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					           THE ADMINISTRATIVE LAW OF
             CRIMINAL PROSECUTION:
              THE DEVELOPMENT OF
                   PROSECUTORIAL POLICY

                                       LELAND E. BECK*



                                                                                                  Page
      I.   INTRODUCTION ....................................................                       311
     II.   A    PRIMER ON FEDERAL CRIMINAL
           PROSECUTORIAL POLICY                     .................................               313
    III.   THE FEASIBILITY OF AN ADMINISTRATIVE
           LAW MODEL FOR STRUCTURING
           PROSECUTORIAL DISCRETION                          .................................      322
           A. Administrative Law Principles Applied to
              Criminal Law Enforcement .................................                            322
           B. Federal Court Jurisdiction to Review
              Agency Action .................................................                       327
           C. Limitations on Reviewability ...............................                          329
              1. APA nonreviewability ....................................                          329
              2. A functional analysis of the common law ...........                                333
           D. Summary ........................................................                      337
   IV.     THE VALIDITY OF ARGUMENTS MADE AGAINST
           ARTICULATING PROSECUTORIAL POLICY ..................                                    337
           A. Authority to Establish Policy ...............................                        338
           B. Practicality of Developing Policy .........................                          343

   * 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. Aaron-
son 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.
1978]                                PROSECUTORIAL POLICY


          C. Publication of Articulated Enforcement
             Policies and Guidelines .....................................                       345
             1. Must policy be disclosed? ..............................                         345
             2. Should policy be disclosed? ............................                         355
          D. Litigabilitv: The Sheep in Wolf's Clothing .............                            358
             1. Confession of error ......................................                       359
             2. Investigatory policy and constitutional
                guarantees: the IRS experience with
                 delegated authority .......................................                     364
             3. Judicial enforcement of internal prose-
                cutorial policy in defendants' favor ..................                          367
          E. Sum m ary ........................................................                  373
   V.     PROSPECTUS: THE DEVELOPMENT OF
          PROSECUTORIAL POLICY .......................................                           374
  VI.     CONCLUSION .......................................................                     378
                                      I. INTRODUCTION
   Prosecuting attorneys in the United States Department of Justice tradi-
tionally 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, com-
mentators 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 prose-
 cute 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); Confisca-
tion Cases, 74 U.S. (7 Wall.) 454, 457 (1868); Inmates of Attica Correctional Facility v. Rock-
efeller, 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 Free-
dom 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 Pol-
icy: 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 Dis-
cretion of Criminal Justice Officials, 1976 DUKE L. J. 651 (1976).
                           THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 27:310


an administrative law model. Professor Kenneth Culp Davis 3 would
structure prosecutorial discretion according to the Administrative Proce-
dure 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 pro-
secutorial policy may help to channel discretion by focusing prosecutors'
effort on uniform policy goals. The administrative model is not the an-
swer 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 litera-
ture. 6 The U.S. Attorney for each judicial district, in theory, is ap-
pointed 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, DISCRETION-
ARY 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 CRIMI-
NAL JUSTICE STANDARDS AND GOALS, REPORT ON COURTS, Standards 3.3, 12.7 (1973): NA-
TIONAL DISTRICT ATTORNEYS ASS'N, NATIONAL PROSECUTION STANDARDS, Standard 6.1
(1977). PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUS-
TICE, 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, al-
though 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
                                    PROSECUTORIAL POLICY


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 pros-
ecutorial discretion.
   The central issue of this article is whether a uniform prosecutorial pol-
icy should be articulated and published in some manner that strikes a
medium between the full administrative law model and unfettered discre-
tion. 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 pros-
ecutorial 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 com-

start 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 pros-
ecution, 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,
314                       THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 27:310


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 Depart-
ment's Petite policy, the practice of avoiding prosecution of an offender
in federal court for the same facts on which a state prosecution is pro-

Criminal 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 avail-
able 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 pol-
       icy 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.
1978]                                PROSECUTORIAL POLICY

                                      12
 ceeding or has proceeded.                  The United States Attorneys' Manual pro-
 vides:
           No Federal case should be tried when there has been a state pros-
        ecution for substantially the same act or acts without a recommenda-
        tion 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 enumer-
ate factors a prosecutor should consider when making a particular deci-
sion, or will illuminate the boundaries within which the prosecutor should
act.' 5 A good illustration of guidelines concerns the handling of obscen-
ity 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 correspon-
        dence 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 Associa-
tion, 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.
                       THE AMERICAN UNIVERSITY LAW REVIEW                [Vol. 27:310


     changed private letters, although obscene. This is not to say that pros-
     ecution 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 par-
     ticular 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 de-
     fense 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 long-
     standing 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).
19781                              PROSECUTORIAL POLICY


        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 inter-
pretative,2 0 and the term will be used here according to its usual adminis-
trative law definition.
   Discretionary decisions affect the criminal justice system in the follow-
ing 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 enforce-
ment 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, ADMINISTRA-
TiVE 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).
                            THE AMERICAN UNIVERSITY LAW REVIEW                             [Vol. 27:310


   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 de-
velopment 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 conversa-
tions by the intelligence community. Parallel instructions from the Attor-
ney General to the heads of all agencies require approval of consensual
recording of face-to-face conversations. 2 7 The policies that underlie in-
vestigatory guidelines vary from promoting administrative efficiency to
                                           28
protecting individuals' rights to privacy.
   The third discretionary decision-the determination of whether to pro-
ceed 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 involv-
ing criminal subversive activities, for example, must be expressly au-
thorized 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 cer-

    25. 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 demonstra-
tions, 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 Divi-
sion, 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 prosecu-
tions 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.)).
19781                               PROSECUTORIAL POLICY


tain laws, 3 ' to channel enforcement efforts toward certain types of of-
fenses, 3 2 to avoid dual prosecutions in federal and state courts, and mul-
tiple 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 poten-
tial 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 re-
view. 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 Gen-
eral 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)).
                           THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 27:310

 sitivity of the process and the desire for central control of decisionmak-
 ing.
    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 crite-
ria detailing the type of defendant eligible for diversion. 4 1 These
guidelines often are supplemented by U.S. Attorneys to reflect local fac-
                                               42
tual and political exigencies, and caseloads.
    The opportunity to plea bargain represents another point at which dis-
cretion 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 defend-
ant. U.S. ATT'y MAN. § 1-12.500 (Jan. 10, 1977).
     43. For example, a directive prohibits attorneys from dismissing charges against corporate offi-
cers 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 de-
partmental 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 com-
mencement 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).
1978]                               PROSECUTORIAL POLICY


missing is a Department directive forbidding the dismissal of indictments
procured by Criminal Division attorneys without the consent of the Divi-
sion. 48 Such a parallel is not always present, however, between a dis-
missal 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 Stat-
ute 49 including the presentation of evidence to grand juries, investiga-
tions,5" dismissals, 5' and, to an extent, the award of damages to crime
victims. 5 It maintains no similar controls on declinations, despite the
         2
                                                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 cer-
tainly have developed informal trial policies based on local law and prac-
tices 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 in-
dictment containing more counts than a previously dismissed indict-
ment. 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 ap-
peals " the U.S. Attorney's position becomes secondary. 58 In fact, dif-
ferences 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 Depart-
ment 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).
                          THE AMERICAN UNIVERSITY LAW REVIEW                            (Vol. 27:310

                III. THE FEASIBILITY OF AN ADMINISTRATIVE
    LAW MODEL FOR STRUCTURING PROSECUTORIAL DISCRETION

   Although the Department of Justice, through the United States Attor-
neys' Manual, has attempted to direct prosecutors' discretion to some
extent, the breadth and scope of their discretion remains. 60 Courts tradi-
tionally are reluctant to review prosecutors' discretionary acts. 61 Some
commentators, concerned about relatively unbridled discretion, recom-
mend 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 prac-
tices of executive and independent agencies. 6 3 Because the statutory
definition of "agency" 64 is all inclusive but for enumerated excep-
tions, 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 Presi-
dent. 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
 1978]                                PROSECUTORIAL POLICY

 Attorneys exercise under their independent authority,6 8 they may be con-
 sidered to comprise a series of agencies within the Department of Jus-
 tice. 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").
                           THE AMERICAN UNIVERSITY LAW REVIEW                             (Vol. 27:310

Congress must expressly or implicitly delegate its own legislative
power.72 Since Congress has not delegated rulemaking power to the De-
partment 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 spe-
cifically delegated rulemaking power or adhering to APA procedures, be-
cause 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 agen-
cy'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 de-
veloping details of administration. See Fahey v. Mallonee, 332 U.S. 245 (1947) (delegation to Fed-
eral 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, AD-
MINISTRATIVE 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-
1978]                              PROSECUTORIAL POLICY


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 prosecu-
torial 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 re-
sources 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 require-
ments 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).
                          THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:310

By APA terms, these adjudicatory procedures do not apply to prose-
cutors' 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 ex-
ception 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 prose-
cutors go beyond APA requirements and apply adjudicatory procedures to
discretionary decisions in a manner similar to the National Labor Rela-
tions 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 coun-
sel's decision not to issue a complaint. 9 ' At every stage of the de-
cisionmaking 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 dis-
cretion 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 proc-

    86. 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 disclo-
sure 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, com-
modities futures trading, federal elections, mail fraud).
                                    PROSECUTORIAL POLICY


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 adminis-
trative 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 ad-
ministrative 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 proce-
dures. See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 763-65 (1969) (dictum) (rule pro-
mulgated 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.
                           THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 27:310


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 judi-
cial 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
of subject matter jurisdiction.'    Although the Court recognized that it
previously had assumed such jurisdiction to exist, 10 3 it stated that an in-
tervening act of Congress 104 undercut the rationale of any such assump-
tion.' 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. Madi-
son, 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 indepen-
dent 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) (Fed-
eral Food, Drug, and Cosmetic Act does not forbid pre-enforcement review of regulations promul-
gated 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 con-
 trolling prosecutorial discretion, the federal judiciary could review its ac-
 tions 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 require-
 ments before Sanders, their ability to obtain judicial review of interpreta-
 tive rules would have been independently barred by the APA reviewabil-
 ity 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 pre-
cluded judicial review of the criminal prosecutor by statute. To the con-
trary, 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 possi-
ble 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).
                           THE AMERICAN UNIVERSITY LAW REVIEW                             [Vol. 27:310


   The second exclusion, when applied to actions of a criminal pros-
 ecutor, 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 of-
fice conveyed only a generalized sense of a prosecutor's duties. 117 There-
fore, 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 re-
view," 119 the question arises whether the APA precluded further com-
mon 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.   HURST, LAW AND SOCIAL ORDER IN THE UNITED STATES                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 MAN-
UAL ON APA].
  120. Id. at 93.
  121. See, e.g., note I supra.
1978]                               PROSECUTORIAL POLICY


prosecutors. The "by law" exclusion, therefore, can be construed
broadly enough to take account of common law developments in discre-
tion 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 situa-
tions 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 discre-
tion, but as a word only ascribing the duty to enforce laws to U.S. Attor-
neys,' 27 and incorporating the prosecutor's inherent common law discre-
tion. 128
   The third requirement, "committed to," ffindamentally limits the ap-
plication 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 & accom-
panying text infra.
   129. 5 U.S.C. §§ 704-706 (1976).
332                        THE AMERICAN UNIVERSITY LAW REVIEW                           (Vol. 27:310


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. Attor-
neys "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 fol-
lows: 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, ADMINIS-
TRATIVE LAW TEXT 514-15 (3d ed. 1972).
   132. This construction of the statute is consistent with the argument that judicial review is pre-
cluded 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-to-
agency-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, Ad-
ministrative Arbitrariness and JudicialReview, 65 COLUM. L. REV. 55 (1965); Davis, Administra-
tive Arbitrariness-A Final Word, 114 U. PA. L. REV. 814 (1966); Davis, Administrative Arbitrari-
1978]                               PROSECUTORIAL POLICY


APA's enactment and became a part of its exclusions as well as its def-
initions, 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. Sec-
ond, 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 es-
        cape 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 excep-
tion, 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-
                           THE AMERICAN UNIVERSITY LAW REVIEW                             [Vol. 27:310


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 statu-
tory 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 in-
tervening because of subject matter in controversy, such as national se-
curity. More often, the basis for restraint "is the impropriety of a perma-

that 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 re-
viewability. 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).
19781                               PROSECUTORIAL POLICY


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, lim-
iting 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 constitu-
tional 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 infor-
mally, 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 inves-
tigators 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).
                           THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 27:310


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 cer-
tain 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 sepa-
rately by imposing additional administrative controls, the four cumula-
tively 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 cur-
sory, 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); Peter-
son, 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).
 1978]                     PROSECUTORIAL POLICY


                               D. Summary
   The synthesis of administrative law and process with the process of
criminal prosecution, though conceptually valid, would not effectively re-
strain the scope of prosecutorial discretion. Notice and comment proce-
dures 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 discre-
tion, 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 en-
force rules and will guarantee that in making rules the agency has not
abused its discretion substantively or procedurally. At this point, the ad-
ministrative model breaks down.
   By whatever administrative process policy may be developed, jurisdic-
tion 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 jurisdic-
tion 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-to-
agency-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 pros-
ecutors' 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
                            THE AMERICAN UNIVERSITY LAW REVIEW                             (Vol. 27:310


Department of Justice,' 5 6 this situation need not continue. The Attorney
General and the Department of Justice are statutorily required to super-
vise the conduct of all litigation and to direct U.S. Attorneys in the dis-
charge of their duties.15 7 The Attorney General appoints all Assistant
U.S. Attorneys and special attorneys within the U.S. Attorneys' of-
fices.' 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. Objec-
tions 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 administra-
tive 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 artic-
ulate policy. Both assertions have some basis in truth, but neither is suf-
ficient 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, pre-
 servation, 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 pow-
ers, vests exclusive legislative power in the Congress.
1978]                               PROSECUTORIAL POLICY


 and only the executive can prosecute; nowhere is the executive granted
 authority to alter the criminal law by making policy. This argument es-
 sentially 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 pol-
 icy. 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 doc-
trine. 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 for-
mulate rules of enforcement that are effectively less proscriptive of con-
duct than are the parallel criminal statutes.
    Because the Department apparently does not supply Congress with pol-
icy 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 re-
quest, 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
                           THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:310


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 Presi-
dent's Commission on Law Enforcement and the Administration of Jus-
tice 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 be-
comes 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 dis-
cretion. Because this need is quite obvious to even casual observers, it
must be presumed that Congress is aware of the breadth and use of dis-
cretion. Although it has this knowledge, Congress has taken no legisla-
tive 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 examples-
codifications, 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 legisla-
tion, 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 JUS-
TICE, 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
1978]                               PROSECUTORIAL POLICY


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 "lawmak-
ing."
   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 initia-
tive to establish policy.
   There is no statistical proof that criminal sanctions deter criminal be-
havior; 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 knowl-
edge 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 develop-
ment 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 De-
partment of Justice to prosecute or not as it sees fit is strengthened by
Congress' explicit delegation of an analogous authority. By some stat-
utes, 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 con-
duct 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.
                            THE AMERICAN UNIVERSITY LAW REVIEW                              [Vol. 27:310


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 de-
veloping 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 adminis-
trative scheme and used criminal sanctions only as secondary support. In
the case of statutorily proscribed behavior to which prosecutorial discre-
tion 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 cer-
tain cases may be that in all other cases it wants prosecutors not to exer-
cise 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 delega-
tion 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 reg-
ulatory 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 offi-
cials, 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).
                                     PROSECUTORIAL POLICY


tain areas, has sought to institutionalize and therefore to constrict it by
formal regulation. The distinction between the "primary" and "secon-
dary" roles of a criminal sanction is at best only theoretical because, for
both roles, the sanction is predefined and the prosecutor effectively de-
cides 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 doc-
trine, or deterrence theory bars policy development, skeptics may ques-
tion whether there is any proven need for articulating prosecutorial pol-
icy. 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 policy-
 type 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 Administra-
tion, 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 inter-
views 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
                           THE AMERICAN UNIVERSITY LAW REVIEW                              [Vol. 27:310

shown at other points of the criminal justice process, most often in sen-
tencing procedures,' 8 1 one reasonably could infer that disparities in en-
forcement exist throughout the nation. An unstructured and regionalized
prosecutorial decisionmaking process does not support the traditional val-
ues 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 pol-
icy 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. At-
torneys are following articulated policy consistently.
   Although future policy may be based most appropriately on quantita-
tive demonstrations of disparity in discretionary decisionmaking and in
effectiveness of applying existing policies, research is not yet so sophisti-

solution, 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 SENTENC-
ING, 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 CIR-
CUIT (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 articula-
tion. 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                               PROSECUTORIAL POLICY


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 crim-
inal sanctions, because they wish to guard their ability to use discretion,
or, most importantly, because they fear that defendants will raise viola-
tions of policy as a defense to criminal prosecution. The basis for their
concerns over publication is well founded, for much information is acces-
sible under the Freedom of Information Act (FOIA). 18 6 Their anticipa-
tions 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 manage-
 ment 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 exemp-
tions narrowly, because it was the only committee report before both houses of Congress).
                           THE AMERICAN UNIVERSITY LAW REVIEW                               [Vol. 27:310

 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 Regis-
ter," 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 dis-
tinguish disclosable documents from instructions pertaining to litiga-
tion. 193 The House interpreted the staff manual provision more conser-
vatively, to require disclosure of agency materials that are the end pro-
duct of administration, and seemed to exclude from the disclosure re-
quirement 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 dis-
closed 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 viola-
tions 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 & accompany-
ing 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]                               PROSECUTORIAL POLICY


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 in-
                      2 1
                      0
vestigatory records.
   Exemption 2 is one of the most troublesome. In providing for nondis-
closure 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 ex-
        tent that the production of such records would (A) interfere with enforcement proceed-
        ings, (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) en-
        danger 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).
                           THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:310

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 legisla-
tive history agreed that the Senate report more accurately reflected the
congressional purpose. 20 7 Those cases that relied on the House interpre-
tation did so only "to prevent the circumvention of agency regulations
that might result from disclosure to the subjects of regulation of the pro-
cedural manuals and guidelines used by the agency .... ",     208 Because
Rose did not involve a situation in which there was a possibility of cir-
cumvention of procedure or regulations, the Court, affirming the court of
appeal's decision by requiring disclosure, did not decide whether the po-
tential for circumvention required the exemption of prosecutorial or inves-
tigative policy. 20 9 Several of the cases discussed in Rose therefore de-
serve 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
                                                                           2                      13
request. 21 2    The court, in an analysis of the staff manual requirement,
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.
                                    PROSECUTORIAL POLICY


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 re-
mand the district court ordered disclosure on finding that the materials
would not have the "sole effect" of enabling violators to escape detec-
tion. 216 The Internal Revenue Service appealed a second time, contend-
ing that the proper standard for disclosure was whether public knowledge
of the information would "significantly impede the enforcement pro-
cess." 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 re-
quested 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 with-
held. 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.
                          THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:310

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 cate-
gories of information covered by FOIA: "statements of policy and in-
terpretations ... 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 sub-
stantive 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 dis-
closure 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 let-
ters 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 recog-
nition of the need for frank discussion of sensitive legal and policy mat-
ters, 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 dis-
closed 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 Protec-
tion 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).
                                    PROSECUTORIAL POLICY


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 apply-
ing Exemption 5 to decisions made pursuant to the prosecutorial discre-
      232
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 coun-
sel's decision is final, it must be disclosed under the FOIA.2 35 If, how-
ever, 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 re-
marks 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 219-
21 & 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 clos-
ing 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 dem-
onstrating 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 dis-
covery). 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                       THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 27:310


   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 Depart-
ment 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 enforce-
ment 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 re-
port noted that the exemption covers investigatory files related to en-
forcement of labor and securities law as well as criminal law. 242 FOIA
was not intended to provide defendants greater indirect access to inves-
tigatory files than they would have through discovery procedures in litiga-
      2 43
tion.
   Both Exemptions 2 and 7 seek to prevent circumvention by a party of
criminal or administrative investigations; Exemption 2 protects the proc-
ess, 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 Informa-
tion Act to insure a narrowing of these exemptions. 24 5 Congress clearly
disapproved of cases that relieved the government of the burden of show-
ing 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 manu-
als, except when the sole effect would be circumvention of a valid
agency regulation.
    Many of the problems that attend the practice of disclosure of prosecu-
torial 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 Gov-

    247. 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 specifi-
cally applied).
   248. Accordingly, the entire United States Attorneys' Manual is available to the public for inspec-
tion and copying as it is redeveloped, except when the "sole effect" test makes disclosure nonman-
datorv. 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 dis-
       closed 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
                            THE AMERICAN UNIVERSITY LAW REVIEW                            (Vol. 27:310

ernment's assertions it would appear that the material should be disclosed
because none of it would permit a defendant to tailor his violative con-
duct to avoid detection. Once crime is detected and investigated, how-
ever, 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 of-
fice 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 dis-
closure. In its words,
      In a larger sense, the issue in this case is whether or not federal prose-
      cutors 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 Con-
      gress 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 docu-
       ment 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
19781                                 PROSECUTORIAL POLICY


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 pol-
icies 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 sys-
tems. It is plausible that federal prosecutors deal with more sophisticated
types of criminals, who often may have continuously available coun-
sel. 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 implica-
tions 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 propo-
nents 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-
                           THE AMERICAN UNIVERSITY LAW REVIEW                              (Vol. 27:310


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 non-
prosecution 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 enforce-
     ment 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 considera-
     tions, 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
                                             criminal statute merely for pur-
     detract from the deterrent effect of a262
     poses 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 en-
forcement policies, which mandate enforcement whenever factual circumstances fall within the cover-
age 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 Red-
mond 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 in-
volving 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).
1978]                               PROSECUTORIAL POLICY


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. Exemp-
tion 2 generally has been applied to auditing manuals in defense contract-
ing, oil refinery, and taxation.2 64 Prosecutorial policies, however, per-
mit 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 re-
spond 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 un-
impressed 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 pros-
pectively 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 Con-


   263. 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 objec-
tively 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, De-
suetude 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 disclo-
sure under the FOIA. See note 10 supra.
   268. Abrams, supra note 2, at 29.
                           THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:310

gress has not delegated such rulemaking power to the Department of Jus-
tice. 26 9 To make interpretative rules, the Department would find it easy
to provide merely notice of change, which is all that would be re-
          2 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 pol-
icy would tend to increase litigation, and that because of this, the De-
partment of Justice would stop developing policy altogether.2 72 Publica-
tion 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 be-
comes law that binds prosecutors. The conclusion that it is binding is not
necessarily correct because its premise is not correct. Policy must be dis-
closed 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 disclos-
able 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 re-

   269. 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.
1978]                             PROSECUTORIAL POLICY


view was unlikely. The need to develop policy is still compelling, how-
ever, 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 de-
monstrates 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" ex-
ception to its policy against prosecution for noncommercial consensual
mailings of obscene material. 2 7 9 The Court granted the motion to re-
mand with orders to dismiss, although three dissenters would have re-
versed 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, Confes-
sion of Error by the Solicitor General, 74 MICH. L. REV. 1067 (1976) [hereinafter cited as Confes-
sion 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).
                          THE AMERICAN UNIVERSITY LAW REVIEW                           (Vol. 27:310


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 Govern-
     ment in emphasizing to its staff lawyers the need for a consistent in-
     ternal administrative policy. But with all deference I suggest that is not
     a judicial function and surely not the function of this Court.
             If
         ... the Government attorneys who initiated this prosecution did
     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 de-
                         2 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 formulat-
ing." ' 28 4 Although he continued to espouse the nonreviewability of pros-
ecutorial discretion, which he argued as a circuit judge in Newman v.
United States ,285 he seemed to retract somewhat his indication in New-
man that when substantial court and prosecutorial resources had been de-
voted to obtaining a valid judgment, the Court should not rubber-stamp
departmental policy without at least examining its application to the par-
              28 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.
                                    PROSECUTORIAL POLICY


viewpoint-that the Court should always grant certiorari and vacate in
such cases. 28 8 The majority of the Court has consistently done just
        28 9
that.
   It is clear that a majority of the Supreme Court recognizes an obliga-
tion to grant certiorari in all cases involving confessions of error, 2 90 but
only a constitutional question requiring reversal in the minds of a major-
ity 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 ac-
tivism 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 decep-
tion 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 peti-
tion to the Supreme Court for certiorari. Before he could do so, however,
the government claimed that the second prosecution was a multiple pros-
ecution 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 exam-
ple, 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 co-
defendants 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.
                           THE AMERICAN UNIVERSITY LAW REVIEW                             [Vol. 27:310


 dismissal. 2 9 6 The motion was granted over Judge Pope's indignant dis-
       2 97
 sent.
   Rinaldi v. United States 298 demonstrates the first case in which the
 usually dissenting view prevailed in the lower courts, although the Su-
 preme Court reversed per curiam and allowed the confession of error to
justify a vacation of the judgment. With full awareness that a state con-
 viction 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 prod-
ding, 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 af-
firmed, saying "the public interest in avoiding manipulation of the judi-
cial 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 follow-
ing: "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 dis-
missal 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 ....
                                    PROSECUTORIAL POLICY


row majority affirmed, finding "appalling the Government's cavalier at-
titude 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 dis-
miss. Reasoning that the prosecutorial Petite policy was developed in
response to the Court's own dictates with respect to fairness to the de-
fendant and cooperation between state and federal criminal justice sys-
tems, 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 Govern-
ment's later efforts to terminate the prosecution were similarly tainted
with impropriety. ' 307 In Rinaldi, they were not. 30 8 Again, three jus-
tices 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 find-
ing that dismissal would contravene the public interest was an abuse of
            30 9
discretion.
   After Rinaldi, courts still will be reluctant to independently review pol-
icy 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 dismis-
sing 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 con-
fessed 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.
   309. 98 S. Ct. at 86 (Rehnquist, J.,    joined by White, J.,dissenting) (Burger, C.J., dissenting
without opinion).
                            THE AMERICAN UNIVERSITY LAW REVIEW                           [Wol. 27:310

dismissal when it is favorable to the defendant. Rinaldi and Orlando
demonstrate the egregious burdens of time and expense placed on a de-
fendant who litigates his conviction, but, according to the majority opin-
ion, 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 consis-
tency of prosecutors' practice. If defendants were to present similar pol-
icy 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 be-
tween 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 con-
stitutional 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 administra-
tive 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 indepen-
dent administrative scheme, I.R.C. § 7608(b) and is an agency within the Treasury Department.
I.R.C. § 7602.
                                     PROSECUTORIAL POLICY


testify.3 12 At the first indication of criminal fraud or evasion, revenue313
agents refer cases to IRS special agents for criminal investigation.
Upon referral, the power to compel production of documents and tes-
timony 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 de-
bate.3 16 The rights protected emanate from the fifth amendment, but it
is unclear whether the administrative guidelines are mandated by constitu-
tional 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 Miranda-
type 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, say-
ing 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).
                              THE AMERICAN UNIVERSITY LAW REVIEW                               [Vol. 27:310

 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 nonconstitu-
 tional 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 conversa-
 tions. 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 stat-
 ute. 324 Whether the internal personnel directive of clearly nonconstitu-
 tional 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 applica-

      320. 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 regula-
  tion, 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 corpora-
 tions 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 self-
 incrimination under the fifth amendment.
     322. Memorandum to the Heads of Executive Departments and Agencies from the Attorney Gen-
 eral (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.
1978]                               PROSECUTORIAL POLICY


ble to nonconstitutional violations. In denying rehearing, the court tem-
pered 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, how-
        ever, 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 crim-
inal case because of the government's failure fully to comply with an
internal regulation that is not required by the Constitution or by stat-
ute." 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 con-
stitutional 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 de-
veloped 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.
                            THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 27:310


 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 Red-
mond policy 3 32 would require the defendant to admit the essential ele-
ments of the crime. He would be forced to prove that he would not have
mailed obscene materials to a consenting adult for a personal, noncom-
mercial 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 dismis-
sal 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 govern-
ment. 3 35
   An alternative rationale for judicial enforcement of prosecutorial policy
would adopt Abrams' substantive/administrative dichotomy. 3 36 Accord-
ing 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 publica-
tion 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.
                                    PROSECUTORIAL POLICY


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 pro-
secutors. 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 con-
sidered 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 spill-
over phenomenon, which has caused courts to extend suppression of evi-
dence 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 viola-
tion 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).
                           THE AMERICAN UNIVERSITY LAW REVIEW                            [Vol. 27:310


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 discre-
tion and are not coupled with legislative enactment. 3 48 One court re-
fused 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 pros-
ecutorial 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 de-
fendants pretrial diversion, 3 50 raise due process questions, whether the
decisions are guided by articulated policy or are left completely to indi-
vidual discretion. 35 1 Courts have applied separation of powers and judi-
                                                352
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 delin-
quency); 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.),
19781                               PROSECUTORIAL POLICY


     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 doc-
 trine 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 dis-
missal 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 govern-
ing prosecutorial discretion, even though directives like those requiring a
U.S. Attorney to obtain approval for indictment do appear to be pro-
cedural. Such directives are really personnel controls, not formally pro-
mulgated 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 rep-
        resentative 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.
                           THE AMERICAN UNIVERSITY LAW REVIEW                             [Vol. 27:310


   One most unusual recent development may give new grounds for en-
forcing 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. at-
torney, 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 deci-
sion 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 de-
fense." 364
   The government petitioned for certiorari on the ground that the Second
Circuit exceeded its supervisory authority. 36 5 The Court heard oral argu-

   359. 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).
1978]                                PROSECUTORIAL POLICY


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 cus-
tomary practice on which to base judicial review and enforcement of pro-
secutorial policy. 3 68  Future opinions not only should answer this lim-
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 con-
fession 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 atten-
tion 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 speak-
        ing, 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 there-
        from.
United States v. Jacobs, 547 F.2d 772, 774 (2d Cir. 1976). See notes 353-58 & accompanying text
supra.
                     THE AMERICAN UNIVERSITY LAW REVIEW            [Vol. 27:310



 and publishing prosecutorial policy are equally unfounded. The Depart-
 ment of Justice has sufficient authority under both its common law discre-
 tion 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 effec-
tively.
    Policy articulation does not create hard and fast rules within the ad-
ministration of justice; it structures prosecutorial discretion so that crimi-
nal 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 un-
just 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 consis-
tency 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
19781                                 PROSECUTORIAL POLICY


national policy decisions. 3 69 First, the Department of Justice must con-
tinue to articulate policy for criminal behavior that receives major en-
forcement attention, like white collar crime, pension law violations, or-
ganized 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 approp-
riate 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,
                      3 71
and sentencing.
   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 Con-
gress 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 De-
partment. 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 prosecu-
 tion 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 Legis-
lative 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).
                          THE AMERICAN UNIVERSITY LAW REVIEW                          [Vol. 27:310


 rimanding the attorney, and violations of more specific guidelines by cor-
 recting 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. Attor-
 ney, but also into the candidate's understanding of the Department's pro-
 secutorial policy and his willingness to follow and enforce that policy.
    Fifth, the Department should utilize its research capabilities to the ful-
 lest in developing means to control prosecutorial discretion. The Federal
Justice Research Program 3 7 6 should investigate the disparity in de-
partmental 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 re-
sults, 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 elimi-
nates 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 Presi-
dent, 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 prosecuto-
rial 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 Ap-
propriations 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.
1978]                                PROSECUTORIAL POLICY


 Senatorial and judicial approval would still be possible, but the list of
 U.S. Attorney designates should originate from within the ranks of pro-
            37
 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 ad-
ministratively 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 rec-
ognize that policy delineates standards of conduct to expect from a pros-
ecutor, 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 pol-
icy, it is possible that the Department of Justice would reconsider im-
mediately 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 re-
sponsibility 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
                            THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:310

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 pro-
cesses. 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 ad-
 ministrative law structures to Department of Justice practices. While the
 very process of rulemaking may help to focus the attention of those pro-
 secutors 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 pros-
ecutorial 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 appoint-
ments within the Department, supervising actions of U.S. Attorneys, rep-
rimanding 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 with-
stand 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.
1978]                              PROSECUTORIAL POLICY


 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 uni-
 formity of prosecution while having a minimal effect on the deterrent
 goal of criminal law can be made only after a uniform policy is de-
 veloped. 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 con-
tinue 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 en-
forcing the federal criminal code.
    Finally, and most importantly, federal courts are beginning to dem-
onstrate 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 dis-
cretionary 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 pros-
ecutors does have a place in the political and legal structure of the crimi-
nal 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 administra-
tive 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).
                          THE AMERICAN UNIVERSITY LAW REVIEW                           [Vol. 27:310


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 prece-
dential value of Jacobs is minimal, some speculation on the cause of this
extraordinary action may be appropriate. First, the only intervening fac-
tor, 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 Depart-
ment 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 unex-
plainable. 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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