7 1 Before an agency may promulgate legislative rules, however,
or removed by the President, they generally are subject to direction by the Attorney General and the Department of Justice. See 28 U.S.C. 541-550 (1970). 68. 28 U.S.C. 547 (1970). 69. A contrary view-that prosecutors are not within the APA's definition of agency-is based on the fact that the position of District Attorney, later U.S. Attorney, developed before the APA. Bubany and Skillem, supra note 2, at 477 n.20. While it is true that the U.S. Attorney has a broad historical base, there was no discussion of the prosecutor in the legislative history of the APA to refute the operation of clear statutory language. Congress gave lengthy consideration to the meaning of "agency," but their primary concerns were foreign and military affairs, not criminal prosecutions. H.R. REP. No. 1980, 79th Cong., 2d Sess. 18-19 (1946). An argument could be made, of course, that U.S. Attorneys are mere officers of the court, and thus fall under the federal court exception. See 5 U.S.C. 551(l)(B) (1976). Such an argument would contradict a long series of cases that have denied judicial review of prosecutorial discretion based upon a theory of separation of powers. See, e.g., cases cited note I supra. But see United States v. Jacobs, 547 F.2d 772 (2d Cir. 1976), cert. granted, 431 U.S. 937 (1977); notes 359-68 & accompanying text infra. 70. 5 U.S.C. 553 (1976). At least 30 days before the formal rulemaking proceeding, the agency must publish in the Federal Register a notice of proposed rulemaking and a request for comments from all interested persons. Id. 553(b). At an announced time and place an agency must accept written material in response to the notice, and may allow oral presentations. Id. 553(c). Some agency enabling acts require a full oral hearing at this point in the process. See, e.g., Federal Food, Drug, and Cosmetic Act, 701(e)(2)-(3), 21 U.S.C. 371(e)(2)-(3) (1970) (oral hearing required where responses received to notice of proposed rulemaking). Cf. United States v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956) (statutory requirement of oral hearing may be obviated where applicant does not state a valid basis for hearing). After considering the material presented, the agency may make a formal promulgation and must publish its rules or regulations in the Federal Register. Thirty days after publication, if no other period is prescribed, the rule will take effect under the sanctions of the enabling act. Id. 553(d). It will remain in effect until some further action, either formal agency action or congressional alteration of the enabling act, one-house veto, or a judicial declaration that the rule or regulation exceeds the agency's delegated authority. See, e.g., id. 553(e).
71. K. DAVIS, ADMINISTRATIVE LAW TEXT 126 (3d ed. 1972). Rules must be made pursuant
to the powers granted to the agency by the legislature, and to be valid they must be "constitutional within the granted power." Id. When these requirements are met, the courts will grant the full force and effect of the law to agency rules. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (upholding discretionary determination by Board of Immigration Appeals because regulations promulgated under 19(c) of the Immigration Act of 1917 granted Attorney General's complete discretion to the Board); Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676 (9th Cir.), cert. denied, 338 U.S. 860 (1949); Oil Shale Corp. v. Morton, 370 F. Supp. 108 (D. Colo. 1973) (on remand from the Supreme Court, statements made by the Interior Department were found to have force and effect of law whether statement was characterized as "legislative" or "interpretative").
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Congress must expressly or implicitly delegate its own legislative power.72 Since Congress has not delegated rulemaking power to the Department of Justice,7 3 the APA procedure for legislative rulemaking is not now available to structure prosecutorial discretion. Agencies may develop interpretative rules74 without possessing specifically delegated rulemaking power or adhering to APA procedures, because they have inherent discretion to decide how to carry out generally delegated powers and duties. 7 5 All statutes are subject to interpretation by the agency designed to enforce or administer them. Depending upon the complexity of the statute and the agency's expertise with respect to the particular rule, reviewing courts 7 6 will give great weight to the agency's interpretation. 7 7 Similarly, a longstanding interpretative ruling that
72. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) ("delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility"); K. DAVIS, ADMINISTRATIVE LAW TEXT 145 (3d ed. 1972). When making rules, an agency must adhere to the express or implied intent of the authorizing statute. Id. Congress often does delegate rulemaking power because an agency may have more expertise to apply in developing details of administration. See Fahey v. Mallonee, 332 U.S. 245 (1947) (delegation to Federal Home Loan Bank Board to prescribe by regulation term and conditions upon which conservator could be appointed for federal savings and loan association was constitutional); K. DAVIS, ADMINISTRATIVE LAW TEXT 34-36 (3d ed. 1972). 73. The duties and authority of the Attorney General, the U.S. Attorneys, and their assistants are broad, but specific. Any litigation involving the United States, an agency, or an officer thereof is reserved to the Department of Justice. 28 U.S.C. 516 (1970). Any officer of the Department of Justice can be sent to any state or district within the United States to attend to the interests of the United States. Id. 517 (1970). See also id. 510-514, 515 (authority for legal proceedings); id. 519 (supervision of litigation); id. 521 (publication of opinions); id. 522-526. Every U.S. Attorney has a broad list of duties to perform within his district. See id. 547. 74. The distinction between legislative and interpretative rules is difficult to draw precisely. Davis explained: Whenever a legislative body has delegated power to an agency to make rules having force of law . . . the rules the agency makes pursuant lo the granted power have the same force as a statute if they are valid .... At the opposite extreme, where no power has been delegated to the agency to make law through rules, the agency's public statements of what it will do in enforcing or in adjudicating may be deemed "interpretative rules." K. DAVIS, ADMINISTRATIVE LAW TEXT 126-27 (3d ed. 1972). 75. Id.; DISCRETIONARY JUSTICE, supra note 3, 68-70, 220. 76. Judicial review of an agency rule will not occur until the parties satisfy the doctrines that a dispute be ripe for judicial decision, see, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967) (ripeness doctrine based on policy "to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties"), and that all prescribed administrative remedies be exhausted. See, e.g., Myers v. Bethlehem Shipbldg. Corp., 303 U.S. 41, 50-51 (1938) (longstanding policy that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed remedy has been exhausted"). 77. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (involving determination of whether waiting time was working time under the act) (while rulings, interpretations, and opinions of adminis-
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has withstood a change in the authorizing statute through reenactment 78 may gain almost the status of a legislative rule in the eyes of the court. Theoretically, the administrative law model for structuring prosecutorial discretion would capitalize on a court's deference to the Department of Justice's interpretation by rule of Congress' intentions regarding the meaning and proper level of enforcement of the criminal law. During the time that prosecutors have been formulating policy, 7 9 the argument may go, Congress has tampered with substantive criminal law 8 0 and rules of court procedure, 81 but has not spoken regarding enforcement matters. Thus, although it has not specifically approved any single prosecutorial policy, courts can infer Congress' intention to permit the Department of Justice sufficient authority to develop and use prosecutorial policy to bridge the gap between appropriated resources and the amount of resources necessary to enforce the criminal law fully. As will be seen, courts are unlikely to give the Department's interpretations such great weight. 8" The Second APA procedure, which governs agency adjudication, 8 3 arises when an administrative proceeding is required by statute to be on the record 8" unless the issues are subject to trial de novo by a court. 8 5
trator are not controlling upon courts, they do constitute "body of experience and informed judgment to which courts and litigants may properly resort for guidance"); K. DAVIS, ADMINISTRATIVE LAW TEXT 129 (3d ed. 1972). 78. K. DAVIS, ADMINISTRATIVE LAW TEXT 126-27 (3d ed. 1972). 79. See notes 21-59 & accompanying text supra. 80. See, e.g., Act for the Protection of Foreign Officials and Official Guests of the United States, Pub. L. No. 92-539, 201, 86 Stat. 1072 (1972) (amending 18 U.S.C. 1201 (1970)) (kidnapping); Act of July 16, 1952, Pub. L. No. 82-554, 18, 66 Stat. 722 (amending 18 U.S.C. 1343) (mail fraud); Act of Oct. 3, 1964, Pub. L. No. 88-619, 1, 78 Stat. 995 (amending 18 U.S.C. 1621) (perjury). Congress has been working on a major bill to codify the many scattered criminal statutes. Criminal Code Reform Act of 1977, S.1437, 95th Cong., Ist Sess., 123 CONG. REC. S6,831 (daily ed. May 2, 1977). 81. See, e.g., Act of Dec. 12, 1975, Pub. L. No. 94-149, 3, 89 Stat. 806 (amending 18 U.S.C. 3491 (1970)) (authentication of foreign documents); Federal Rules of Criminal Procedure Amendments Act of 1975, Pub. L. No. 94-64, 3(1)-(11), 3(13)-(35), 89 Stat. 370-76 (amending various rules of FED. R. CRIM. P.). 82. See notes 109-55 & accompanying text infra. 83. 5 U.S.C. 554 (1976). In contrast to legislative and interpretative rulemaking, individual adjudicatory decisions apply retrospectively and affect only a single interested party. K. DAVIS,
ADMINISTRATIVE LAW TEXT
123-24 (3d ed. 1972).
84. 5 U.S.C. 553(c)(1976); see United States v. Florida E. Coast Ry. Co., 410 U.S. 224, 237-38 (1973) (in action challenging rulemaking proceeding by Interstate Commerce Act, Court held under 5 U.S.C. 553(c) that statutory use of words "on the record" trigger strict hearing requirements of APA, 5 U.S.C. 556-557). 85. 5 U.S.C. 554(a)(1) (1976). Other exceptions include matters relating to the selection or tenure of employees. See id. 554(a)(2)-(6).
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By APA terms, these adjudicatory procedures do not apply to prosecutors' decisions because such decisions are not required by statute to be "determined on the record after opportunity for agency hearing." 86 In addition, a prosecutor's decision to proceed with criminal charges will automatically be reviewed de novo by a court. In the case of prosecutorial discretion, however, the de novo trial exception is not broad enough to provide the safeguards intended in the 87 APA because decisions not to prosecute also affect defendants' rights, but are not required by statute to be on the record and do not receive de novo judicial review. 8 8 Davis has recommended therefore that prosecutors go beyond APA requirements and apply adjudicatory procedures to discretionary decisions in a manner similar to the National Labor Relations Board's procedure for handling unfair labor practice complaints from private parties. 8 9 The NLRB has established an appeals process 90 that allows a disappointed charging party to challenge the general counsel's decision not to issue a complaint. 9 ' At every stage of the decisionmaking process, the NLRB makes available to parties reasons for a declination. 9 2 Although Department of Justice advisement procedures for certain white collar crime and complex litigation cases are not unlike the NLRB procedure in form, 93 they are more discretionary in substance. This discretion is necessary because public knowledge of approval to charge by special grand jury or by information might give a defendant earlier access to details of the government's case. The discretion in the charging proc86. 5 U.S.C. 554(a) (1976). Statutes merely describe criminal behavior, leaving prosecutors to consider prosecution and to seek indictments without notice to the defendant. Cf. id. 554(c)(1) (agency must give interested parties notice and opportunity to present arguments). 87. Decisions to prosecute are not the only decisions that have an immediate adverse impact on an individual. A decision to divert a defendant, for example, may condition his diversion on nominal rehabilitation. See notes 40-42 & accompanying text supra; note 154 infra. 88. Davis speculates that "[perhaps nine-tenths of the abuse of the prosecuting power involve failure to prosecute, and courts normally have no occasion to review such cases." DISCRETIONARY JUSTICE, supra note 3, at 191. 89. DISCRETIONARY JUSTICE, supra note 3, at 205-07. See notes 233-37 & accompanying text supra. 90. See 29 C.F.R. 101.1-.43 (1977). 91. Id. 101.6 (1977). If the complainant challenges the prosecutor's decision not to issue a complaint, the entire file in the case is sent to Washington, D.C., where the case is fully reviewed by the general counsel with the assistance of his staff. Id. See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 140-48 (1975) (explaining procedure) (intra-agency memoranda exempt from disclosure required by FOIA).
92. 29 C.F.R. 101.1-.10 (1977).

93. U.S. ATT'Y MAN. 9-2.132 to .133 (requiring express authorization before instituting cases under enumerated statutes, including those covering espionage, trading with the enemy, commodities futures trading, federal elections, mail fraud).
ess needs controls because of its impact on defendants, 9 4 but external controls such as those provided by the APA would inappropriately subject prosecutorial decisionmaking to public scrutiny. Davis and others have recommended that prosecutors adhere to the APA or similar administrative procedures to develop and articulate policies regarding prosecutorial discretion. 95 Of the three major administrative law procedures- legislative rulemaking, interpretative rulemaking, and adjudication-only interpretative rulemaking is practically available for use in controlling criminal prosecutorial discretion. B. Federal Court Jurisdiction to Review Agency Action If the Department of Justice, as an agency, were to follow Davis' suggestion and promulgate interpretative rules, putative defendants or charging agencies might desire to challenge those rules in court. 96 The ability of these potential parties to obtain judicial review of administrative action would determine in part the viability of the proposal to apply administrative law to prosecutorial discretion. Jurisdiction is a prerequisite to judicial review, and the well-founded rule is that federal courts have only the jurisdiction that Congress has
94. There is some control already. If a U.S. Attorney decides not to prosecute a case that has been referred to him by an agency, he should make a record of the decision and the reasons for declining. U.S. ATT'Y MAN. 9-2.020 (Jan. 17, 1977). 95. DISCRETIONARY JUSTICE, supra note 3, at 80-84, 220. See also note 2 supra. 96. Theoretically, parties could challenge the substance of the rule as unconstitutional or ultra vires, or the process by which it was promulgated as being contrary to notice and comment procedures. See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 763-65 (1969) (dictum) (rule promulgated without following the rulemaking requirements of the APA was invalid); Fook Hong Mak v. Immigration and Naturalization Serv., 435 F.2d 728 (2d Cir. 1970) (alien argued that a regulation forbidding an adjustment of his immigration status was invalid because the statute authorized the Attorney General to use discretion in making adjustments); NLRB v. Pittsburgh Plate Glass Co., 270 F.2d 167 (4th Cir. 1959) (Board may not base unit determinations on past rulings where the statute calls for a case-by-case analysis). Cf. United States v. Aarons, 310 F.2d 341 (2d Cir. 1962) (even though substantive rules were required to be published in the FederalRegister, failure to publish did not immunize defendants, who had actual knowledge of order, for prosecution for violating it). Unless Congress were to delegate its legislative power to make rules, however, the Department's rules could be only interpretative, and as such would not necessarily be subject to APA notice and
comment procedures. 5 U.S.C. 553(b)(A) (1976); K. DAVIS, ADMINISTRATIVE LAW TEXT 126
(3d ed. 1972). Alternatively, challenging parties may wish to raise procedural objections on the grounds that once the Department voluntarily followed notice and comment procedures it was obliged to adhere to them throughout the promulgation of that particular rule. They might also want to object on the substantive ground that an agency must follow its own regulations once promulgated. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); notes 353-55 & accompanying text infra.
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granted. 9 7 Section 10 of the APA states that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof," 98 and continues, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 99 Until recently the majority of courts held that section 10 created an independent basis for federal jurisdiction 100 to review agency action, although the statutory language created significant conflict among the circuits. 10 ' The Supreme Court ended the inter-circuit controversy in Califano v. Sanders when it held that the APA did not contain an independent grant Although the Court recognized that it of subject matter jurisdiction.' previously had assumed such jurisdiction to exist, 10 3 it stated that an intervening act of Congress 104 undercut the rationale of any such assumption.' 0 5 The intervening act eliminated the jurisdictional amount in all
97. U.S. CONST. art. III; Ex parte McCardle, 74 U.S. (7 Wall.) 507 (1868). Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803). 98. APA, 10(a), 5 U.S.C. 702 (1976). 99. Id. 10(c), 5 U.S.C. 704 (1976). 100. See Califano v. Sanders, 430 U.S. 99, 104 n.4 (1977). The Court indicated that the First, Fourth, Fifth, Seventh, Ninth, and District of Columbia Circuits considered 10 to be an independent grant of subject matter jurisdiction. Id. (citing Sanders v. Weinberger, 522 F.2d 1167 (7th Cir. 1975); Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975); Pickus v. United States Bd. of Parole, 507 F.2d 1107 (D.C. Cir. 1974); Bradley v. Weinberger, 483 F.2d 410 (1st Cir. 1973); Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970); Brennan v. Udall, 379 F.2d 803 (10th Cir. 1967); Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961)). See also Industrial Broker-Dealer's Trade
Ass'n v. SEC, 442 F.2d 132 (D.C. Cir. 1971); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRA-
TIVE ACTION 164-65 (abr. student ed. 1965) (section 10 is an independent grant of subject matter jurisdiction). The Second Circuit was undecided. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976). 101. The Third Circuit has reasoned, for example, that the APA is clearly remedial in nature, not jurisdictional, and that nothing in the Act serves to extend the jurisdiction of the federal courts to cases not within their competence. Zimmerman v. United States, 422 F.2d 326, 330 (3d Cir. 1970) (action to review determination made by Commissioner of Patents concerning government employee). See also Bramblett v. Desobry, 490 F.2d 405 (6th Cir. 1974); Twin Cities Chippewa Tribal Council v. Minnesota, 370 F.2d 529 (8th Cir. 1967). 102. 430 U.S. 99, 105 (1977). 103. Id. The Court had assumed "with little discussion" that the APA embodies an independent grant of subject matter jurisdiction in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (Court found no evidence that Congress intended to restrict access to judicial review of Department of Transportation rulings); Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967) (Federal Food, Drug, and Cosmetic Act does not forbid pre-enforcement review of regulations promulgated under that Act); Rusk v. Cori, 369 U.S. 367, 372 (1962) (appellee was not confined to the procedures prescribed by 360(b), and (c) of the Immigration and Nationality Act, but also could pursue a remedy under the APA and Declaratory Judgment Act). 430 U.S. at 105. 104. Act of Oct. 21, 1976, Pub. L. No. 94-574, 90 Stat. 2721 (amending 28 U.S.C. 133 1(a) (1970)). 105. 430 U.S. at 105.
PROSECUTORIAL POLUCY
cases brought under the federal question jurisdictional statute. 10 6 The Court inferred by negative implication that Congress had never intended the APA itself to vest such jurisdiction.10 7 As a result of Sanders, even if the Department of Justice were to promulgate interpretative rules controlling prosecutorial discretion, the federal judiciary could review its actions as an administrative agency only in a mandamus proceeding or if a federal question were presented. 10 8 C. Limitations on Reviewability Even if plaintiffs had been able to satisfy APA jurisdictional requirements before Sanders, their ability to obtain judicial review of interpretative rules would have been independently barred by the APA reviewability provision. If they obtained federal question jurisdiction, either before Sanders or after, common law concepts of reviewability also would bar judicial review. 109 1. APA nonreviewability Section 10 of the APA 10o provides that judicial review is unavailable either when Congress precludes it by statute or when "agency action is committed to agency discretion by law." I' Congress has never precluded judicial review of the criminal prosecutor by statute. To the contrary, it has required or permitted judicial review of many actions taken by prosecutors. "12
106. 28 U.S.C. 1331(a) (1970 & Supp. V 1975) (conferring jurisdiction to review actions brought against the United States or its agencies, officers, or employees in their official capacity). 107. 430 U.S. at 105. Three considerations counsel a cautious view of the holding. First, as the Court admitted, it reversed its prior assumption. Second, the Court's opinion is at odds with prior circuit court opinions, which reached their decisions independently. Third, given the Court's reliance on statutory construction and legislative history to hold that the APA is nonjurisdictional, it is possible that Congress may reverse the Court's holding. 108. 28 U.S.C. 1331 (1970 & Supp. V 1975) (federal question); id. 1361 (mandamus). 109. This discussion assumes that plaintiffs also have met traditional standing requirements. See, eg., Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29 (3d Cir. 1976) (plaintiffs who owned property surrounding proposed dam had standing to sue under 10 of APA because economic interests constituted actual or threatened injury-in-fact). See generally United States v. Richardson, 418 U.S. 166 (1974) (a direct injury, and not merely a general interest common to all members of the public, is required for standing); Sierra Club v. Morton, 405 U.S. 727 (1972) (noneconomic injury may be sufficient to show standing); Baker v. Carr, 369 U.S. 186 (1962) (plaintiffs must allege a "personal stake" in the outcome to assure concrete adverseness). 110. The discussion of reviewability under the APA is necessary even after Sanders in light of its potentially questionable permanency. See note 107 supra. II. 5 U.S.C. 701(a) (1976). In light of Sanders, the clauses must be interpreted as a further limitation on the scope of judicial review. 112. See, e.g., 18 U.S.C. 1968(h) (1976) (recipient of RICO civil investigative demand may seek review); id. 2518 (procedure for interception of wire or oral communications).
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The second exclusion, when applied to actions of a criminal prosecutor, presents an inordinately complex problem. 1 13 There are four subclauses in the exclusion. Judicial review is precluded when (a) agency action is (b) committed to (c) agency discretion (d) by law. 1 4 Each subclause is significant, so that the provision calls for a rigorous analysis similar to that used in examining the elements of a criminal offense. For the sake of clarity the elements will be examined in inverse order. The term "by law" most often connotes statutory law, since the APA is presumed to apply to agencies whose powers are delineated in their enabling statutes. 11 5 The office of the criminal prosecutor developed early in American history, 116 however, and statutes dealing with that office conveyed only a generalized sense of a prosecutor's duties. 117 Therefore, the prosecutor's roots lie in common law and custom. 1 8 Because Congress enacted the APA in part "to restate the law of judicial review," 119 the question arises whether the APA precluded further common law development of the review process by making judicial review solely a matter of statutory interpretation. At the time of enactment, the Attorney General, relying on legislative history, concluded that because section 10 "deals largely with principles" it "also leaves the mechanics of judicial review to be governed by other statutes and by judicial rules." 120 Many of the cases in which courts have refused to review prosecutorial discretion have occurred since the APA's enactment in 1946,121 despite the absence of specific statutes committing discretion to
113. See L. JAFFE, supra note 100, at 374-76. 114. 5 U.S.C. 701(a) (1976). 115. See Harper v. Levi, 520 F.2d 53, 68 (D.C. Cir. 1975) (calling 701(a)(2) a "statutory exemption") (Voting Rights Act of 1965 required Attorney General to review reapportionment plans); Strickland v. Morton, 519 F.2d 467 (9th Cir. 1975) (Classification and Multiple Use Act of 1964 committed to Secretary of Interior's discretion the administration of public lands according to standards of national interest and public welfare); Knight Newspapers, Inc. v. United States, 395 F.2d 353 (6th Cir. 1968) (statute committing to Postmaster General's discretion all refunds to be made). Cf. Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29, 35-36 (3d Cir. 1976) (discretion given by Water Resources Development Act of 1974 to administrator was not great enough to fall within the very narrow exception). See also L. JAFFE, supra note 100, at 372-76.
116. J.
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139 (1977).
117. Id. at 135. 118. This dichotomy apparently lies behind Bubany and Skillem's conclusion that the office of the criminal prosecutor should not be construed to be an agency subject to the APA. See Bubany and SkiIlem, supra note 2, at 477 n.20. But see notes 64-69 & accompanying text supra (APA definition of agency clear, and legislative history does not preclude agency status of Department).
119. UNITED STATES DEPARTMENT OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 9 (1947) [hereinafter cited as ATTORNEY GENERAL'S MANUAL ON APA].
120. Id. at 93. 121. See, e.g., note I supra.
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prosecutors. The "by law" exclusion, therefore, can be construed broadly enough to take account of common law developments in discretion as well as statutory developments. The second subclause, "agency discretion," provides a very narrow exception to judicial review. The bare finding that an agency exercises some discretion does not serve to exclude its action from judicial scrutiny.' 22 A statute that grants the agency power must show clearly and convincingly that Congress seeks to restrict access to judicial review of the exercise of those powers. 1 23 The exception is applicable to situations in which statutes are drawn in such broad terms that, in any given case, there is no specific law to apply. 124 The statute prescribing duties of U.S. Attorneys provides that they "shall prosecute for all offenses against the United States." 125 The provision, read literally, could mean that U.S. Attorneys' duties are strictly ministerial because Congress has limited the absolute discretion of the U.S. Attorney through the statutory term "shall." If "by law" is to include common law developments, however, courts' traditional reluctance to review prosecutors' actions 126 instructs that the term "shall" not be read as a word restricting discretion, but as a word only ascribing the duty to enforce laws to U.S. Attorneys,' 27 and incorporating the prosecutor's inherent common law discretion. 128 The third requirement, "committed to," ffindamentally limits the application of the exclusion. The word "committed" is coupled with the scope of review provisions of the APA. 1 29 The APA provisions favor
122. See Fook Hong Mak v. Immigration and Naturalization Serv., 435 F.2d 728 (2d Cir. 1970) (alien argued that a regulation forbidding an adjustment of his immigration status was invalid because the statute authorized the Attorney General to use discretion in making adjustments); NLRB v. Pittsburgh Plate Glass Co., 270 F.2d 167 (4th Cir. 1959) (Board may not base its determinations on past rulings when statute calls for a case-by-case analysis). 123. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (no indication in Transportation Act that Congress intended to prohibit access to judicial review); Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967). But see K. DAVIS, ADMINISTRATIVE LAW TREATISE 28.08, at 36 (1958) (cases decided before APA denied judicial review, not because "clear and convincing" commitments were present, but because circumstances made unreviewability desirable). 124. S. REP. No. 752, 79th Cong., 1st Sess. 26 (1945); Harper v. Levi, 520 F.2d 53, 68 (D.C. Cir. 1975). 125. 28 U.S.C. 547 (1970) (emphasis added). 126. See notes 137-55 & accompanying text infra. 127. In 1966, Congress substituted the word "shall" for the words "it shall be the duty of." Law of Sept. 6, 1966, Pub. L. No. 89-554, 4(c), 80 Stat. 618 (reenacting 5 U.S.C.). 128. Functionally, of course, the U.S. Attorney still has substantial discretion to decide which prosecutions deserve the expenditure of limited enforcement resources. See notes 165-68 & accompanying text infra. 129. 5 U.S.C. 704-706 (1976).
332
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the review of agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 130 Because agency action that is an abuse of discretion cannot be "committed to" agency discretion, the courts are freed from this limitation on judicial review.131 In addition, the line between valid exercises of discretion and abuses of discretion may help to determine what cases fall within agency discretion even under the term of the statute providing that U.S. Attorneys "shall" enforce criminal law. 1 32 The final element requires that there be "agency action." According to the statute, " 'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 133 Each of the terms used in the definition also is defined in the Act. 1 34 In total, the definition of agency action is all inclusive. Taking together the construction of all four terms, the definition of nonreviewable actions by the criminal prosecutor can be stated as follows: An action, or a failure to act, is precludedfrom judicial review if it is properly within the scope of the prosecutor's discretion as stated by the legislature or the judiciary.1 35 Because common law survived the
130. Id. 706(2)(A) (emphasis added). 131. Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 317 (1958); K. DAVIS, ADMINISTRATIVE LAW TEXT 514-15 (3d ed. 1972).
132. This construction of the statute is consistent with the argument that judicial review is precluded not when the exclusion arises, but only in so far as the action is discretionary. See K. DAVIS, ADMINISTRATIVE LAW TREATISE 28.08, at 33 (1958); ATTORNEY GENERAL'S MANUAL ON APA, supra note 104, at 95 (Congress intended to dovetail new APA with preexisting statutory provisions). The construction is consistent also with section 10(e) of the APA, which requires the reviewing court to hold unlawful agency actions that abuse agency discretion, and which some argue controls the reviewability question. See K. DAVIS, ADMINISTRATIVE LAW TEXT 514-18 (3d ed. 1972). 133. 5 U.S.C. 541(13) (1976). 134. Id. A "rule" is defined as an agency statement of particular or general applicability that prescribes law, policy or procedures for the future. An "order" is an agency's final disposition of a matter, other than rulemaking, including licensing. A "license" is an agency permit or any other form of permission. A "sanction" involves an agency's imposition of a penalty, and may include withholding of property, revocation of a license, imposition of a fine, assessment of damages, or any other compulsory or restrictive action. "Relief' may take the form of a grant of money, recognition of a claim, or other beneficial action. Id. 551(4), (6), (8), (10), (11). 135. The complexity of the statute creates some ambiguity. See, for example, the debate between Professor Davis and Raoul Berger regarding the proper extent of nonreview under the committed-toagency-discretion exception. K. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES 28.16
(1976); Berger, Administrative Arbitrariness-A Rejoinder to Professor Davis' "Final Word," 114 U. PA. L. REV. 816 (1966); Berger, Administrative Arbitrariness-A Reply to Professor Davis, 114 U. PA. L. REV. 783 (1966); Berger, Administrative Arbitrariness:A Sequel, 51 MINN. L. REV. 601 (1967); Berger, Administrative Arbitrariness: A Synthesis, 78 YALE L.J. 965 (1969); Berger, Administrative Arbitrariness and JudicialReview, 65 COLUM. L. REV. 55 (1965); Davis, Administrative Arbitrariness-A Final Word, 114 U. PA. L. REV. 814 (1966); Davis, Administrative Arbitrari-
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APA's enactment and became a part of its exclusions as well as its definitions, whatever the common law of judicial review of the prosecutor as administrator is, it is also the law of judicial review under the statute. The APA therefore adds no greater review than courts would apply under the common law. 2. A functional analysis of the common law The common law of reviewability is important to examine for two reasons. 1 3 6 First, it holds the key to reviewability under the APA. Second, it determines reviewability also of administrative cases brought under federal question jurisdiction. Saferstein, 137 in making a functional analysis of the common law of agency reviewability, isolated nine factors that courts may consider in deciding whether to review a particular agency action. 138 According to him a court will consider in general: how great a burden review placed on the efficient operation of courts and agencies; and how great is the likelihood that unfairness will escape uncured if review is denied. The effect of granting or denying
review can best be analyzed in small pieces .... Only in rare cases,
however, is any of these factors, standing alone, controlling; rather, their cumulative effect on the interests of the individual, the agency, 13 9 and the courts determines whether review should be denied. Of Saferstein's nine factors, four are particularly applicable to judicial 140 review of prosecutorial discretion.
ness is Not Always Reviewable, 51 MINN. L. Rev. 43 (1967); Davis, Administrative Arbitrariness-A Post Script, 114 U. PA. L. REV. 823 (1966). 136. See L. JAFFE, supra note 100, at 375-76 (little reason to make "rather meaningless and useless distinction" between reviewability under APA and common law). 137. Saferstein, Non-Reviewability: A Functional Analysis of "Committed to Agency Discretion," 82 HARV. L. REv. 367 (1968). Saferstein intended his analysis to be used by courts as a threshhold inquiry into whether to review agency determinations. He believed that an initial assessment of the potential impact of each particular instance of judicial intervention would expand the opportunities for review currently available to dissatisfied petitioners. Use of his suggested formula and encouragement of partial review would open the courts to administrative review without imposing an overwhelming burden on the judiciary. Id. at 370-71. 138. Saferstein found it necessary to consider the ways by which a court might narrow its review of discretion because some have argued that under the APA's committed-to-agency-discretion exception, a court must review any case in which abuse of discretion is alleged. Id. at 371-77 (comparing and contrasting views of Raoul Berger and Judge Friendly with Professor Davis). 139. Id. at 379. 140. Saferstein's other five factors are (I) expertise and experience required to understand the subject matter of agency action, (2) the managerial nature of the agency, (3) the ability of the reviewing court to ensure the correct result, (4) the need for expeditious operation of congressional programs, and (5) the existence of other methods of preventing abuse of discretion. Id. at 380-95. Saferstein concluded his discussion of the nine factors by suggesting a doctrine of partial review-
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a. Broad agency discretion 141 As a rule, the broader the statutory grant of authority to an agency, the 14 2 more reluctant the courts have been to review the agency's decisions. The major reason for this policy of nonintervention is that, absent strict statutory guidelines, agencies with broad discretionary powers are not likely to overreach the scope of that power. Courts in such cases would wish to avoid being forced to rubber-stamp inadvisable agency rulings by a party's inability to demonstrate clear abuse of agency discretion. The lack of congressional strictures on the prosecutorial process makes it difficult to define the limits of discretion. Because it has been the courts that have developed the current state of the law on prosecutorial discretion,' 43 one might argue that they should not now withhold judicial review under a claim of inadequate statutory definition. U.S. Attorneys are advocates for the government, however, and operate under the statutory mandate that they "shall enforce" the laws.1 4 4 Courts are most likely to continue viewing prosecutors' discretion broadly, thus allowing prosecutors room to make advocates' enforcement decisions that courts
45 may not wish to enforce.1
b. Impropriety of judicial intervention 146 The impropriety of judicial intervention is essentially a political factor that may account for a court's declining review even when no other factor counsels such restraint.' 47 Sometimes courts will refrain from intervening because of subject matter in controversy, such as national security. More often, the basis for restraint "is the impropriety of a permathat a court, by dissecting its reasons for wanting to avoid review, could isolate particular elements of agency action that are reviewable before remanding the case to the agency. Id. at 395-96. Since the focus in this section is direct attacks on interpretative rulemaking, the partial review concept will not be examined here. 141. Id. at 380-82. This factor reflects the considerations underlying the APA standard of reviewability. See note 114 & accompanying text supra. 142. Saferstein, supra note 137, at 380. 143. See notes 1, 2, 5 supra. 144. 5 U.S.C. 547 (1976). 145. Cf. notes 271-368 & accompanying text infra (some actions reviewable). 146. Saferstein, supra note 137, at 386-87. 147. Intervention by the judiciary into administrative decisions often raises "political questions" that are perceived to pose a threat to the prestige and good will of the courts. Id. See generally Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517, 567-83 (1966); cf. United States v. Cowan, 524 F.2d 504 (5th Cir. 1975) (courts do have the authority to deny motions to dismiss filed by U.S. Attorneys in the process of plea bargaining) (relying on United States v. Nixon, 418 U.S. 683 (1974) for the proposition that the separation of powers doctrine does not preclude the enforcement of reciprocity of authority).
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nently appointed judge's interfering with the functions of an elected or presidentially appointed official carrying out his own policies or those of an elected superior." 148 In the Department of Justice, each incoming administration sets its own prosecutorial priorities by realigning the various litigating divisions, limiting personnel authorization, and redistributing funds. Although current political policy may influence the priorities of politically appointed upper 14 9 level attorneys, whose positions are characterized by high turnover, rarely is the individual criminal case affected by national politics. Ideally, therefore, this "impropriety" factor should operate to restrain review only when the conflict involves a separation of powers issue of constitutional dimension, and not when the conflict merely enters the political arena. "Impropriety" is a catch-all factor, however, and courts may allow perceived political conflicts to weigh heavily in their decisions to decline review. c. Necessity of informal agency decisionmaking 150 Without an adequate record of the process by which a particular agency decision has been made, a court would be unable to review the validity of agency action. It would become immersed instead in the issue of what degree of documentation to require of an agency. It is not always possible or desirable to create a reviewable record, however, for some agencies must be free to act on an informal basis. Because the criminal prosecutor usually exercises his discretion informally, without a full record, his decisions are not amenable to judicial review. The trend may be toward greater amounts of documentation for a variety of reasons-legal, administrative, and academic.'-" This formal documentation is restricted to case administration, however, and has not
148. Saferstein, supra note 137, at 386-87. 149. See notes 6-8 & accompanying text supra. 150. Saferstein, supra note 137, at 387-89. 151. Some of the material needed to create a reviewable record is already compiled by investigators and prosecutors. See, e.g., Jencks Act, 18 U.S.C. 3500 (1976). Review of arrest files is restricted by judicial decree, however, due to the personal risks involved. Utz v. Cullinane, 520 F.2d 467 (D.C.Cir. 1975). In the civil area, only one prosecutor, the National Labor Relations Board, has initiated a full documentation process of the decision to prosecute. See NLRB v. Sears, Roebuck &
Co.. 421 U.S. 132 (1975); DISCRETIONARY JUSTICE, supra note 3 at 205-07; notes 89-92 & ac-
companying text supra. The U.S. Attorney for the District of Columbia has led other offices in this respect with its computerized PROMIS system. The U.S. Attorney in the Northern District of Illinois has made similar administrative efforts and the result in both cases has been an improvement in completeness of records. See Neumann, supra note 2, at 23-24 & nn.5-6 (giving citations).
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been required generally to record decisions made under policy and 152 guidelines. d. Quantity of potentially appealable agency actions 153 Were courts to open the floodgates to review an interpretative rule or the procedure under which a rule was promulgated in one case, they might justifiably anticipate many other defendants to beseech them to review other agency action. Current diversion programs siphon off a certain percentage of potential defendants, 154 thus reducing the general caseload. To open the courts to review of prosecutorial action probably would partially defeat those controls on court time and efficiency. 1 55 Even if floods of claims would not in fact be asserted, courts would anticipate such an occurrence, and their perception is enough to cause them to decline review. Courts may invoke the four relevant factors delineated by Saferstein as arguments against judicial review of the prosecutorial decisionmaking process: broad agency discretion, impropriety of judicial intervention, necessity of informal agency decisionmaking, and quantity of potentially appealable agency actions. Although some factors may be cured separately by imposing additional administrative controls, the four cumulatively have prevented courts from reviewing prosecutors' actions and are likely to continue to do so.
152. But see U.S. ATT'Y MAN. 9-2.020 (Jan. 17, 1977) (U.S. Attorney should reflect in his files his reasons for declining cases referred by an agency). The record here may be the most cursory, apparently, because the guideline is phrased only in advisory terms. Rabin has suggested a form for each U.S. Attorney to complete reflecting every action taken. Rabin, supra note 2, at 1084-86. 153. Saferstein, supra note 137, at 392-93. 154. Prosecutors have long exercised discretion by referring individuals to social service or other agencies. Comment, PretrialDiversion: The Threat of Expanding Social Control, 10 HARV. C.R.C.L. L. REV. 180, 183 (1972). Programs for diversion of drug and narcotics addicts are reviewed in Note, Addict Diversion: An Alternative Approach for the Criminal Justice System, 60 GEO. L.J. 667 (1975), and in Note, Diversion of Drug Offenders in California, 26 STAN. L. REV. 923 (1974). See generally Cox, ProsecutorialDiscretion: An Overview, 13 AM. CIuM. L. REV. 383 (1976); Peterson, The Dade County PretrialIntervention Project: Formalizationof the Diversion Function and Its Impact Upon the Criminal Justice System, 28 U. MIAMI L. REV. 86 (1973); Zimring, Measuring the Impact of PretrialDiversion from the Criminal Justice System, 41 U. CHI. L. Rev. 224 (1974). 155. As a solution to this floodgate problem, Saferstein endorses Judge Friendly's view that a policy of partial review would stem the potential flood of requests for judicial review. Saferstein, supra note 137, at 393. See Cappadora v. Celebrezze, 356 F.2d I (2d Cir. 1966) (Judge Friendly's view).
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D. Summary The synthesis of administrative law and process with the process of criminal prosecution, though conceptually valid, would not effectively restrain the scope of prosecutorial discretion. Notice and comment procedures for promulgating legislative rules cannot be required of federal prosecutors because Congress has not delegated authority to promulgate legislative rules to the Attorney General or the Department of Justice. Davis recommends that the Attorney General develop interpretative rules of enforcement policy and procedure pursuant to his authority to enforce criminal statutes. The process of developing such policy within the Department may have some limiting effect on prosecutorial discretion, and the very existence of such policy in writing may serve to inhibit abuses of discretion. The force of Davis' argument, however, is that courts, by judicial review, will require the Department to make and enforce rules and will guarantee that in making rules the agency has not abused its discretion substantively or procedurally. At this point, the administrative model breaks down. By whatever administrative process policy may be developed, jurisdiction for judicial review currently cannot rest on the APA, according to Califano v. Sanders. Review, of course, may be requested on the basis of federal question or mandamus jurisdiction. In the future whether jurisdiction is secured under the APA or otherwise, courts are likely to avoid reviewing challenges to interpretative rules. If jurisdiction could vest under the APA, courts would escape review under the committed-toagency-discretion exception; if jurisdiction vests under other statutes, courts would apply their scruples of nonreviewability as illustrated by Saferstein's functional analysis. IV. THE VALIDITY OF ARGUMENTS MADE AGAINST
ARTICULATING PROSECUTORIAL POLICY
As discussed in Part III, the direct imposition of the administrative law framework onto the criminal prosecutors' decisionmaking process is not feasible. A legal analysis reveals that the principles of jurisdiction and reviewability defeat even the usefulness of interpretative rulemaking. This observation is not intended to argue that the Department of Justice should not articulate and enforce policy that channels individual prosecutors' discretion. Certainly, the Department has the power to impose internal controls on discretion. Although at present the U.S. Attorneys, politically appointed by the President and the Senate, actually exercise a significant amount of local autonomy and work quite independently of the
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Department of Justice,' 5 6 this situation need not continue. The Attorney General and the Department of Justice are statutorily required to supervise the conduct of all litigation and to direct U.S. Attorneys in the discharge of their duties.15 7 The Attorney General appoints all Assistant U.S. Attorneys and special attorneys within the U.S. Attorneys' offices.' 58 The Department, through the Attorney General's appointment and supervisory powers, therefore, has significant means by which to regulate the discretion of the litigators, the U.S. Attorneys. 5 9 Although the statutory authority is clear, there is substantial resistance to the Department's centralized control of prosecutors' discretion. Objections have not appeared in the literature,' 60 and they merit full discussion here. Through the response to each major objection, it will become clear that there is no major obstacle to the articulation and internal enforcement of prosecutorial policy. Steps to be taken toward structuring discretion, to be discussed in Part V, need not involve such a rigidity as the administrative law framework would require. A. Authority to Establish Policy Opponents to the development of prosecutorial policy may assert two arguments to show that federal prosecutors are without authority to articulate policy. Both assertions have some basis in truth, but neither is sufficient to conclude that prosecutors may not develop and articulate policy. The first argument asserts that only Congress can make criminal laws,' 6 ' only the courts can impose sanctions under the criminal laws,
156. See notes 7-8 & accompanying text supra. 157. 28 U.S.C. 515, 516, 519 (1970). 158. 28 U.S.C. 542, 543 (1970). 159. The Attorney General, as the head of the Department of Justice, 28 U.S.C. 503 (1970), is also empowered to prescribe regulations for the conduct of all employees and for the creation, preservation, and use of records. 5 U.S.C. 301 (1976). He thus could exercise significant control over how U.S. Attorneys supervise their own local offices in each district. See 28 U.S.C. 510 (1970) (Attorney General may delegate his authority); id. 526(a)(1) (Attorney General may investigate records of U.S. Attorneys); id. 542(b), 543(b) (Attorney General may remove Assistant U.S. Attorneys and special attorneys); id. 545(b) (Attorney General may determine official stations of U.S. Attorneys and Assistant U.S. Attorneys within the districts for which they are appointed). See generally Rabin, supra note 2, at 1038-42; Ruff, supra note 8, at 1201-08. 160. Two authors at one time affiliated with the Department of Justice have restricted their articles to specialized areas of crime. See Malone, supra note 6 (private welfare and pension plans); Ruff, supra note 8 (Hobbs Act). 161. Whereas state criminal law rests on common law, federal criminal law is based on a theory of positive law. There is no common law of federal crime in the absence of a statute directing that an act be punished as a crime. United States v. Hudson, 11 U.S. (7 Cranch) 31 (1812); R. PERKINS, CRIMINAL LAW 26 (2d ed. 1969). The United States Constitution, a document of enumerated powers, vests exclusive legislative power in the Congress.
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and only the executive can prosecute; nowhere is the executive granted authority to alter the criminal law by making policy. This argument essentially amounts to interjection of the separation of powers doctrine. Although the doctrine is constitutional in scope, it is only a theory, not an express constitutional provision. It is implied in the structure of the Constitution, yet neither historical nor contemporary analysis supports the theory to the extent of proscribing the development of prosecutorial policy. 16 2 The legislation that has been passed by Congress and upheld by courts indicates implicitly that the prerequisite constitutional authority 163 does exist. The second argument is a permutation of the separation of powers doctrine. It concedes that the Constitution may not bar the development of prosecutorial policy, that Congress may delegate authority to develop rules within the framework of criminal statutes. It asserts, however, that Congress never has delegated power to the Department of Justice to formulate rules of enforcement that are effectively less proscriptive of conduct than are the parallel criminal statutes. Because the Department apparently does not supply Congress with policy positions as a matter of course, 164 there are few specific reactions from Congress by which to measure its acquiescence in the extent to which the Department, through policy, limits enforcement of criminal law. To respond to the second argument, therefore, it is necessary to look at the development of criminal legislation. The purposes for Congress' enactment of various criminal statutes are as diverse as the political factors that precipitated each enactment. 165
162. 1 M. FERRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 21, 63-70, 226. 230, 244, 292 (1937); 2 id. at 23, 32, 121, 185, 600, 660; 3 id. at I 11, 616; 4 id. at 46; A. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 AD. L. REV. 299 (1976). 163. See notes 172-77 & accompanying text infra. 164. The Department provides individual members of Congress with policy statements upon request, but usually does so in response to requests for facts rather than for litigation policy. Whether the Department's Office of Legislative Affairs forwards any policy to the congressional judiciary committees or to individual congressmen on a regular basis is unknown. 165. Congress applied sanctions to assassination, assault, or kidnapping of a President, 18 U.S.C. 1751 (1976). in response to the lack of federal authority to deal effectively with the assassination of President Kennedy. S. REP. No. 498, 89th Cong., 1st Sess. 4, reprinted in [19651 U.S. CODE CONG. & AD. NEWS 2866, 2869. Similarly, Congress enacted sanctions against organized crime, e.g., 18 U.S.C. 1951 (1976) (interference with commerce by threats or violence), in response to a problem that had become anathema to a broad spectrum of American society. H.R. REP. No. 966, 87th Cong., 1st Sess. 2, reprinted in [1961] U.S. CODE CONG. & AD. NEWS 2664, 2665. These legislative enactments, both recommended by the Executive Department, see Letter to The Vice President from Attorney General Nicholas deB. Katzenbach (March 8, 1965) (threats on the life of a president), contained in S. REP. No. 498, 89th Cong., 1st Sess. 6-7, reprintedin [1965] U.S. CODE CONG. & AD. NEWS 2866, 2871-72; Letter to The Speaker of the House from Attorney General
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That diverse purposes underlie different sections of the criminal code, that people disagree on the purposes of some sections, and that various Congresses may not agree on the best means of effecting those purposes result in an overcriminalization of federal criminal law. 16 6 As the President's Commission on Law Enforcement and the Administration of Justice noted, "The criminal code of any jurisdiction tends to make a crime of everything that people are against, without regard to enforceability, changing social concepts, etc. The result is that the criminal code becomes society's trashbin." 167 From this "trashbin approach" to legislation evolves the reasoning that imputes to Congress some intent to delegate policymaking power. The sheer volume of violations created by the broad statutory coverage of criminal behavior necessitates the exercise of extensive prosecutorial discretion. Because this need is quite obvious to even casual observers, it must be presumed that Congress is aware of the breadth and use of discretion. Although it has this knowledge, Congress has taken no legislative action to date to reverse the broad use of discretion.1 68 Therefore,
Robert F. Kennedy (April 6, 1961) (organized crime), contained in H.R. REP. No. 966, 87th Cong.. Ist Sess. 4, reprinted in [1961] U.S. CODE CONG. & AD. NEWS 2664, 2666, were not significantly opposed because lawmakers and constituents agreed on the seriousness of the problems and the means of addressing them. In contrast, more broad-based criminal legislation such as the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 921-928, 2510-2520, 3501, 3502 (1976), and the Criminal Code Reform Act of 1977, S.1437, 95th Cong., Ist Sess., 123 CONG. REC. S6,831 (daily ed. May 2, 1977) (introduced by Senators McClellan and Kennedy) have drawn widespread commentary and criticism. See, e.g. 114 CONG. REC. 16,065, 16,271 (1968), 113 CONG. REC. 21,085, 21.187, 21,812 (1967) (debates on Omnibus Crime Control and Safe Streets Act). These latter examplescodifications, as contrasted with legislation-embody manifold principles in addition to the usual more specific elements of a crime. The Omnibus Crime Control and Safe Streets Act of 1968, in title II, covering criminal law and procedure, provided broad schemes for the admissibility of confessions, reviewability of admission in evidence of confessions in state cases, admissibility in evidence of eyewitness testimony, procedures in obtaining writs of habeas corpus, wiretapping, electronic surveillance, and firearms control. Pub. L. No. 90-351, tits. 1, 2, 3, 82 Stat. 197 (1968); Pub. L. No. 90-618, tit. 1, 82 Stat. 1213 (1968). 166. See Friedman, supra note 2, at 441-44 (overcriminalization, overbroad and outmoded legislation, paucity of resources). For example, federal law against gambling, while attempting to control only interstate gambling operations, dovetails with state law enforcement efforts and with criminal tax implications to present a "statutory facade that is wholly devoid of loopholes." 2 ABA COMM'N
ON ORGANIZED CRIME, ORGANIZED CRIME AND LAW ENFORCEMENT 75 (1952). See, e.g., 18
U.S.C. 1302, 1952, 1953, 1961 (1976) (mailing gambling paraphernalia, interstate and foreign travel, racketeering enterprise, racketeer influenced and corrupt organizations); 18 U.S.C. 1511. 1952(c) (1976) (obstruction of state and local law enforcement, preemption).
167. PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS 107 (1967) (quoting FBI representative).
168. Congress may take legislative action in the future to endorse some policies. For example. the obscenity statute in the proposed Criminal Code Reform Act of 1977 would incorporate the Redmond policy by removing from federal jurisdiction prosecutions for the mailing of obscene material
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Congress has at least acquiesced in prosecutors' current use of impliedly granted "lawmaking" powers. If individual prosecutors possess this greater "lawmaking" power, the Department cannot be denied, in the name of the nondelegation doctrine, the lesser implied power to limit the exercise of discretion and thereby to limit the extent of such "lawmaking." Prosecutors who are opposed to policy articulation may argue in the alternative that, whatever showing is made that Congress has implicitly delegated legislative powers to the Department, for the Department to articulate and publish policies of limited enforcement would undermine the deterrent effect of criminal law. 169 Because deterrence is one of Congress' main concerns in enacting criminal statutes, the argument might continue, prosecutors should defer to Congress in taking the initiative to establish policy. There is no statistical proof that criminal sanctions deter criminal behavior; indeed such proof may be impossible to obtain. 17 0 The factual presumption that there is a deterrent effect is itself no more than philosophical. The increasing complexity of the criminal law calls into question the presumption that defendants have knowledge of the law; it therefore undermines the presumption of deterrence. Because only knowledge of the law insures any possible deterrent effect, the argument of deterrence speaks not so much against development of policy as against its publication.17 1 Thus, it would only beg the question to argue that, for the sake of deterring criminal behavior, the Department should wait for Congress to narrow discretion by narrowing criminal statutes. Neither constitutional doctrine nor congressional policies preclude the development of prosecutorial policy, nor do they argue convincingly that it is wiser not to articulate such policy. The theory that Congress has implicitly delegated authority to the Department of Justice to prosecute or not as it sees fit is strengthened by Congress' explicit delegation of an analogous authority. By some statutes, Congress has delegated to an administrator the authority to include
between consenting adults. S.1437, 95th Cong., 1st Sess. 1842, 123 CONG. REC. 56,831 (daily ed. May 2, 1977); S. REP. No. 605, 95th Cong., 1st Sess. 850 & n.77, 853 (1977). See notes 16-17 & accompanying text supra. 169. Abrams paraphrases such an argument: "Where prosecutorial policy immunizes some conduct otherwise prohibited by statute, and the public learns of this fact, presumably some individuals will no longer be discouraged from engaging in that conduct by the threat of criminal sanctions." Abrams, supra note 2, at 29. 170. See, e.g., Forst, Deterrent Effect of Capital Punishment: A Cross-State Analysis of the 1960"s, 61 MINN. L. REv. 743 (1977) (empirical study). 171. Abrams, supra note 2, at 29. See notes 254-70 infra.
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certain acts in categories of prosecutable crimes, 17 2 much as prosecutors may exclude certain acts from the range of prosecutions. Federal gun control laws, for example, authorize and instruct the Secretary of the Treasury to promulgate regulations requiring submission of information on weapons exchanges. 173 These statutes make willful failure to provide information required by those regulations punishable as a felony. 174 Thus, the Secretary effectively has authority to state what shall be an element of the crime by establishing regulations as to what must be reported. 1 75 Similarly, the Attorney General has authority under the subversive activities laws 176 to regulate agents of foreign states by developing reporting requirements, and under other legislation to proscribe possession or importation of particular drugs or controlled substances. 177 On one hand, prosecutorial discretion may be distinguished from these analogous delegations by noting that in enacting statutory sanctions for regulatory violations, Congress intended primarily to develop an administrative scheme and used criminal sanctions only as secondary support. In the case of statutorily proscribed behavior to which prosecutorial discretion applies, Congress applied sanctions to certain behavior as primary tools of enforcement and relied on administration only as a support. In addition, the negative implication of Congress' explicit delegation in certain cases may be that in all other cases it wants prosecutors not to exercise their discretion to further define criminal acts. These distinctions are unrealistic, however. Instead of arguing the negative implication, one can as easily infer that Congress, recognizing prosecutorial discretion in cer-
172. Administrative "filling-in" of criminal provisions usually creates no unconstitutional delegation of legislative power. In re Kollock, 165 U.S. 526 (1897). But cf. Adamo Wrecking Co. v. United States, 98 S. Ct. 556 (1978) (Congress did not intend to empower administrator of EPA to make a regulation serve as an emission standard by his mere designation). 173. 18 U.S.C. 926 (1976). 174. Id. 924. 175. Federal statutes controlling explosive devices present similar criminal sanctions upon a regulatory scheme. See 841-848. A more vexing illustration involves the classification of information for purposes of national security. Unauthorized disclosure of classified documents is criminal, yet the capacity to classify information is widespread, extending beyond the President and his Cabinet officials, to a variety of sub-Cabinet presidential or secretarial appointees and bureaucrats. Classification occurs on an ad hoc basis, presenting little or no opportunity for congressional approval. See Exec. Order No. 11,905, 3 C.F.R. 90 (1977) (administrative bases for classification, declassification, and review of information). The criminal sanctions for unauthorized disclosure are in 50 U.S.C. app. 783(b) (1970) and 18 U.S.C. 1905 (1976). Significant interpretative caselaw has emasculated the criminal sanction to the extent of requiring "harmful intent." Scarbeck v. United States, 317 F.2d 54 (D.C. Cir. 1962), cert. denied, 374 U.S. 856 (1963); Scales v. United States, 260 F.2d 21 (4th Cir. 1958), aff'd, 367 U.S. 203 (1961). 176. 18 U.S.C. 2386(B)(1) (1976). 177. 21 U.S.C. 811(a) (1970).
tain areas, has sought to institutionalize and therefore to constrict it by formal regulation. The distinction between the "primary" and "secondary" roles of a criminal sanction is at best only theoretical because, for both roles, the sanction is predefined and the prosecutor effectively decides what particular acts to bring within the scope of the sanction. Both situations cause one to question the propriety of permitting one agency or one prosecutor both to make and to enforce criminal law, and further demonstrate the need to structure the exercise of prosecutorial discretion. B. Practicality of Developing Policy Once it is clear that no constitutional authority, non-delegation doctrine, or deterrence theory bars policy development, skeptics may question whether there is any proven need for articulating prosecutorial policy. No statistical studies prove inter- or intra-district disparity in the procedures of prosecuting federal criminal cases. 178 The lack of proof, however, belies only the primitive state of methodology and does not 9 demonstrate that no uniform policy is needed. 17 To the contrary, in a recent report to Congress, the GAO perceived that the local nature of enforcement efforts and the substantial discretion of each U.S. Attorney created significant disparity between some districts in the seriousness of crimes that were prosecuted.1 80 Because regional disparities have been
178. Key problems with empirical research projects are their propensity to be merely descriptive
studies, e.g., Rabin. supra note 2. to be statistical studies of prior referrals or cases that stop at the perceptive level, e.g., INSTITUTE FOR LAW AND SOCIAL RESEARCH, THE ROLE OF THE VICTIM IN THE PROSECUTION OF VIOLENT CRIMES (1977); RAND CORP., INDICATORS OF JUSTICE:
MEASURING THE PERFORMANCE OF PROSECUTION. DEFENSE AND COURT AGENCIES INVOLVED
IN FELONY PROCEEDINGS (1976), or to be statistical studies that stop at elementary policytype identification, e.g., J. JACOBY, THE PROSECUTOR'S SCREENING FUNCTION: A POLICY
PERSPECTIVE (1977). See also, R. Frase, The Decision to Prosecute Federal Criminal Charges-A
Quantitative Study of Prosecutorial Discretion (1977) (unpublished manuscript submitted to the Na-
tional Institute for Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, United States Department of Justice; grant no. 75-NI-99-0114).
179. Despite slow advancements of methodology for primary research, commentators still have
recognized that numerous opportunities exist for each prosecutor to establish his own policy and have called for articulations of uniform policy. Malone, supra note 6, at 466-94; Ruff, supra note 8, at 1201-05. See also notes 2. 5 supra.
180. COMPTROLLER GENERAL OF THE UNITED STATES, REPORT TO THE CONGRESS: U.S. ATTORNEYS Do NOT PROSECUTE MANY SUSPECTED VIOLATORS OF FEDERAL LAWS 17-20
(Feb. 27. 1978). The study did not involve detailed statistical research, but relied instead on interviews with U.S. Attorneys and their assistants in four districts, examination of declination records in those districts, and reviews of prosecutive guidelines. Interviews also were conducted in four other districts. Id. at 29. The main focus of the GAO report was the high rate of declinations by U.S.
Attorneys, and it concentrated especially on the lack of sufficient resources. The GAO drew two
major conclusions relevant to uniformity of enforcement: 1) that disparity does exist among districts,
and 2) that some of the disparity is caused by inconsistent policy development and enforcement. Its
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shown at other points of the criminal justice process, most often in sentencing procedures,' 8 1 one reasonably could infer that disparities in enforcement exist throughout the nation. An unstructured and regionalized prosecutorial decisionmaking process does not support the traditional values that persons in like circumstances should be treated alike and that the administration of justice should be impartial and evenhanded. The excuse that we have no statistical proof of disparity is an insufficient objection to the need for articulation of prosecutorial policy. Contemporary policy seems to be based more on mere legal or political theory than on any demonstration that the policy as applied will promote that intended goal.' 8 2 For example, the Petite nondual prosecution policy 183 relies on the idea that federal law enforcement should support state enforcement whenever Congress has not preempted state law. Recently a study in one district revealed that in less than one-half of the prosecutions that were declined in reliance on the Petite policy had the defendant been convicted or had a charge been pending in state courts. 184 The study concluded that, in many cases, the reference to "state prosecution" is a statement of policy rather than a fact; that is, that such cases ought to be prosecuted by state rather than federal authorities, even if state authorities do not actually pursue such cases.' 85 This finding emphasizes the need for centralized control and adequate supervision to assure that U.S. Attorneys are following articulated policy consistently. Although future policy may be based most appropriately on quantitative demonstrations of disparity in discretionary decisionmaking and in effectiveness of applying existing policies, research is not yet so sophistisolution, like the United States Attorneys' Manual, manifested concerns about communication, and
about uniform and evenhanded enforcement. The GAO suggested that the Attorney General review individual policies and guidelines developed by all U.S. Attorneys to insure maximum practical uniformity in federal prosecutions. It is apparent from the report that the GAO either is unaware of the Manual or gives it little serious attention as a unifying force.
181. REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON CRIMINAL SENTENCING, FAIR AND CERTAIN PUNISHMENT 103 n.5 (1976) (citing A. PARTRIDGE & W. ELDRIDGE, THE SECOND CIRCUIT SENTkNCING STUDY: A REPORT TO THE JUDGES OF THE SECOND CIRCUIT (1974)); Tiffany, Avichai, & Peters, A Statistical Analysis of Sentencing in Federal Courts: Defendants Convicted After Trial, 1967-68, 4 J. OF LEGAL STUD. 369 (1975) (explores the weight given to legitimate and illegitimate sentencing factors). See also Gregg v. Georgia, 428 U.S. 153, 199 (1976) (recognizing discretion in sentencing). 182. R. Frase, supra note 178. 183. See notes 12-14 & accompanying text supra. 184. R. Frase, supra note 178, at 64-67. 185. Id. at 67. At first, Frase's conclusion seems to argue against the usefulness of policy articulation. As a single district study, and given its preliminary nature, however, the Frase study only highlights the need for more centralized research based on policy effectiveness. Frase concedes the understatement of prosecution figures in state courts, id. at 93, and only longer term research can achieve true accuracy
19781
cated. There is no reason to delay articulating needed policy, however, for contemporary policies were not developed on such statistics. C. Publication of Articulated Enforcement Policies and Guidelines Whether to publish policies, guidelines, and directives once they have been articulated presents one of the most emotional issues in the debate over prosecutorial discretion. Prosecutors may disapprove of publication because they anticipate that it will undermine the deterrent effect of criminal sanctions, because they wish to guard their ability to use discretion, or, most importantly, because they fear that defendants will raise violations of policy as a defense to criminal prosecution. The basis for their concerns over publication is well founded, for much information is accessible under the Freedom of Information Act (FOIA). 18 6 Their anticipations of results, however, are unfounded, and the Department might safely engage in even greater publication than the FOIA requires. The Department's freedom from the burden of litigating its policy and guidelines will depend, paradoxically, upon its willingness to articulate policy and to enforce it by means of internal controls. 1. Must policy be disclosed? Under the original APA, many agencies withheld information from the public and used the APA's provisions as authority.18 7 In 1966, Congress amended the APA with the FOIA, intending to open the administrative process to public view.18 8 The FOIA was amended significantly in
186. 5 U.S.C. 552 (1976). 187. E.g., United States v. Hayes, 325 F.2d 307 (4th Cir. 1963) (although not published in Federal Register, Comptroller General's designation of one of his employees to certify copies of records in the GAO is valid exemption from APA as "matter relating solely to the internal management of an agency"); R.H. Macy & Co. v. Finley, 249 F. Supp. 778, 781 (D.D.C. 1966) (FITC refused to issue subpoena duces tecum because documents were the essence of internal administrative process, ordinarily privileged against disclosure in an adjudicative proceeding); Graber Mfg. Co. v. Dixon, 223 F. Supp. 1020, 1022 (D.D.C. 1963) (FTC denied permanent in camera status to plaintiff because irreparable injury would not result from disclosure). 188. Pub. L. No. 89-554, 80 Stat. 383 (1966) (codified at 5 U.S.C. 552 (1976)) [hereinafter cited as FOIA]. The House and Senate Reports disagreed on the interpretation of FOIA, see notes 193-97 infra, and most courts relied on the Senate interpretation as the one reflecting consideration by both houses. E.g., Department of the Air Force v. Rose, 425 U.S. 352, 362-67 (1976) (Court relied upon the Senate report, which construed the disclosure requirements broadly and the exemptions narrowly, because it was the only committee report before both houses of Congress).
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1974 189 to further restrict exceptions to disclosure, thus manifesting Congress' clear intent that all policy be made public. The Act provides that various material shall be made available for public inspection and copying, including "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register," 190 and "administrative staff manuals and instructions to staff that affect a member of the public" unless they are published and offered for sale. 191 The term "policy" is a generic catch-all in need of construction, and whether it should cover prosecutorial policy articulated by the Department of Justice is subject to some debate. The Department of Justice concedes that its policy is subject to FOIA; some U.S. Attorneys believe it is not. 1 92 The second clause concerning staff manuals and instructions clearly presents the issues of the Department's control of prosecutorial discretion and its obligation to publish policy. In its report on the original Act, the Senate indicated that it used the word "administrative" to distinguish disclosable documents from instructions pertaining to litigation. 193 The House interpreted the staff manual provision more conservatively, to require disclosure of agency materials that are the end product of administration, and seemed to exclude from the disclosure requirement guidelines like those contained in the United States Attorneys' Manual. 194 The Attorney General went even farther, believing it proper to withhold "standards and instructions which necessarily cannot be disclosed to the public." 195 These more conservative interpretations have been excised by the courts, 196 so that the Senate's test remains valid. Its distinction between
189. Pub. L. No. 93-502, 1-3, 88 Stat. 1561 (1974) (amending 5 U.S.C. 552 (1970)).
190. 5 U.S.C. 552(a)(2)(B) (1976).

191. Id. 552(a)(2)(c). 192. See Jordan v. United States Dep't of Justice, No. 76-0276 (D.D.C. Jan. 14, 1977). appeal docketed, No. 77-1240 (D.C. Cir. Jan. 26, 1977). See notes 249-53 & accompanying text infra. 193. S. REP. No. 813, 89th Cong., 1st Sess. 2 (1965) [hereinafter cited as S. REP. No. 813] ("to protect traditional confidential nature of instructions to Government personnel prosecuting violations of law in court"). 194. The committee stated: "Furthermore, an agency may not be required to make available those portions of its staff manuals and instructions which set forth criteria or guidelines for the staff ... in the selection or handling of cases, such as . . . criteria for defense, prosecution, or settlement of cases." H.R. REP. No. 1497, 89th Cong., 2d Sess. 7-8, reprinted in [1966] U.S. CODE CONG. & AD. NEWS 2418, 2424-25 [hereinafter cited as H.R. REP. No. 1497]. See notes 9-59 & accompanying text supra (provisions contained in United States Attorneys' Manual).
195. UNITED STATES DEPARTMENT OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE
FREEDOM OF INFORMATION ACT 17 (1967).
196. See, e.g., Hawkes v. IRS, 467 F.2d 787 (6th Cir. 1972), aff'g decision on remand 507 F.2d 481 (6th Cir. 1974). For additional discussion of Hawkes, see notes 210-18 and accompanying text infra.
1978]
administrative and litigation instructions amounts to a recognition that an attorney/client privilege bars disclosure of information on specific cases, 197 while more generally applicable policy and guidelines are freely disclosable. Rarely, however, has an instruction or manual entry been written restricting criminal prosecutorial discretion that addresses policy in a particular case before final decision is made in that case, so that the United States Attorneys' Manual and similar written policies are subject to FOIA disclosure provisions. Only if material falls within one of several specified exclusions will its disclosure not be required. 198 Of the nine specific exemptions, three merit discussion in relation to prosecutorial discretion: Exemption 2, dealing with internal personnel rules and practices, 19 9 Exemption 5, dealing with internal memoranda, 20 0 and Exemption 7, dealing with in0 2 1 vestigatory records. Exemption 2 is one of the most troublesome. In providing for nondisclosure of internal personnel rules and practices, it is so loosely defined as to create great disparity in agency interpretations. The Senate report on the FOIA gives as examples "rules as to personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and the like." 202 The House report significantly contradicts the Senate version of the purpose of Exemption 2.203 The House would
197. See note 238 infra. 198. Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976); Environmental Protection Agency v. Mink, 410 U.S. 73, 79 (1973); Montrose Chem. Corp. v. Train, 491 F.2d 63, 66 (D.C. Cir. 1974). An agency always is free in its discretion to release information that falls within an exemption. E.g., Ginsburg, Feldman & Bress v. FEA, No. 76-1759, slip op. at 44 (D.C. Cir. Feb. 14, 1978). 199. 5 U.S.C. 552(b)(2) (1976) exempts material "related solely to the internal personnel rules and practices of the agency." 200. 5 U.S.C. 552(b)(5) (1976) exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 201. 5 U.S.C. 552(b)(7) (1976) exempts: (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel. 202. S. REP. No. 813, supra note 193, at 8. 203. See, e.g., Vaughn v. Rosen, 523 F.2d 1136, 1140-43 (D.C. Cir. 1975). But see Ginsburg, Feldman & Bress v. FEA, No. 76-1759, slip op. at 19-23 (D.C. Cir. Feb. 14, 1978) (pending rehearing en bane) (Senate and House reports agree as to meaning of Exemption 2) (one judge dissenting).
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include in the exemption agency practices such as "[o]perating rules, guidelines, and manuals of procedure for Government investigators." 204 It would not include "routine" matters such as employee relations and
working conditions, 20 5 but these matters seem to be exactly the type
exempted in the Senate's interpretation. The difference between the Senate and House interpretations has led courts to disagree as to the scope of Exemption 2 when applied to any criminal trial or investigatory instructions or policy. In Department of the Air Force v. Rose ,206 the Supreme Court found that the majority of courts that had considered the scope of Exemption 2 in light of its legislative history agreed that the Senate report more accurately reflected the congressional purpose. 20 7 Those cases that relied on the House interpretation did so only "to prevent the circumvention of agency regulations that might result from disclosure to the subjects of regulation of the procedural manuals and guidelines used by the agency .... ", 208 Because Rose did not involve a situation in which there was a possibility of circumvention of procedure or regulations, the Court, affirming the court of appeal's decision by requiring disclosure, did not decide whether the potential for circumvention required the exemption of prosecutorial or investigative policy. 20 9 Several of the cases discussed in Rose therefore deserve special attention. In Hawkes v. IRS, 2 10 a criminal tax evasion case, the defendant made an FOIA request for the Internal Revenue Service's auditing manual. On first appeal, the United States Court of Appeals for the Sixth Circuit held that failure to use criminal discovery 2 11 would not jeopardize an FOIA
request. 21 2
2 The court, in an analysis of the staff manual requirement,
13
noted that Congress had inserted the word "administrative"
into the stat-
204. H.R. REP. No. 1497, supra note 194, at 10, reprinted in [1966] U.S. CODE CONG. & AD. NEWS 2418, 2427. 205. Id. 206. 425 U.S. 352 (1976). 207. Id. at 363-64. 208. Id. at 364. The Court noted that the potential for such circumvention was a primary concern of the House committee that drafted the report. Id. 209. Id. at 364. Respondents, who were student editors of the New York University Law Review, were researching disciplinary systems and procedures at the military service academies. The United States Air Force denied them access to case summaries of academy honor and ethics hearings. The materials sought had been distributed to cadets for the purpose of assuring their compliance with the honor codes. Hence, release of the summaries to the law students would have posed no danger to the effective operation of the codes at the academy. 210. 467 F.2d 787 (6th Cir. 1972), decision on remand aff'd, 507 F.2d 481 (6th Cir. 1974). 211. FED. R. CRIM. P. 16. 212. 467 F.2d at 793. 213. 5 U.S.C. 552(a)(2)(C) (1976). See note 191 & accompanying text supra.
ute to ensure that materials that might jeopardize investigation would not be disclosed. 2 14 The case was remanded for a determination of whether the disputed paragraphs should be exempt from disclosure.2 1 5 On remand the district court ordered disclosure on finding that the materials would not have the "sole effect" of enabling violators to escape detection. 216 The Internal Revenue Service appealed a second time, contending that the proper standard for disclosure was whether public knowledge of the information would "significantly impede the enforcement process." 217 The court of appeals affirmed their disclosure under the "sole 21 8 effect" rationale. In Cuneo v. Schlesinger,21 9 the United States Court of Appeals for the District of Columbia Circuit, without using the Hawkes "sole effect" test, recognized that elements of a defense contract audit manual that contained "secret law" should be disclosed. 2 20 Plaintiffs originally requested the entire manual. The government argued that those portions of the manual that detailed the scope, depth, and coverage of audits had to be kept secret to prevent a contractor from claiming improper costs in areas that would receive little or no scrutiny in an audit. 22 1 Because of
214. 467 F.2d at 794. 215. Id. at 797. 216. Hawkes v. IRS, No. C-70-409 (W.D. Tenn., filed Nov. 5, 1973) (cited in Hawkes v. IRS, 507 F.2d 481, 482 (6th Cir. 1974)). 217. Hawkes v. IRS, 507 F.2d 481, 483 (6th Cir. 1974). 218. Id. at 484. Similarly, in Stokes v. Brennan, 476 F.2d 699 (5th Cir. 1973), the court held that instruction and student manuals, training films, and other visual aids used to train inspectors in the Occupational Safety and Health Administration were administrative in nature and were not covered by either Exemption 2 or Exemption 7. Although the court relied most heavily upon Exemption 7, its decision again was based upon the concept of full disclosure, unless such disclosure would permit evasion of the administrative prosecution. See generally, notes 240-47 & accompanying text infra. The United States Court of Appeals for the District of Columbia Circuit recently cited Hawkes only for the lower court's "significantly impede" test, ignoring the court of appeal's more stringent threshold for exemption. Ginsburg, Feldman & Bress v. FEA, No. 76-1759, slip op. at 26 & n.19 (D.C. Cir. Feb. 14, 1978). The majority dissected the legislative history to show that Congress intended to protect law enforcement manuals that disclosed investigative techniques and procedures, thus using a less stringent test than Hawkes, although it did order disclosure of two additional parts of the refinery audit instructions and guidelines, which the district court had permitted to be withheld. The dissenting judge interpreted the act more liberally, and implied that he found none of the material to be exempt from disclosure. Final determination of the case will be made by the court sitting en bane. 219. 484 F.2d 1086 (D.C. Cir. 1973), cert. denied sub nom. Rosen v. Vaughn, 415 U.S. 977 (1974). 220. The parties agreed that "secret law" parts were "those which either create or determine the extent of the substantive rights and liabilities of a person affected by those portions." Id. at 1090. 221. Id.
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the plaintiffs concession in no longer requesting the entire manual, the 222 court avoided the question of the public nature of investigative policy. All prosecutorial guidelines and directives fall within one of two categories of information covered by FOIA: "statements of policy and interpretations ... adopted by the agency," 223 or "administrative staff manuals and instructions to staff that affect a member of the public." 224 Because prosecutorial policies are not "secret law" that determines substantive rights, the Cuneo test is inapplicable. Hawkes remains closest on its facts to cases involving prosecutors' manuals, and committee reports and case law together make it clear that Exemption 2 would prevent disclosure of prosecutorial policy only when the sole effect of disclosure would be to permit circumvention of existing regulations or law. No 225 prosecutorial policies fall clearly within this exemption. Exemption 5 relates to inter-agency or intra-agency memoranda or letters that would not be available by law to a private party in litigation with the agency. 2 26 The Senate report indicated that Congress, in recognition of the need for frank discussion of sensitive legal and policy matters, created this exemption to protect such written discussion from public scrutiny for the sake of governmental efficiency. 22 7 The committee felt the exemption should be construed as narrowly as would be "consistent with efficient Government operations." 228 The House report added as a qualification that "internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public." 229 When Congress passed the FOIA, the common law recognized two privileges: executive privilege and attorney/client privilege. The Supreme Court recognized this in NLRB v. Sears, Roebuck & Co. 2 30 in which it reviewed NLRB procedures for handling complaints of unfair labor prac-
222. The court remanded the case for a determination of which sections of the manual constituted "secret law." Id. at 1092. 223. 5 U.S.C. 552(a)(2)(B) (1976). 224. Id. 552(a)(2)(C). 225. See notes 10, 30-33 & accompanying text supra. 226. See note 200 supra. See also Renegotiation Bd. v. Grumman Aircraft Eng'r Corp., 421 U.S. 168, 184 (1975); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); Environmental Protection Agency v. Mink, 410 U.S. 73, 85-86 (1973); Merrill v. Federal Open Mkt. Comm.. 565 F.2d 778, 786 (D.C. Cir. 1977), cert. granted, 98 S. Ct. 2260 (1978); Polymers, Inc. v. NLRB. 414 F,2d 999 (2d Cir. 1969), cert. denied, 396 U.S. 1010 (1970). 227. S. REP. No. 813, supra note 193, at 9. 228. Id. 229. H.R. REP. No. 1497, supra note 194, at 10, reprintedin [1966] U.S. CODE CONG. & AD. NEWS 2418, 2428. 230. 421 U.S. 132, 150-55 (1975).
tices. NLRB complaint and referral procedures resemble the mechanics by which a U.S. Attorney seeks approval from the Criminal Division before proceeding with a case. 2 31 Sears therefore is instructive in applying Exemption 5 to decisions made pursuant to the prosecutorial discre232 tion. Complaints are brought to the attention of NLRB regional directors who forward to the general counsel's office their recommendations of whether to prosecute before the Board. 33 If the general counsel decides not to proceed with a case, he so informs the regional director and the complainant. 2 34 The Court in Sears held that because the general counsel's decision is final, it must be disclosed under the FOIA.2 35 If, however, the general counsel decides to prosecute, the material forwarded to him by the regional director is subject to Exemption 5 until the Board closes the case. 236 The rationale for this exemption is in accord with that for executive privilege; if the regional director anticipates that his recommendations will be made public, he may wish to temper his remarks rather than to give a full and frank opinion. 2 37 The attorney/client privilege applies whenever the material is prepared in consideration of forthcoming litigation. 238 In the case of a decision to proceed, all such material would be so privileged.
231. See notes 30-31 & accompanying text supra. 232. In Sears, to circumvent the requirement that agencies disclose "secret law," see notes 21921 & accompanying text supra, the NLRB general counsel argued that he played the role of a prosecutor in deciding whether to bring a case, and that he made no law. Without deciding whether public prosecutors make law, the Court rejected the analogy because, unlike criminal actions, an NLRB case required the presence of a private charging party, and resulted only in civil sanctions. The NLRB process, therefore, was not "wholly public or wholly private." 421 U.S. at 156 n.22. 233. Id. at 139. 234. Id. at 140-42. 235. Id. at 155. 236. Id. at 159. A significant factual difference between NLRB and U.S. Attorney processes arises at this point. For many years the U.S. Attorney's office never has closed a case formally until the five-year statute of limitations has foreclosed consideration of the case. If a suspect requests information on the disposition, the Department sends him a carefully worded letter to the effect that the matter is "not under active investigation." This letter preserves the government's right to proceed if additional, compelling evidence should appear. Although it has not been decided, the formal closing of a case, as well as research on the reasons for declination, probably would invoke some disclosure requirement under the FOIA and the holding in Sears. 237. A private litigant may override the government's claim of executive privilege by demonstrating special need in the context of his particular case. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 n.16 (1975). See also United States v. Nixon, 418 U.S. 683, 707-13 (1973) (generalized claim of privilege will give way to the specific needs of a criminal defense). 238. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975); Hickman v. Taylor, 329 U.S. 495, 510-11 (1947) (attorney "work product" privilege recognized in the context of civil discovery). See also J.H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223 (5th Cir.), cert. denied, 414 U.S. 822 (1973) ("work product" privilege applicable to government attorneys in litigation).
352
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In contrast to the Sears situation, prosecutorial guidelines do not deal with facts or theories of individual litigation, but state general policy applicable to a broad group of cases. Guidelines also are final products, as were NLRB memoranda once a decision was made not to prosecute. They could fall under Exemption 5, then, only if they were binding upon prosecutors who made decisions regarding individual cases. The Department of Justice asserts that policy stated in the United States Attorneys' Manual is not mandatory, but only advisory.2 3 9 Exemption 7 deals with investigatory files prepared by law enforcement agencies. 240 The Senate report on the original FOIA stated the specific purpose for the exemption: "These are the files prepared by Government agencies to prosecute law violators. Their disclosure of such files, except to the extent that they are available by law to a private party, could harm the Government's case in court." 241 The House report noted that the exemption covers investigatory files related to enforcement of labor and securities law as well as criminal law. 242 FOIA was not intended to provide defendants greater indirect access to investigatory files than they would have through discovery procedures in litiga2 43 tion. Both Exemptions 2 and 7 seek to prevent circumvention by a party of criminal or administrative investigations; Exemption 2 protects the process, and Exemption 7, the product. The purpose of Exemption 7 is quite limited to protecting factual files about particular instances of criminal or civil misconduct. Courts construed this exemption broadly for the first seven years, 2 4 4 but in 1974 Congress amended the Freedom of Information Act to insure a narrowing of these exemptions. 24 5 Congress clearly disapproved of cases that relieved the government of the burden of showing that disclosure of a particular investigative file would harm that case or adjudication. 2 4 6 The language of Exemption 7, particularly after the
239. See note 10 supra. Whether supposedly nonbinding policy can support an action at law will be discussed at notes 271-368 & accompanying text infra. If the Department is correct, the question arises whether disclosure changes that status from precatory to mandatory. See notes 54 and 58 supra. 240. 5 U.S.C. 552(b)(7)(E) (1976). See note 201 supra. 241. S. REP. No. 813, supra note 193, at 9. 242. H.R. REP. No. 1497, supra note 194, at 11, reprinted in [1966] U.S. CODE CONG. & AD. NEWS 2418, 2428. 243. Id. 244. E.g., Weisberg v. United States Dep't of Justice, 489 F.2d 1195 (D.C. Cir. 1973). 245. Freedom of Information Act Amendments of 1974, Pub. L. No. 93-502, 2, 88 Stat. 1563 (amending 5 U.S.C. 552(b)(1), (7) (1970)). See H.R. REP. No. 876, 93d Cong., 2d Sess. 2, 10, 19 (1974), reprinted in [1974] U.S. CODE CONG. & AD. NEWS 6267, 6267, 6276, 6280-81. 246. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 147 (1975).
PROSECUTORIAL POLCY
1974 amendments, can be invoked only to protect materials developed in individual cases. Thus, the exemption cannot be applied to protect broad 2 47 policy advisement over a range of possible discretionary situations. It thus must be concluded that prosecutorial policy only rarely will be exempt from disclosure. 24 8 Whatever the arguments against disclosure are, or were, Congress and the courts have required disclosure of policies analogous to prosecution policy, such as those contained in audit manuals, except when the sole effect would be circumvention of a valid agency regulation. Many of the problems that attend the practice of disclosure of prosecutorial guidelines is squarely presented by the current case of Jordan v. United States Department of Justice .249 The plaintiff-attorney in this litigation seeks to obtain under the FOIA ten paragraphs to the Screening and Papering Manual and First Offender Treatment Guidelines of the U.S. Attorney for the District of Columbia.2 50 On the face of the Gov247. Nonetheless, the Department of Justice has recently undertaken to do just that. It has argued in Cox v. United States Dep't of Justice, No. 77-1392 (8th Cir., docketed May 6, 1978), that manuals and instructions are "records" within the definitions of exclusion in Exemption 7. Brief for Appellee at 10. The Department also raised this question recently in Jordan v. United States Dep't of Justice, Civ. No. 76-0276 (D.D.C. Jan. 14, 1977) (mandate stayed), appeal docketed, No. 77-1240 (D.C. Cir. Jan. 26, 1977). See notes 249-253 & accompanying text infra. A major distinction that the Department has failed to recognize is that in Cox the drug enforcement manual subject to the FOIA request is investigatory; while in Jordan the materials are prosecutorial. Even if the exemption were stretched to cover the manual in Cox, it does not necessarily follow that such an exemption would also cover the prosecutorial guidelines in Jordan. See also Caplan v. Bureau of Alcohol, Tobacco & Firearms, Civ. No. 77-4313 (S.D.N.Y. Jan. 13, 1978) (exercising equitable discretion to withhold some material contained in Bureau pamphlet on searches although no exemptions specifically applied). 248. Accordingly, the entire United States Attorneys' Manual is available to the public for inspection and copying as it is redeveloped, except when the "sole effect" test makes disclosure nonmandatorv. See notes 211-18 & accompanying text supra. The various divisiorn'manuals are also public, as well as most of the Screening and Papering Manuals for various U.S. Attorney's offices. 249. Civ. No. 76-0276 (D.D.C. Jan. 14, 1977) (mandate stayed), appeal docketed, No. 77-1240 (D.C. Cir. Jan. 26, 1977). 250. The government describes the material as follows: The ten paragraphs withheld from the Manual and the FOT Guidelines were not disclosed because their public disclosure would identify situations where, in order to give priority to more serious offenses, less serious criminal violations may go unprosecuted. With respect to the Manual, the ten withheld paragraphs provide advice to Assistant United States Attorneys in the exercise of prosecutorial discretion in the following areas: (1) situations in which non-prosecution is warranted for certain sex-related offenses ...; (2) situations in which selective prosecution is warranted for certain narcotics and larceny offenses depending upon certain quantitative considerations, i.e., the amount of narcotics possessed or value of property stolen . . . ; (3) guidelines for the selection of appropriate charges from among available alternative charges depending upon certain factual considerations, e.g., nature and extent of injuries and type of weapon involved; (4) recommended criteria in considering eligibility for first offender treatment . . . ; and (5) situations warranting certain internal prosecutorial action, e.g., the initiation of a
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ernment's assertions it would appear that the material should be disclosed because none of it would permit a defendant to tailor his violative conduct to avoid detection. Once crime is detected and investigated, however, a defense counsel would be able to confront the Assistant U.S. Attorney with the contention that the prosecutor has not conformed to office guidelines or policy. Because of this type of disclosure, therefore, Assistant U.S. Attorneys would find it necessary to be conversant in office policies, and, for cases necessitating borderline policy decisions, to produce fairly complete records of how cases were handled. Of course, properly handled, a defendant who attempted to use office policy to his advantage could not relieve himself of the criminal sanction; he would succeed only in irritating his adversary-something that most defendants
25 1 can little afford to do.
The Government in its most recent submission to the court in Jordan has contended that there will be far more egregious consequences of disclosure. In its words, In a larger sense, the issue in this case is whether or not federal prosecutors can use written guidelines in establishing standards for declining prosecutions on de minimus grounds. For if such guidelines must be made available to the public, they will not be promulgated at all; the Government either will have no guidelines or will have only oral guidelines. We submit that either result is not in the best interest of the administration of justice, and we think it is manifestly clear that Congress did not intend the Freedom of Information Act to have such 2 52
consequences.
Such a course of action is, indeed, unwise. Given the general practice of the Department of Justice of developing some structure for prosecutorial discretion in the United States Attorneys' Manual, an assertion of such authority must be taken with caution.25 3
five-day hold under 23 D.C. Code 1322(e) or reduction of charges brought against defendants who are police informants. The FOT Guidelines consist of a six-page document which articulates eligibility criteria and tactical considerations for admission into the FOT program for persons charged with certain offenses. Brief for Appellant at 4-5. 251. Contentions that such disclosure would create additional litigation are unfounded, unless the policy in question is unconstitutional. See notes 271-368 & accompanying text infra. 252. Supplemental Memorandum for Appellant at 2. 253. Two points should be made parenthetically. First, there is a real question as to the impact of this case on the United States Attorneys' Manual. Admittedly, the U.S. Attorney for the District of Columbia had some unpleasant experiences with disclosures of his own policy, and responded by rescinding policy, as when the "five-joint" rule was leaked to the press. Brief for Appellant at 9-10, Jordan v. United States Dep't of Justice, No. 77-1240 (D.C. Cir., filed Jan. 26, 1977). See Wash. Post, Nov. 30, 1974, at A-i, col. 3; id., Nov. 16, 1974, at A-1, col. 6. The five-joint rule was only
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2. Should policy be disclosed? Before the 1974 amendments to the FOIA became law, Professor Abrams candidly reviewed a series of objections that could be made to the practice of publishing articulated prosecutorial policy. 2 54 Among these objections were that publication of lesser, nonstatutory standards of conduct that are subject to penalty would improperly modify the deterrent effect of criminal law; that publication would have a "freezing effect" on policy development; that it would foment collateral litigation; and that prosecutors therefore would be even more reluctant to articulate policy than they are now. 2 55 Such objections still could be raised today as arguments in favor of repealing or narrowly construing the disclosure policies underlying the amendments. 2 56 Abrams concluded, however, even before the FOIA amendments, that the objections did not overcome the wisdom of a policy of publication. His conclusion is still valid. The deterrence objection 257 as applied to the Department of Justice relies on one difference between state and federal criminal justice systems. It is plausible that federal prosecutors deal with more sophisticated types of criminals, who often may have continuously available counsel. 2 58 In such cases the publication of prosecution policies 259 may well
local, however, and its rescission does not establish precedent for rescission of generally applicable policies. Second, this statement can be viewed as little more than a thinly veiled threat to the court's jurisdiction. Less radical actions in response to judicially required disclosure can easily be conceived. Such a bald assertion of authority in this case reflects a lack of understanding of the actual implications in the law for such disclosures. See notes 271-368 & accompanying text infra. 254. Abrams, supra note 2, at 25-34. At the time of Abrams' work, the communication of policy depended on the Department's voluntary introduction of particular policies in court, in press releases, or at congressional hearings. See id., at 25. Hence, the burden of persuasion remained on the proponents of disclosure. 255. Abrams also restated the objection that publication will impugn the integrity of prosecutors, undermining the common perception that they fully enforce the criminal law. Id. at 32. In rebuttal, he questioned the assumption that this perception is common, and argued that in any case, it is more harmful for the public to perceive that there exists hypocritical or inconsistent enforcement than to see less than complete, though consistent, enforcement. Id. The image of full enforcement does provide some political insulation for the prosecutor, but whether the political pressures exerted by individuals differ from the pressures of potential litigation is subject to question. The pressure, if any exists, will come from special interest groups such as publishers of arguably pornographic materials, anti-gun control lobbies, organized crime, and law professors. The question arises whether this would be a significantly different problem from that faced by regulatory agencies, as well as whether it already exists. 256. See notes 188-89 supra for a discussion of how the 1974 FOIA amendments influenced disclosure of prosecutorial policy and guidelines. 257. See notes 169-71 & accompanying text supra, for a discussion of the practical impact that publication of policy would have on the deterrence goal of criminal sanctions. 258. The Department of Justice has said: The Attorney General is directing emphasis toward combating organized crime, white collar crime, public official corruption, fraud in government programs, narcotics traffick-
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have a direct, quantifiable result in defeating enforcement. Assume, for example, that the Department of Justice as a matter of policy consistently were to decline prosecution of tax fraud cases in which gross income for three years fluctuated less than twenty-five percent, on the rationale that such cases present relatively little jury appeal. Publication of this nonprosecution policy, the argument goes, would place a premium on a tax evader's ability to avoid erratic income figures.2 60 The counterargument, which is equally viable historically, 2 6 ' is that citizens have a right to know the standards by which their conduct will be measured. Abrams resolved the debate by advocating that only some materials be exempted: Where the reasons for adopting the policy are grounded in substantive concerns relating to the appropriateness of full, partial, or no enforcement of the law in question, the policy should be published. Where, however, the reasons for the policy involve matters of convenience such as the allocation of resources, or other administrative considerations, the policy need not be published. The premise is that while some policies amount to a substantive modification of the criminal law that the public has a right to know about, the prosecutor should not detract from the deterrent effect of a262 criminal statute merely for purposes of administrative convenience. In ruling on disclosure cases, especially when the government claims that investigatory materials are protected by Exemption 2, courts have not
ing, and other significant area. . . . [Ilt seems appropriate that scarce Federal resources should be devoted to those complex cases which often have multi-district ramifications and other specialized needs that can be best met by Federal attention. Letter to Victor L. Lowe, Director, Gen'l Gov't Div., GAO from Kevin D. Rooney, Ass't Attorney General for Administration, reprinted in GAO REPORT, supra note 180, app. II. 259. Abrams separates all prosecution policies into three classes: nonprosecution policies, which advocate refusal to prosecute particular statutory offenses; selective prosecution policies, which enumerate certain preconditions for enforcement of particular criminal statutes; and complete enforcement policies, which mandate enforcement whenever factual circumstances fall within the coverage of a criminal statute. Abrams, supra note 2, at 13-25. The deterrence argument applies only to the first two classes. 260. As Abrams argues, substantial deterrence value may still inhere in policies that rely upon a prosecutor's finding of no aggravating circumstances. Abrams, supra note 2, at 31. Does the Redmond guideline, which plays down prosecution of noncommercial, consensual mailing of obscene material, place a premium on a commercial enterprise's ability to separate inventory and collection processes, and to "personalize" mailing wrappers? See id. Similarly, if the Department had a policy dictating that, for the sake of efficiently allocating resources, possible political corruption cases involving alleged graft of less than $10,000 would not be investigated or prosecuted, would it follow that sharp corrupt politicians, on the advice of counsel, could minimize the chances of investigation by diversifying their activities? 261. Abrams, supra note 2, at 26-27. 262. Id. at 30 (emphasis supplied).
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applied even the compromise offered by Abrams' substantive/ administrative dichotomy. 2 3 If the key consideration of whether policy should be published is to be the deterrent value of the criminal law, the judicial expansion of Exemption 2 of the FOIA appears to supply the minimum protection necessary. As has been noted, courts have construed Exemption 2 of the FOIA to include guidelines and directions to staff only when the sole purpose of disclosure would be to permit a regulated party to violate the agency's regulations and also avoid detection. Exemption 2 generally has been applied to auditing manuals in defense contracting, oil refinery, and taxation.2 64 Prosecutorial policies, however, permit only a preliminary view of a criminal prosecutor's priorities; they do not free a person of liability 26 5 or insure that he can tailor conduct in any way to avoid detection. While prosecutorial guidelines do provide a means of tailoring conduct to present a case of low prosecutorial priority, nothing forbids a prosecutor who becomes aware of such tailoring to respond with vigorous prosecution.2 6 6 Thus the "sole effect of avoiding detection" test espoused in Hawkes offers the necessary protection of the deterrence goal. Apparently the Department of Justice itself remains unimpressed by the deterrence argument, for it has already disclosed a 26 7 number of selective enforcement policies. Abrams rebuts the objection that publication would freeze policy change and development by advocating that new policy be applied prospectively only. 268 In addition, the methods for promulgating new policy are not so set that they would discourage the process. An agency must follow APA notice and comment procedures, which easily can bog down the policymaking process, when promulgating legislative rules, but Con263. Abrams* dichotomy presents two problems. It shifts the emphasis to merely justifying a predetermined decision on publication rather than trying to determine whether to publish by objectively examining the effects on policy of publication. It also would be a difficult test to administer. Abrams suggests that when both substantive and administrative elements are present, the dominant element should determine the publication question. Id. at 31. 264. Conceivably, this exemption could be applied to other complex investigations like bank examinations and security exchanges. 265. It has often been suggested that the theory of desuetude should be applied to the federal law. In light of the current attempts to reform the entire criminal code, see note 168 supra, it would appear unwise to consider such an application at this time. No "sunset" provision, however, has been incorporated in the substantive federal criminal laws. See generally, Rodgers & Rodgers, Desuetude as a Defense, 52 IOWA L. REV. 1 (1966). But see Bonfield, The Abrogation of Penal Statutes b' Nonenforcement, 49 IOWA L. REV. 389 (1964) (enforcing government policy tends to check administrative abuses). 266, See, e.g., notes 15-17 & accompanying text supra (Redmond guideline). 267. Many of these are printed in the United States Attorneys' Manual, which is subject to disclosure under the FOIA. See note 10 supra. 268. Abrams, supra note 2, at 29.
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gress has not delegated such rulemaking power to the Department of Justice. 26 9 To make interpretative rules, the Department would find it easy to provide merely notice of change, which is all that would be re2 70 quired. D. Litigability: The Sheep in Wolf's Clothing The final two objections to publishing policy, as Abrams paraphrased them, 27 1 are closely related and present potentially the most powerful argument against publication: that public knowledge of prosecutorial policy would tend to increase litigation, and that because of this, the Department of Justice would stop developing policy altogether.2 72 Publication thereby would become self-defeating. The publication and litigability questions seem inextricably linked. Tied together, however, they create a circular argument: that policy must be disclosed because it is "secret law," and that once disclosed, it becomes law that binds prosecutors. The conclusion that it is binding is not necessarily correct because its premise is not correct. Policy must be disclosed under FOIA because it falls within the generally discoverable category of staff guidelines on prosecutorial policy, not because it is "secret law." 273 As soon as the presumption that the class of disclosable material is "law" is removed, the binding effect of published policy is again questionable. The only way to discuss the litigability question effectively, then, is to cut the Gordian knot, to examine separately from the publication problem the question of whether defendants can enforce prosecutorial policy against prosecutors in court. The discussion here of the likelihood that courts will engage in judicial review of prosecutorial policy is very different from the earlier discussion of judicial review of administrative action. 2 7 4 In this discussion, the issue is not whether courts can obtain jurisdiction or will review policy as agency action under either APA or common law principles, but whether they will find prosecutors' actions justiciable in a traditional criminal law context. The administrative law model did not work because judicial re269. See notes 70-73 & accompanying text supra. 270. Id. There may be occasions when the Department extrudes new policy from its involvement in individual cases. Such occasions, analogous to the more formal rulemaking-on-the-record often conducted by adjudicatory agencies, see SEC v. Chenery Corp., 318 U.S. 80 (1943), also would permit policy change without imposing onerous public participation procedures. 271. See note 255 & accompanying text supra. 272. Consider the statement made by the Department of Justice in its brief to the court of appeals in Jordan v. United States Department of Justice. See note 252 & accompanying text supra. 273. See notes 210-25 & accompanying text supra. 274. See notes 111-55 & accompanying text supra.
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view was unlikely. The need to develop policy is still compelling, however, because, in the criminal law context, courts are demonstrating an increasing willingness to review the Department's failure to adhere to a consistent policy unless the Department hastens to keep its own house in order. 1. Confession of error. Prosecutorial policy has influenced court proceedings most often when the Department of Justice itself has invoked policy to obtain dismissal of a case being prosecuted. On occasion the Solicitor General has been placed in the uncomfortable position of being informed that the Department brought a case, now on the defendant's petition for certiorari, in violation of its own policy. 275 The government's usual response to this situation has been to file a motion to grant the writ, to vacate the judgment below, and to remand the case for dismissal. 2 76 No such motion, or confession of error, has been denied; 277 but a continuous line of dissents demonstrates that this area of law is subject to change. In Redmond v. United States,278 the Department confessed error in prosecuting a case that had not met the "aggravating circumstances" exception to its policy against prosecution for noncommercial consensual mailings of obscene material. 2 7 9 The Court granted the motion to remand with orders to dismiss, although three dissenters would have reversed the conviction "not because it violates the policy of the Justice Department, but because it violates the Constitution." 280 Similarly, in Watts v. United States, 28 1 the Court accepted a confession of error in the prosecution of a defendant who had been prosecuted previously on state
275. E.g., Watts v. United States, 422 U.S. 1032 (1975); Ackerson v. United States, 419 U.S. 1099 (1975); Hayles v. United States, 419 U.S. 892 (1974); Redmond v. United States, 384 U.S. 264 (1966); Petite v. United States, 361 U.S. 529 (1960). See also United States v. Houltin, 525 F.2d 943 (5th Cir. 1976), vacated & remanded sub nom. Croucher v. United States, 429 U.S. 1034 (1977) (Petite policy applied to one count of indictment but not other). See generally Note, Confession of Error by the Solicitor General, 74 MICH. L. REV. 1067 (1976) [hereinafter cited as Confession of Error]. 276. E.g., Memorandum for the United States, Redmond v. United States, 384 U.S. 264 (1966) (Solicitor General, now Associate Justice, Marshall). 277. But see the discussion of the complicated proceedings in Rinaldi v. United States, notes 297-309 & accompanying text infra. 278. 384 U.S. 264 (1966). 279. See U.S. ATT'Y MAN. 9-75.630 (Jan. 17, 1977); notes 16-17 accompanying text supra. 280. 384 U.S. at 265 (Black, Douglas, Stewart, JJ., dissenting). See also United States v. Orito, 413 U.S. 139, 147 (1973) (Brennan, J., dissenting, joined by Stewart & Marshall, JJ.). 281. 422 U.S. 1032 (1975).
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weapons charges in violation of the Petite policy. 2 s2 Again, remand was made only over a stinging dissent: The only purpose served by the Court's action is to aid the Government in emphasizing to its staff lawyers the need for a consistent internal administrative policy. But with all deference I suggest that is not a judicial function and surely not the function of this Court. ... the Government attorneys who initiated this prosecution did If so without consulting their superiors, that is an internal matter within the Department of Justice to be dealt with directly by that Department, but it should not bear on a judgment lawfully obtained. Corrective action more appropriately lies through prospective enforcement of de2 83 partmental policies. Once error is confessed, whether the Supreme Court should grant a petition for certiorari, and whether the grant or denial of the petition itself represents a review of prosecutorial discretion present difficult questions. Chief Justice Burger apparently believes that the Court should not "automatically conform its judgments to results allegedly dictated by a policy, however wise, that the judicial branch had no part in formulating." ' 28 4 Although he continued to espouse the nonreviewability of prosecutorial discretion, which he argued as a circuit judge in Newman v. United States ,285 he seemed to retract somewhat his indication in Newman that when substantial court and prosecutorial resources had been devoted to obtaining a valid judgment, the Court should not rubber-stamp departmental policy without at least examining its application to the par28 6 ticular case. Chief Justice Warren had taken a more cautious approach. He believed the Court should neither deny all motions peremptorily, nor automatically grant them by invoking the policy of avoiding decisions on constitutional issues. Warren thought that confession of error motions should be denied and the cases disposed of on the merits when it was clear both that the judgment was invalid and that the motion to vacate and remand was made to avoid adjudication. 28 7 Some argue the opposite of Burger's
282. Id. at 1032. See notes 12-14 & accompanying text supra. 283. 422 U.S. at 1035-36 (Burger, C.J., dissenting, joined by Rehnquist & White, JJ.) (citations omitted). 284. Watts v. United States, 422 U.S. 1032, 1036 (1975) (Burger, C.J., joined by Rehnquist & White, JJ., dissenting from grant of certiorari and vacation of judgment). 285. 382 F.2d 479, 481 (D.C. Cir. 1967). 286. 422 U.S. at 1036-37. 287. Petite v. United States, 361 U.S. 529, 532 (1960). In Watts, the validity of the judgment of conviction had been sustained by the court of appeals, and was, Chief Justice Burger thought, quite clear. 422 U.S. at 1035.
viewpoint-that the Court should always grant certiorari and vacate in such cases. 28 8 The majority of the Court has consistently done just
that.
28 9
It is clear that a majority of the Supreme Court recognizes an obligation to grant certiorari in all cases involving confessions of error, 2 90 but only a constitutional question requiring reversal in the minds of a majority of the Court would encourage it to do more than summarily vacate and remand a case. 29 1 An increasingly strong dissenting view, however, seems to be calling upon the Department of Justice to keep its own house in order 292 lest the Court be compelled to review the applicability of prosecutorial policies to particular cases, even though such judicial activism would narrow the scope of prosecutorial discretion.2 9 3 If this more activist judicial review gains majority support in any cases, it may do so first where there are signs of the government's deception or bad faith. Orlando v. United States ,294 for example, involved the second prosecution of a defendant for different federal crimes arising from the same set of facts. Orlando was acquitted of a bank robbery charge in one trial but convicted of being an accessory after the fact in a second trial. 295 The Ninth Circuit upheld his conviction in the second trial. After being denied a rehearing, Orlando indicated a desire to petition to the Supreme Court for certiorari. Before he could do so, however, the government claimed that the second prosecution was a multiple prosecution in violation of its policy and moved for vacation and remand for
288. E.g., Confessions of Error, supra note 275, at 1077-78. 289. E.g., Watts v. United States, 422 U.S. 1032 (1975); Redmond v. United States, 384 U.S. 264 (1966). This implies only that a majority of the Court has felt that the Solicitor General's proposed order was just. 290. E.g., Young v. United States, 315 U.S. 257 (1942). 291. The issue of a constitutional question has been raised thus far only in dissents. If the Court should feel, however, that a prosecutorial policy violated a constitutional provision, judicial review no doubt would be employed fully. See, e.g., United States v. Falk, 479 F.2d 616 (7th Cir. 1973), rev'g 472 F.2d 1101 (7th Cir. 1972). 292. As Chief Justice Burger phrased it, "Lilt requires more than the desire of the Department of Justice to keep its house in order to persuade me that the Court should have a hand in nullifying such a substantial commitment of federal prosecutorial and judicial resources." Watts v. United States, 422 U.S. 1032 (1975) (dissenting from vacation of judgment). 293. Similar dissenting voices are evident in the lower courts. In Cox v. United States, for example, a panel of the Ninth Circuit granted the government's motion to vacate and remand for dismissal because of a violation of the Redmond policy. In so doing, the court cited Redmond only as a "precedent which we are obliged to respect." 370 F.2d 563, 564 (9th Cir. 1967). 294. 377 F.2d 667 (9th Cir.), vacated and remanded, 387 F.2d 348 (9th Cir. 1967). 295. At the first trial, Orlando had pleaded innocent to a bank robbery charge while his codefendants had pleaded guilty to bank larceny. After Orlando's acquittal, his co-defendants were permitted to withdraw their guilty pleas and stand trial. At the second trial, Orlando was charged only as an accessory after the fact. Id.
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dismissal. 2 9 6 The motion was granted over Judge Pope's indignant dis2 97 sent. Rinaldi v. United States 298 demonstrates the first case in which the usually dissenting view prevailed in the lower courts, although the Supreme Court reversed per curiam and allowed the confession of error to justify a vacation of the judgment. With full awareness that a state conviction had been obtained, the Department vigorously pursued a federal conviction in violation of Petite policy, justifying its actions to the trial judge by alleging concern that the state convictions would be overturned on pending appeals. 299 The state convictions were not reversed,3 0 0 and only after the second trial on federal charges, and upon defendant's prodding, did the government move to confess error and have the federal indictment dismissed. The court of appeals acquiesced in vacating the judgment, but on remand the district court refused to dismiss. 3 0 ' It cited two reasons: because the motion was made after trial, the prosecutor's discretion was not absolute; and the government's knowing violation of 30 2 its own policy raised questions as to its good faith. The district court's action transformed the case into a question of whether the court had abused its discretion. The court of appeals affirmed, saying "the public interest in avoiding manipulation of the judicial system demands that the Department of Justice take responsibility for administering its own internal rules." 303 On rehearing en banc, a nar-
296. Orlando v. United States, 387 F.2d 348 (9th Cir. 1967). The belated and hasty motion by the government seems to indicate that the government was not sure of the double jeopardy status of the case and wanted to avoid a Supreme Court decision. 297. Id. at 349. "I think it is no part of our function to take orders from the Department of Justice in respect to the latter's policies." Id. (Pope, J., dissenting). 298. 98 S. Ct. 81 (1977) (per curiam), rev'g In re Washington, 544 F.2d 203 (5th Cir. 1976) (en bane). Defendants Washington, Rinaldi, and others had been convicted in state court of conspiracy to rob a hotel and subsequently were tried twice on federal charges. The first federal trial resulted in a mistrial and the second ended with a conviction. 299. 98 S. Ct. at 82. 300. Scaldeferri v. State, 294 So.2d 407 (Fla. App.), cert. denied sub nom. Pompeo v. State. 303 So.2d 21 (Fla.), cert. denied sub nom. Washington v. Florida, 419 U.S. 993 (1974). 301. Motions to dismiss are always within the court's discretion. Rule 48(a) provides the following: "The Attorney General or the United States Attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant." FED. R. CRiM. PRO. 48(a). 302. United States v. Washington, 390 F. Supp. 842, 843-44 (S.D. Fla. 1975). 303. In re Washington, 531 F.2d 1297, 1300 (5th Cir.), aff'd en banc, 544 F.2d 203 (1976). The court thus evaded a judicial decision on the validity of the prosecutorial policy. In making our decision to affirm, we need not decide whether the Department of Justice's uneven application of its own policy violates equal protection standards ....
row majority affirmed, finding "appalling the Government's cavalier attitude toward its wasteful expenditure of judicial time and resources and toward the uneven application of its own policy. That the Government's conduct here constitutes bad faith is clear to us." 304 In granting certiorari in Rinaldi, the Supreme Court gave its first and only full opinion on the subject of confession of error. 305 The issue was still framed in terms of the district court's abuse of discretion, and the Court held that the lower courts should have granted the motion to dismiss. Reasoning that the prosecutorial Petite policy was developed in response to the Court's own dictates with respect to fairness to the defendant and cooperation between state and federal criminal justice systems, the Court held that defendants "should receive the benefits of the policy whenever its application is urged by the Government. ' 30 6 The Court dismissed the bad faith issue by saying that even if the prosecution were instituted in bad faith, the "salient issue" is "whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety. ' 307 In Rinaldi, they were not. 30 8 Again, three justices dissented, two of them because they thought the Court's action amounted to approval of a new policy beyond Petite, and because the Court seemed to provide no explanation of why the district court's finding that dismissal would contravene the public interest was an abuse of 30 9 discretion. After Rinaldi, courts still will be reluctant to independently review policy when it is violated in confession of error cases and will tend to permit
Itis doubtful that an internal policy of the Department of Justice grants to an accused a vested right to be free from an otherwise valid prosecution. Id. at 1302. 304. 544 F.2d at 207-08. The dissenting judges raised the question that is perhaps the touchiest matter in any confession of error case. To preclude the government from confessing error and dismissing the indictment punishes the defendant further for the prosecutor's misfeasance and gives "to the prosecution that which it improperly sought as a means of disciplining it for having improperly sought it." Id. at 210. In reality, of course, as long as there is no constitutional violation of the double jeopardy clause, and conviction is supported by the evidence, the defendant has been punished no further than his actions legally justify. See note 287 supra (Chief Justice Burger's remarks in Watts). 305. 98 S. Ct. 81 (1977). 306. Id. at 86. 307. Id. at 85. 308. Id. at 86 & n.16. Compare the facts presented in Orlando, in which the government confessed error only upon defendant's expressing his desire to petition for certiorari. See notes 294-97 & accompanying text supra. If defendant could show that the confession of error was done only to avoid litigation of some difficult issue regarding prosecutorial policy or constitutional rights, it may fall within the Rinaldi test of impropriety. joined by White, J.,dissenting) (Burger, C.J., dissenting 309. 98 S. Ct. at 86 (Rehnquist, J., without opinion).
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dismissal when it is favorable to the defendant. Rinaldi and Orlando demonstrate the egregious burdens of time and expense placed on a defendant who litigates his conviction, but, according to the majority opinion, imposition of a sentence presumably would be worse. Underlying all of these cases is an increasingly urgent cry that the Department of Justice must enforce its own policy if it expects courts to accede to its requests to dismiss cases. It may be that the courts have been willing to go along with the Department in confession of error cases to date only because defendants' rights are more crucial than is consistency of prosecutors' practice. If defendants were to present similar policy objections in other classes of cases in which judicial acquiescence to the Department's policy would further disadvantage the defendant, the urgency of reviewing policy violations might override the traditional abstention from interference in prosecutorial discretion. 2. Investigatory policy and constitutional guarantees: the IRS experience with delegated authority To emphasize the importance to the defendant in Rinaldi of belatedly following the Petite policy, the Supreme Court relied on the nexus between the administrative Petite policy and values that the Court had cherished as arising from the constitutional guarantee against double jeopardy. 31 0 Similar nexuses with constitutional guarantees occur in other internally developed administrative guidelines. This relatedness often causes a spillover in judicial opinions from the premise that constitutional provisons and rules made under congressional delegations of power are litigable to the proposition that internal personnel directives that reflect similar policies are equally litigable. 3 1 1 The IRS, as an agency possessing highly refined delegated rulemaking powers, offers a good example. To determine civil tax liabilities, the IRS has broad powers, exercised by its revenue agents, to require taxpayers to produce records and to
310. Rinaldi v. United States, 98 S. Ct. 81 (1977) (per curiam). See note 306 & accompanying text supra. 311. The varying amounts of independent rulemaking authority and administrative responsibility found within the respective investigatory agencies may present analytical problems. At one end of the spectrum, the Federal Bureau of Investigation has no rulemaking authority or independent administrative responsibility, but is an agency within the Justice Department. At the other end of the spectrum, the Internal Revenue Service has broad and specifically articulated rulemaking authority, I.R.C. 7805, has authority to make criminal investigations, which is the capstone to a complex and independent administrative scheme, I.R.C. 7608(b) and is an agency within the Treasury Department. I.R.C. 7602.
testify.3 12 At the first indication of criminal fraud or evasion, revenue 3 31 agents refer cases to IRS special agents for criminal investigation. Upon referral, the power to compel production of documents and testimony is vastly reduced.3 14 It therefore is crucial to defendants' rights that referrals occur at appropriate times. The IRS has developed directives that regulate this delicate referral stage. Upon referral, special agents must give Miranda-type warnings when first interviewing potential criminal defendants. 3 15 Whether these directives are judicially enforceable has been the subject of much debate.3 16 The rights protected emanate from the fifth amendment, but it is unclear whether the administrative guidelines are mandated by constitutional guarantees, 3 1 7 and if they do, whether they are enforceable to that extent. The majority of lower courts have held that if the IRS Mirandatype warning is not read to defendants, any resulting evidence must be 318 suppressed. In United States v. Leahey the court held that due process required the IRS to adhere to its own Miranda directive. 3 19 It relied on the need for uniform conduct by all agents and on the fact that the IRS developed its
312. I.R.C. 7602. 313. The reference procedure is important to both Justice and the Treasury. The declination rate for IRS referrals for tax fraud is approximately 12%. Rabin, supra note 2, at 1091. 314. I.R.C. 7602. The Code provides these powers for four limited purposes, none of which is criminal investigation. Id. 315. IRS News Release IR-897, [1967] 7 STAND. FED. TAX REP. (CCH) 6832, as amended by IRS News Release IR-949, [1968] 7 STAND. FED. TAX REP. (CCH) 6946. See United States v. Tweel, 550 F.2d 297, 299 n.8 (5th Cir. 1977) (quoting pertinent provisions). 316. In United States v. Lockyer, for example, the court characterized the directive to transfer a case to a special agent on indication of criminal fraud or evasion as follows: "The entire design and thrust of the instant directive is that of internal administration .... Therefore, we must hold that the directive was not and is not available to the taxpayer here as a definition of his rights." 448 F.2d 417, 421 (10th Cir. 1971). But see cases cited note 318 infra. 317. See Beckwith v. United States, 425 U.S. 341 (1976). The Court in Beckwith held that actual Miranda warnings are not required when a special agent interviews a potential defendant in the non-custodial atmosphere of his home because such an interrogation is not coercive. The special agents had read Beckwith the Miranda-type warning required by IRS regulations, but the majority of the Court never reached the question of its constitutional adequacy. Justice Marshall concurred, saying that the situation required a warning and that the words read satisfied Miranda standards. Id. at 348. Justice Brennan dissented. Id. at 649. 318. United States v. Jobin, 535 F.2d 154 (1st Cir. 1976); United States v. Sourapas, 515 F.2d 295 (9th Cir. 1975); United States v. Robson, 477 F.2d 13 (9th Cir. 1973); United States v. Leahey, 434 F.2d 7 (Ist Cir. 1970); United States v. Heffner, 420 F.2d 809 (4th Cir. 1969); United States v. Ersbo, 394 F. Supp. 1074 (D. Minn. 1975); United States v. Potter, 385 F. Supp. 681 (D. Nev. 1974); United States v. Fukushima, 373 F. Supp. 212 (D. Haw. 1974). 319. 434 F.2d 7, 10 (1st Cir. 1970). The First Circuit subsequently reaffirmed that its decision in Leahey was constitutionally compelled. United States v. Jobin, 535 F.2d 154, 157 (lst Cir. 1976).
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policy publicly and in an effort to protect constitutional rights. 32 0 Other courts have reached the same result, but clearly have relied not on due process grounds, but merely on the need for the IRS to follow its own 32 1
practice consistently.
The validity of enforcing internal personnel regulations on nonconstitutional grounds becomes more critical when no constitutional right exists in the background which can "spill over" to strengthen the theory of enforcement. For example, the Attorney General has directed all agencies to seek his approval before wiring their agents for monitoring conversations. 322 In response, the IRS has included in the Internal Revenue Manual a procedure for seeking such approval. 32 3 It is well established, however, that to monitor a telephone conversation with the consent of one of the parties does not violate the Constitution or any federal statute. 324 Whether the internal personnel directive of clearly nonconstitutional dimensions creates a judicially enforceable right in the defendant
currently is hotly contested.
United States v. Caceres 325 involved an audio recording, made by IRS agents, of a taxpayer allegedly bribing an agent to accept a settlement of his tax dispute. Because the agents had not sought approval to monitor the conversation, as required by IRS regulations, the court suppressed the evidence, reading Leahey 326 and its own precedent 32 7 as being applica320. Id. at 10-11. In connection with the general topic of prosecutorial discretion, it is interesting to note that the court felt compelled as a matter of due process to enforce agency policy because "[t]he IRS has no great incentive to scrutinize carefully the conduct of interviews by its Agents, if the conduct does not affect the result of the prosecution." Id. at 10. The First Circuit also has held that fulfillment of the substance and spirit of the personnel regulation, without adherence to its specific wording, would satisfy due process requirements. United States v. Morse, 491 F.2d 149 (1st Cir. 1977); United States v. Bembridge, 458 F.2d 1262 (1st Cir. 1972). 321. E.g., United States v. Sourapas, 515 F.2d 295 (9th Cir. 1975); United States v. Heffner, 420 F.2d 809 (4th Cir. 1969). In Sourapas, however, although the court suppressed the evidence because of the special agent's failure to follow agency policy, it thought that in other cases, when corporations are the victims of policy violations, internal disciplinary procedures instead of suppression of evidence would protect them sufficiently. 515 F.2d at 300. This observation would remain valid even if the court had relied on the Constitution because corporations have no rights against selfincrimination under the fifth amendment. 322. Memorandum to the Heads of Executive Departments and Agencies from the Attorney General (Oct. 16, 1972). as amended by Att'y Gen. Order No. 566-72 (Apr. 25, 1974), reprinted in U.S. Ar'y MAN. 9-7.013 (Supp. July 12, 1977). 323. INTERNAL REVENUE MANUAL T 652.22, quoted in part in United States v. Caceres. 545 F.2d 1182, 1184 n.1 (9th Cir. 1976). 324. United States v. White, 404 U.S. 745 (1971); United States v. Hoffa, 385 U.S. 293 (1968); Lopez v. United States, 373 U.S. 427 (1963); 18 U.S.C. 2511(2)(c)(1976) (not unlawful for person under color of law to intercept wire communication if person is party to the communication). 325. 545 F.2d 1182 (9th Cir. 1976) (as amended on denial of rehearing and rehearing en bane, Jan. 20, 1977), petition for cert. filed, 45 U.S.L.W. 3653 (U.S. Mar. 21, 1977) (No. 76-1309). 326. See notes 319-20 & accompanying text supra.
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ble to nonconstitutional violations. In denying rehearing, the court tempered its holding with a modification: Our decision today does not mean that in every instance a deviation from general guidelines governing the Executive exercises of discretion will result in the automatic exclusion of evidence. As noted in United
States v. Leahey . . . : "We do not say that agencies always violate
due process when they fail to adhere to their procedures." Here, however, the non-compliance by the IRS . . . harmed more than just the
"efficiency of the I.R.S. operations."
328
How the failure to procure prior approval for such a recording violated the defendant's due process rights is indeed baffling. As the government indicated in its petition for certiorari, the actual issue is "[w]hether it is proper to suppress otherwise admissible and probative evidence in a criminal case because of the government's failure fully to comply with an internal regulation that is not required by the Constitution or by statute." 329 Congress has delegated broad legislative rulemaking powers, but they do not extend to the regulation of internal personnel conduct. Thus, two propositions emerge: that when an agency possesses delegated rulemaking authority, courts might construe personnel directives within the breadth of that authority in substantive litigation; and that where constitutional considerations underlie a particular policy, it is possible for the courts to review wholly administrative personnel directives within the ambit of due process. The question is whether the courts will enforce policies when neither factor is present. 3. Judicial enforcement of internal prosecutorial policy in defendants' favor The Department's practice of confessing error for policy violations, and courts' inclination to review policy violations when the policy is founded on constitutional principles or is developed by an agency with delegated authority, seem to pave a road for courts to fully review and enforce prosecutorial policy. A theory to support such enforcement is not easy to find, however. The administrative route of the APA has not developed into a sound basis for judicial review of prosecutorial policy. 330
327. The court regarded Sourapas as controlling. See note 321 supra. It also cited United States v. Heffner. 420 F.2d 809 (4th Cir. 1969). 328. 545 F.2d at 1187. 329. Petition for Certiorari at 2, United States v. Caceres, 45 U.S.L.W. 3653 (U.S. Mar. 21, 1977) (No. 76-1309). See 18 U.S.C. 3501 (1976) (standards for admissibility of confession). 330. See notes 96-155 & accompanying text supra.
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The attempt to use the statute directly in litigation has been extremely rare and unsuccessful. 33 1 Absent a statutory basis for enforcement, a common law argument for judicial enforcement might be the strict estoppel theory. Under this theory, a defendant would claim that he detrimentally had changed his position in reliance on a published policy statement and that for this reason the policy should be enforced. The problems of a strict estoppel theory, however, preclude its use as an effective enforcement tool for defense counsel. For example, proof of a change in reliance on the Redmond policy 3 32 would require the defendant to admit the essential elements of the crime. He would be forced to prove that he would not have mailed obscene materials to a consenting adult for a personal, noncommercial purpose but for his belief that the Department of Justice would adhere to its nonprosecution policy. His admission would be particularly dangerous with the Redmond policy, which is only a guideline. Unlike a directive, 33 3 it does not require a U.S. Attorney to act in a particular way; it merely gives such offenses very low priorities for enforcement. Reliance by a defendant on any mandatory directives not to secure certain types of indictments without approval 334 would be even more difficult to argue in support of an estoppel theory of judicial enforcement. The defendant would have to prove that the officer who must approve indictments had always declined to bring similar indictments in the past. Even if the defendant were able to sustain this burden and to win dismissal of the original indictment, he still would face reindictment after the Department complied with the contested policy. To obtain a dismissal with prejudice, which would preclude such a superseding indictment, the defendant would have to prove bad faith or harrassment by the government. 3 35 An alternative rationale for judicial enforcement of prosecutorial policy would adopt Abrams' substantive/administrative dichotomy. 3 36 According to this theory, a court could enforce policies that protect an individu-
331. E.g., United States v. DeVaughn, 414 F. Supp. 774 (D. Md. 1974) (Federal Register publication of IRS Handbook for Special Agents not required under Federal Register Act or FOIA). 332. See notes 16-17 & accompanying text supra. 333. See note 18 & accompanying text supra. 334. U.S. ATT'Y MAN. 9-2.132, .133; see notes 30-31 & accompanying text supra. 335. See Givelber, The Application of Equal ProtectionPrinciples to the Selective Enforcement of the Criminal Law, 1973 U. ILL. L.F. 88; Russo, Equal Protectionfrom the Law: The Substantive Requirements for a Showing of DiscriminatoryLaw Enforcement, 3 LoY. L.A.L. REv. 65 (1970). 336. See note 262 & accompanying text supra. Abrams originally suggested this dichotomy as a useful tool for distinguishing policies that should be made public from those that should be withheld. Abrams, supra note 2, at 30-31.
al's rights, but leave free from judicial review policies that are internal and administrative in nature and effect.3 37 The distinction is consistent with judicial conduct in reviewing some investigation policies of prosecutors. For example, the IRS practice of giving Miranda-type warnings is a substantive policy because it helps defendants protect their rights; accordingly, it has been enforced in the Leahey line of cases. 338 The guideline that requires revenue agents to refer cases to special agents when their investigation begins to focus on criminal activity may be considered totally internal. It would be termed an administrative policy, and in fact has been held to be judicially unenforceable, 339 although it does raise notice problems that border on constitutional rights under the Leahey line of cases. Caceres does not conform to the substantive/administrative test because the court suppressed evidence obtained when investigators violated a wholly internal policy. 3 40 This aberration can be explained by the spillover phenomenon, which has caused courts to extend suppression of evidence from situations involving constitutional rights to enforcement of 3 41 personnel regulations. In Croucher v. United States, 342 the defendant was convicted first in state court for possession of marijuana and later in federal court for both conspiracy to import and conspiracy to possess marijuana. In his petition for certiorari, the defendant invoked, inter alia, the government's violation of its own Petite policy 34 3 against dual prosecutions. The Solicitor General responded by stating that "conspiracy to import . . . involves a compelling federal interest that is distinct from any interest vindicated by petitioner's prior state convictions . " and that conspiracy to possess did not.3 44 Accordingly, the government asked the Court to affirm the
337. The distinction between substantive and administrative policies is discussed in Note, Violations by Agencies of Their Own Regulations, 87 HARV. L. REV. 629 (1974). The author of the Note recommends that courts not establish "absolute rules" for determining when violations of agency regulations should be judicially reviewed. Id. at 655. 338. See notes 316-21 & accompanying text supra. 339. See United States v. Lockyer, 448 F.2d 417 (10th Cir. 1971). The court reasoned that Miranda-type warnings would not be required until the results of an agent's investigation raised an inference of fraud. Id. at 422. 340. United States v. Caceres, 545 F.2d 1182 (9th Cir. 1976) (as amended on denial of rehearing and rehearing en bane, Jan. 20, 1977), petition for cert. filed, 45 U.S.L.W. 3653 (U.S. Mar. 21, 1977) (No. 76-1309). See notes 325-329 & accompanying text supra. The policy, which required approval for wiretapping, was only an internal control mechanism. 341. See notes 310-29 & accompanying text supra. 342. 429 U.S. 1034 (1977), vacating and remanding United States v. Houltin, 525 F.2d 943 (5th
Cir. 1976).
343. Petitioner's Brief for Certiorari at 18-19, Croucher v. United States, 429 U.S. 1034 (1977). 344. Memorandum for the United States at 3-5, Croucher v. United States, 429 U.S. 1034 (1977).
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conspiracy to import charge and to vacate and remand for dismissal the
conspiracy to possess charge, 345 which the Court did.1 46 Its action effec-
tively enforced the Petite policy, a substantive matter, except when the government showed a compelling federal interest, 347 which arose because of the different elements of crime in the two charges. The lower federal courts generally have held that substantive guidelines are not judicially enforceable if they rely solely on prosecutorial discretion and are not coupled with legislative enactment. 3 48 One court refused to enforce the Redmond policy against the Department, saying the policy "is wholly voluntary in nature and is not founded in caselaw
which would require this court to implement such a policy."
349
The
strength of the voluntariness rationale is limited at best, because all prosecutorial policies are legally voluntary. There is no legal compulsion to develop them. Instead, the key question should be whether the Redmond policy creates any rights. Logically and legally it does not. The policy does specify an example of nonprosecutable facts, but it does not change the substantive criminal law that makes such conduct illegal. Because the Department of Justice does not have authority to change law, defendants cannot assert rights in prosecutors' voluntary deviation from enforcing all legislative proscriptions. Whatever rationale underlies the development of a voluntary prosecutorial policy less restrictive than the statute, the policy is essentially extra-legal. Administrative decisions, such as those suggesting when to give defendants pretrial diversion, 3 50 raise due process questions, whether the
decisions are guided by articulated policy or are left completely to individual discretion. 35 1 Courts have applied separation of powers and judi352 cial efficiency doctrines to avoid these cases.
345. Id. at 5. 346. Croucher v. United States, 429 U.S. 1034 (1977). 347. See notes 12-14 & accompanying text supra for a complete discussion of the Petite policy. 348. E.g., United States v. Etheridge, 512 F.2d 1249 (2d Cir. 1975) (administrative interpretation of impersonation statute); United States v. Brown, 508 F.2d 427 (8th Cir. 1974) (concealing dangerous weapon); United States v. Holohan, 390 F. Supp. 310 (S.D.N.Y. 1975) (Selective Service delinquency); United States v. Grau, 341 F. Supp. 343 (E.D. Wis. 1972) (dual prosecution for same offense). 349. Spillman v. United States, 413 F.2d 527, 530 (9th Cir. 1969), cert. denied, 396 U.S. 930 (1969). The court distinguished confession of error cases, in which the government concedes the applicability of its own policy. Id. at 530. 350. See notes 40-42, 154 & accompanying text supra. 351. See, e.g., United States v. Smith, 354 A.2d 510 (D.C. 1976) (prosecutor free to deny "first offender treatment" to defendant). Cf. United States v. Goldstein, 342 F. Supp. 661 (E.D.N.Y. 1972) (IRS free to deny preindictment conferences to taxpayer under investigation). 352. E.g., Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967) (whether to consent to guilty plea from one defendant and not from co-defendant); United States v. Cox, 342 F.2d 167 (5th Cir.),
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Even in cases involving administrative rights, defendants might seek to challenge prosecutorial policy violations on the theory that an agency is bound to follow its own regulations. This doctrine has been applied in cases like United States ex rel. Accardi v. Shaughnessy 353 to preclude an administrator from exercising discretion after he has completely delegated his decisionmaking power to another agency. The Court also applied this doctrine in Service v. Dulles3 54 to prevent the dismissal of an employee contrary to regulations. The agency had adopted the regulations even though it was not required by statute to develop such stringent substantive and procedural standards, and could have dismissed the employee more easily. 355 An even more dramatic case in support of applying this doctrine to discretionary actions is Vitarelli v. Seaton.35 6 In Vitarelli, the administrator could have dismissed an employee summarily without cause but, perhaps inadvertently, chose instead to state as grounds that his dismissal was in the national interest. The Court held the discharge to be illegal because the agency failed to adhere to the procedural safeguards accompanying the regulations governing dismissal for national security reasons. These cases could not be extended easily to enforce directives governing prosecutorial discretion, even though directives like those requiring a U.S. Attorney to obtain approval for indictment do appear to be procedural. Such directives are really personnel controls, not formally promulgated regulations. A good illustration of the distinction is Sullivan v. United States. 3 5 The Court found that the defendant taxpayer could not challenge indictments on the ground that the district attorney had failed to gain authorization from the Attorney General before presenting evidence to a grand jury. The Court reasoned in dicta that the directive requiring such authorization was merely a "housekeeping provision:" The evidence was presented by the District Attorney who was a representative of the Department of Justice, notwithstanding that he failed to comply with the departmental directive. For this he is answerable to the Department, but his action before the grand jury was not subject to attack by one indicted by the grand jury on such evidence.358
cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935 (1965) (whether to sign grand jury's indictment, thus commencing prosecution). 353. 347 U.S. 260 (1954). 354. 354 U.S. 363 (1957). 355. Id. at 388. 356. 359 U.S. 535 (1959). 357. 348 U.S. 170 (1954). 358. Id. at 173-74. Compare the nearly identical statement made by the dissent in a confession of error case, note 283 & accompanying text supra.
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One most unusual recent development may give new grounds for enforcing Department of Justice practices: violation of an enforcement "custom," though unarticulated, has led to supression of evidence under the court's supervisory powers. It was customary for U.S. Attorneys in the Second Circuit to give "target warnings" to witnesses who appear before a grand jury if the government had incriminating evidence against those witnesses. 3 59 In United States v. Jacobs,36 0 an Organized Crime and Racketeering Strike Force attorney, under supervision of a U.S. attorney, 3 61 had failed to give target warnings to the putative defendant, and the grand jury returned an indictment for perjury along with the primary indictment. The court of appeals affirmed the lower court's decision to suppress evidence of defendants' testimony before the grand jury, resting its holding on its inherent supervisory powers. 3 61 Noting that this case was not expected to establish constitutional precedent but that the suppressed testimony was an ad hoc sanction imposed to encourage "consistent performance," 363 the court forecast that "the effect of the sanction may be to bring the Strike Force and the United States Attorney to closer harmony, a boon for even-handed law enforcement which often will redound to the benefit of the prosecution rather than of the defense." 364 The government petitioned for certiorari on the ground that the Second Circuit exceeded its supervisory authority. 36 5 The Court heard oral argu359. See United States v. Jacobs, 531 F.2d 87 (2d Cir.), vacated and remanded, 429 U.S. 909, reaff'd, 547 F.2d 772 (2d Cir. 1976), cert. granted, 431 U.S. 937 (1977). The court conducted a survey of U.S. Attorneys to ascertain this custom. The custom was not contained in a distributed policy statement, but was a custom uniform throughout the circuit. Id. at 90. See also United States v. Scully, 225 F.2d 113 (2d Cir. 1955). 360. See note 359 supra. 361. Strike Force Attorneys are under supervision of the respective U.S. Attorneys for all trial and appearance proceedings. Establishing Guidelines Governing InterrelationshipsBetween Strike Forces and United States Attorneys' Offices, Att'y Gen. Order No. 431-70 (Apr. 20, 1970), reprinted in In re Subpoena of Persico, 522 F.2d 41, 68 (2d Cir. 1975). 362. 547 F.2d at 775. This was the court of appeal's second review of the case, on remand from the Supreme Court to review in light of the Court's interim decision in United States v. Mandujano, 425 U.S. 546 (1976). The Second Circuit reiterated that it had not relied on Mandujano or on any other constitutional grounds. 547 F.2d at 773-74. Suppression of the testimony led also to dismissal of the perjury count for lack of a predicate. Id. at 778. 363. 547 F.2d at 775, 778. 364. Id. at 778. 365. The government phrased the issue as follows: Whether a federal court of appeals possesses and should exercise supervisory power to suppress a defendant's allegedly perjurious grand jury testimony for the sole reason that the prosecutor neglected to follow the usual practice of other federal prosecutors in the circuit of giving "target warnings" to grand jury witnesses against whom the government has incriminating evidence. Brief for Appellant at 2, United States v. Jacobs, 431 U.S. 937 (1977) (cert. granted).
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ment in Jacobs twice. 366 The first argument centered on the court's authority, but the second revealed the Department of Justice directive that fornalized the practice of giving target warnings. 36 7 The government also argued that the Court should not add a new "Jacobs suppression" to the current arsenal of grounds for excluding evidence. Although the court of appeals limited its holding to the facts of the case, this breach in the rarely assailed wall of prosecutorial discretion must not be underestimated. The lower court in Jacobs has avoided deciding whether articulated policy provides a firmer foothold than customary practice on which to base judicial review and enforcement of proFuture opinions not only should answer this limsecutorial policy. 3 68 ited question, but also should delineate the boundaries of a circuit court's supervisory powers. Perhaps the ultimate paradox is reached at this point. The law to date seems to be that defendants cannot enforce prosecutorial policy. In confession of error cases, however, the Department of Justice has taken its own policy into court on enough occasions to bring that policy to the brink of judicial review. It would appear then that the most effective way for prosecutors to encourage the development of policy and to defeat their individual prerogatives is to continue to violate policy until the courts are sufficiently embarrassed to enforce it. E. Summary Although the legal foundation and wisdom of Professor Davis' theory are questionable, the fears that critics have registered about articulating
366. 46 U.S.L.W. 3388 (Dec. 7, 1977); 46 U.S.L.W. 3600 (March 20, 1978). 367. See note 18 supra. Although the government brought this new directive to the Court's attention as a matter of good faith, opposing counsel interpreted it as a further proof of the Strike Force Attorney's original policy violation. This new development may influence the Court's decision under the doctrine that it will review -regulations" as they appear when the case is submitted, rather than when court proceedings are initiated. See California Bankers Ass'n v. Schultz, 416 U.S. 21, 53 (1974). 368. It is also difficult to overlook dicta in Jacobs indicating that the APA theory presented earlier may be applicable. We did not specifically refer to the analogy of an agency being required to adhere to its own regulations, Service v. Dulles, 354 U.S. 363, 372 . . . (1957), because we recognized that the Attorney General in his prosecutorial function may be, strictly speaking, less restricted than the Secretary of State. However, the analogy is persuasive when the Attorney General actually promulgates Guidelines for supervision by the United States Attorney in specific circumstances . . . and inconsistent treatment results therefrom.
United States v. Jacobs, 547 F.2d 772, 774 (2d Cir. 1976). See notes 353-58 & accompanying text supra.
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and publishing prosecutorial policy are equally unfounded. The Department of Justice has sufficient authority under both its common law discretion and statutory delegations to formulate policy that controls personnel and their conduct in litigation. The objection that policy articulation is impractical rests on the false premise that policy must be a guaranteed success before it is promulgated. Enforcement policy exists now, and to insure that it works is merely to improve its articulation and application. The decision to publish policy does raise some deterrence problems, but they are counteracted by the fact that most policies and guidelines merely structure discretion leaving open the variations in application. In addition, although the FOIA now requires disclosure of many policies, such disclosures do not produce enforceable "law" suddenly upon their revelation. The rationale for FOIA disclosure is that the public should know the agency policies that affect it, not that agency policies have created new rights in the public. Finally, prosecutorial policy, once promulgated and published, would not become another tactic for defense counsel to use in frustrating the speedy and effective administration of justice. Although defendants may deserve an explanation of policy and deviance, they deserve no greater rights. If defendants do become able, as a matter of course, to raise prosecutorial policy violations as grounds for suppression of evidence or dismissal of indictments, the change probably will occur because of the Department's reluctance to articulate, publish, and practice policy effectively. Policy articulation does not create hard and fast rules within the administration of justice; it structures prosecutorial discretion so that criminal laws will be enforced effectively and even-handedly. Some policy reflects concern for constitutional rights, some seeks to insure efficient and effective use of limited prosecutorial resources. All policy reflects a concern that political pressures or lack of communication will cause unjust results. The ultimate question, then, is how the administration of criminal justice can be improved through the use of policy development.
V.
PROSPECTUS: THE DEVELOPMENT OF PROSECUTORIAL POLICY
The Department of Justice must take the lead in improving the consistency of criminal prosecution; individual U.S. Attorneys cannot develop policy that will be effective outside their own districts, and as products of a local political appointment process, they are ill-suited to making major
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national policy decisions. 3 69 First, the Department of Justice must continue to articulate policy for criminal behavior that receives major enforcement attention, like white collar crime, pension law violations, organized crime, and tax fraud. 37 These areas are susceptible to wide deviation in prosecution, and are easy areas in which to make centralized policy decisions effective. The Department also should develop appropriate procedural policy in other areas of especially complex practices, including grand jury practices, competency of defendants to stand trial, diversion, plea bargaining, charging alternatives, referrals to magistrates,
and sentencing.
3 71
Second, the Department should constantly communicate changes in its policies to the appropriate committees of Congress so that legislators can consider the propriety of new policies. This is not to suggest that Congress establish any informal procedure like a legislative veto, 372 but only to recommend that Congress always be aware of how completely the criminal law is enforced. The Department should forward to Congress copies of each change made in the United States Attorneys' Manual at the time such changes are distributed within the Department. Third, the Department should make clear to all of its employees that it will enforce policy statements, guidelines, and directives within the Department. 373 It should sanction violations of general policies
374
by rep-
369. Rabin has suggested that internal controls are most effective. His discussion demonstrates that the Department must give consideration to the role of investigatory agencies that refer prosecution to the Department, and to the effect that prosecutorial policies will have on those agencies. Rabin, supra note 4, at 1038-42. Malone, in his article on criminal prosecution of welfare and pension plan abuses, suggests that the lag in enforcement is caused by inefficient organization of the various agencies that have authority over particular crimes. Malone, supra note 6, at 467. He offers an enforcement program that would help to coordinate efforts of various agencies. Id. at 467-69. 370. See U.S. AIT'Y MAN. 9-2.132, .133 (Jan. 10, 1977); notes 30-31, 93 & accompanying text supra. Regarding pension law violations, see Malone, supra note 6. 371. The Department has begun to develop policy in some of these areas. See, e.g., U.S. ATT'Y MAN. 9-2.158 (Jan. 10, 1977) (pleas of nolo contendere); id. 9-11.250 (Supp. Dec. 16, 1977) (grand jury practices). 372. See Bruff & Gellhorn, CongressionalControl of Administrative Regulation: A Study of Legislative Vetoes, 90 HARV. L. REV. 1369 (1977). 373. Personnel supervision of this type should apply to Division attorneys in the field as well as to Assistant U.S. Attorneys. Communication among various branches of the Department should be a goal in itself, especially in light of the courts' reactions in United States v. Jacobs to violations made by Strike Force Attorneys of an enforcement practice that had become custom within the circuit. 547 F.2d 772 (2d Cir. 1976), cert. granted, 431 U.S. 937 (1977). See notes 359-65 & accompanying text supra. 374. Rabin has developed a simple form, to be completed by each prosecutor upon declining a case referred from an agency, that would provide a preliminary basis for a Department superior to review the declination. Rabin, supra note 2, at 1084-87. A more comprehensive recording system would facilitate internal controls of discretionary decisionmaking at all levels of the prosecutorial system. See note 151 supra (PROMIS briefing series).
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rimanding the attorney, and violations of more specific guidelines by correcting their effects on court records as well as by censuring the attorney at fault. Violation of specific directives should be sanctioned even more formally, by suspension or, in cases of egregious or willful misconduct dismissal. Fourth, since U.S. Attorneys have immediate supervision of Assistant U.S. Attorneys,3 7 5 the Department should inquire during the appointment process not only into the qualifications of any candidate for U.S. Attorney, but also into the candidate's understanding of the Department's prosecutorial policy and his willingness to follow and enforce that policy. Fifth, the Department should utilize its research capabilities to the fullest in developing means to control prosecutorial discretion. The Federal Justice Research Program 3 7 6 should investigate the disparity in departmental field operations, the efficiency of recordkeeping and retrieval systems, the effectiveness of various prosecutions, and the development and effectiveness of prosecutorial policy. To maximize the quality of results, and to insure that internal department politics do not infect the conclusions and recommendations, the Research Program should contract with carefully selected independent researchers to conduct such studies. Congress also can contribute substantially to narrowing and structuring the scope of prosecutorial discretion. To enact a criminal code that eliminates deadwood and reorganizes the criminal law would help to alleviate the problems that the "trashbin" approach to criminal law has created. 3 77 Additionally, Congress should attempt to depoliticize the process of appointment to any position within the Department of Justice, especially to that of U.S. Attorney. 37 8 The atmosphere in an office headed by a man or woman who supposedly is appointed by the President, who actually owes his or her appointment to one or more senators, and who is always accountable to the federal judiciary is not conducive to the rational development of a uniform and consistent national prosecutorial policy. Thus, the senatorial prerogative should be discontinued.
375. See 28 U.S.C. 542 (1970) (Attorney General shall appoint and remove Assistant U.S. Attorneys). 376. 28 C.F.R. 0.6(e) (1977). Congress has appropriated for the Program $2.000,000 for fiscal year 1978. Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations Act, 1978, Pub. L. No. 95-86, tit. 2, 91 Stat. 424 (1977). 377. See notes 164-165 & accompanying text supra. The Senate already has passed a version of the Criminal Code Reform Act of 1977. S.1437, 95th Cong., 1st Sess., 123 Cong. Rec. S6,831 (daily ed. May 2, 1977) (introduced by Senators McClellan and Kennedy). As has been noted, the Criminal Code Reform Act embodies at least one of the Department's policies and promises to make less onerous the task of policy development. See note 168 & accompanying text supra. 378. See 7-8 & accompanying text supra.
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Senatorial and judicial approval would still be possible, but the list of U.S. Attorney designates should originate from within the ranks of pro37 fessionals. 9 Finally, Congress must consider formalizing the exemption from the FOIA of documents that would serve only to facilitate avoiding detection of criminal violations. 3 8 The need for a legislative decision on whether to expand or contract the scope of Exemption 2 becomes increasingly evident as cases like Jordan and Ginsburg reach the courts, 38 1 involving requests for documents such as staff manuals of investigation procedures. This is ultimately a decision that should be made legislatively, not administratively or judicially. The courts also have a role to play-that of reassessing the common law position on prosecutorial discretion. At one time it may have been appropriate to allow prosecutors to exercise unfettered discretion. That assumption, however, no longer goes unchallenged, and it is incumbent upon the courts to stay abreast of the change; there is no real magic to the incantation of separation of powers. 382 First, the courts should recognize that policy delineates standards of conduct to expect from a prosecutor, much like the standards set forth in rules of ethics. 38 3 The courts should not step boldly into enforcing policy whenever a defendant asserts it. The fragility of policy as it is now developed is fairly illustrated by the Caceres384 and Jacobs385 cases. Should the courts begin deciding these cases against the government on broad grounds of prosecutorial policy, it is possible that the Department of Justice would reconsider immediately whether to articulate any policy like that contained in the United States Attorneys' Manual. 3 8 6 When the Department confesses
379, Proposed legislation to this effect may encounter stiff opposition in the Senate. Cf. H.R. 10514, 95th Cong., 2d Sess. (1978) (merit selection for U.S. Attorneys); H.R. 5576, 95th Cong., 1st Sess. (1977) (U.S. Attorneys to be appointed and removed by Attorney General). 380. Hawkes v. IRS, 507 F.2d 481 (6th Cir. 1974) ("sole effect" test). 381. See cases cited note 247 supra. 382. See notes 161-68 & accompanying text supra. Such an incantation appears in United States v. Cox, 324 F.2d 167 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935 (1965). See also cases cited note 1 supra. 383. E.g., PROSECUTION STANDARDS, supra note 5, 3.1 (a) (prosecutor has affirmative responsibility to investigate suspected illegal activity if other agencies do not do so). See Braun, Ethics in Criminal Cases: A Response, 55 GEO. L.J. 1048, 1056 (1967). 384. United States v.'Caceres, 545 F.2d 1182 (9th Cir. 1976) (as amended on denial of rehearing and rehearing en banc, Jan. 30, 1977), petition for cert. filed, 45 U.S.L.W. 3653 (U.S. Mar. 21, 1977) (No. 76-1309). 385. United States v. Jacobs, 547 F.2d 772 (2d Cir. 1976), cert. granted, 431 U.S. 937 (1977). See notes 359-65 & accompanying text supra. 386. See the government's statement in its brief in United States v. Jordan, quoted at n.252 supra. The government's objection in the Jordan brief is less than reasonable. Publication of prosecutorial
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error due to a violation of policy, however, it is the defendant who will suffer if the court does not grant the corrective motion. Courts need not go along with prosecutors' actions at every point in confession of error cases just to protect defendants; they can resolve this anomaly by using their contempt power or other sanctions to punish such abuses of its processes. The assertion of policy violations by defense counsel does not raise the spectre of mountains of frivolous litigation. Indeed, the courts should use their inherent powers to cut both ways: against abuse by the 3 87 prosecutor and against abuse by the defense.
VI. CONCLUSION
It is conceded that the problems raised in this article are extremely complex, and the balance of political forces that support the law in this area precarious. But the development of prosecutorial policy for federal law enforcement is both possible and necessary. Davis' scheme for channeling prosecutorial discretion is to apply administrative law structures to Department of Justice practices. While the very process of rulemaking may help to focus the attention of those prosecutors who are involved in rulemaking on preferred Department policies, the strength of the administrative model lies in judicial review of agency actions. Both APA and common law notions of reviewability, however, make it unlikely that courts would review cases involving prosecutorial discretion according to administrative law principles. The key to controlling prosecutorial discretion, therefore, lies not in administrative law. Instead, the Department of Justice, Congress, and the courts each must take appropriate steps toward depoliticizing appointments within the Department, supervising actions of U.S. Attorneys, reprimanding unauthorized enforcement practices, and developing remedies for putative defendants who are wronged by injudicious enforcement practices. Those who oppose the concept of structuring prosecutorial discretion at all may make one of four arguments, but none of their objections withstand scrutiny. First, the Department of Justice does have authority to
policy would have no direct impact, and so rescinding the United States Attorneys' Manual would be meaningless. If policy itself were to become litigable, of course, rescission would be much more understandable. 387. The courts should apply an abuse of discretion standard to the actions of the prosecuting attorney. Atlhough this may not be different than the standard previously applied under the rubric of "prosecutorial discretion," this latter term has gained a mystique that is unjustified and has become no more than an incantation for nonreview.
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articulate enforcement policies even if the effect of those policies is to narrow the scope of enforced criminal law. Second, empirical studies of whether articulated enforcement policy would sufficiently advance uniformity of prosecution while having a minimal effect on the deterrent goal of criminal law can be made only after a uniform policy is developed. Third, written guidelines and policies are disclosable under the FOIA because they constitute staff manuals that are general in nature, and do not focus on investigations of specific cases. Their disclosure therefore would not have the sole effect of permitting a criminal to avoid detection. Such guidelines already are disclosed, and they should continue to be available for public scrutiny. Developing a public image of uniform and equitable prosecutions should be at least as important to federal prosecutors as portraying the false image that they are fully enforcing the federal criminal code. Finally, and most importantly, federal courts are beginning to demonstrate an increased willingness to examine prosecutors' actions. The Jacobs, Rinaldi, and Caceres opinions seem to demonstrate that, while courts may wish to reprimand the Department for violations of policy made knowingly and in bad faith, they are caught by a perceived need to give defendants the belated benefit of a prosecutorial policy that has a constitutional nexus, even if the policy is in fact discretionary. At the same time, a strong dissent in the Supreme Court uses an argument like that raised in fourth amendment exclusionary rule cases-that this discretionary enforcement of policy permits probably guilty defendants to go free.3 88 If a policy violation reaches the courts that has no constitutional nexus, and prosecutorial bad faith is clear enough, or the integrity or supervision of lower courts is involved, courts may begin to develop less drastic remedies than dismissal or suppression to help the Department discipline its own prosecutors. The development of effective enforcement policy for federal prosecutors does have a place in the political and legal structure of the criminal justice system. The risks inherent in the development of policy are worth the benefit: a significant potential for improving the administration of criminal justice without adopting as rigid a scheme as the administrative law model would demand.
388. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 411 (1971) (Burger, C.J., dissenting). See also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHi. L. REV. 665, 667 (1970) (no evidence that exclusionary rule deters illegal conduct of law enforcement officials).
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Addendum: The extraordinary nature of the controversy surrounding prosecutorial policy has been underscored by recent court actions in Jordan and Jacobs. In Jordan, the United States Court of Appeals for the District of Columbia Circuit heard original argument sitting en banc on April 6, 1978. The Supreme Court subsequently disposed of Jacobs dismissing the writ of certiorari as improvidently granted.3 89 This action confines Jacobs to precedent in the Second Circuit, which, in turn, had already limited the case to its facts and an ad hoc sanction.3 9 0 While the precedential value of Jacobs is minimal, some speculation on the cause of this extraordinary action may be appropriate. First, the only intervening factor, other than Justice Blackmun's absence from the first argument and presence at the second, would appear to be the Government's issuance of the putative defendant warnings directive in the United States Attorneys' Manual.39 1 The petitioner's action effectively institutionalized nationally what the Second Circuit had termed "customary". Second, the internal rules and precedent of the Court indicate that one of the Justices who initially voted to grant certiorari had changed his mind, the Court then felt that no significant issue required resolution or that the totality of the circumstances did not warrant further consideration of that case. 3 92 While the Court, in this manner, avoided issues of an appellate court's power and the propriety of suppressing evidence, it has drawn the issue of enforcing prosecutorial policy to its Rubicon and left to the Department the question of crossing.
389. 98 S. Ct. 1873 (1978).

390. 547 F.2d at 778.
391. See notes 18, 367 & accompanying text supra. 392. Dismissal of a writ of certiorari as improvidently granted, while uncommon, is not unexplainable. The Rule of Four to grant a writ of certiorari also requires that one of the Justices who voted for the writ must move to dismiss the writ. Otherwise the Rule of Four would have no integrity. See, Burrell v. McCray, 426 U.S. 471 (1976) (Stevens, J., concurring). See also R. STERN
& E. GRESSMAN, SUPREME COURT PRACTICE 227-30 (4th ed. 1969). A related factor in this
decision may be the Court's doctrine of reviewing "regulations" as they appear when the case is submitted, rather than when court proceedings are initiated. See, California Bankers Ass'n v.
Schultz, 416 U.S. 21, 53 (1974).

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THE ADMINISTRATIVE LAW OF CRIMINAL PROSECUTION: THE DEVELOPMENT OF

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PRIMER ON FEDERAL CRIMINAL

THE FEASIBILITY OF AN ADMINISTRATIVE LAW MODEL FOR STRUCTURING

ARTICULATING PROSECUTORIAL POLICY ..................

A. Authority to Establish Policy ............................... B. Practicality of Developing Policy .........................

345 345 355 358 359

364 367 373 374 378

CONCLUSION ....................................................... I. INTRODUCTION

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See 28 U.S.C. 542 (1970).

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ceeding or has proceeded. vides:

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17. U.S. ATT'y MAN. 9-75.630 (Jan. 17, 1977).

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III. THE FEASIBILITY OF AN ADMINISTRATIVE

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123-24 (3d ed. 1972).

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92. 29 C.F.R. 101.1-.10 (1977).

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120. Id. at 93. 121. See, e.g., note I supra.

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190. 5 U.S.C. 552(a)(2)(B) (1976).

FREEDOM OF INFORMATION ACT 17 (1967).

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noted that Congress had inserted the word "administrative"

into the stat-

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"efficiency of the I.R.S. operations."

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389. 98 S. Ct. 1873 (1978).

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