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

8/4/2019 The Administrative Law of Criminal Prosecution the Development of Prosecutorial Policy Beck

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THE ADMINISTRATIVE LAW OFCRIMINAL PROSECUTION:THE DEVELOPMENT OFPROSECUTORIAL POLICY

LELAND E. BECK*

PageI. INTRODUCTION .................................................... 311II. A PRIMER ON FEDERAL CRIMINAL

PROSECUTORIAL POLICY ................................. 313III. THE FEASIBILITY OF AN ADMINISTRATIVE

LAW MODEL FOR STRUCTURINGPROSECUTORIAL DISCRETION ................................. 322A. Administrative Law Principles Applied to

CriminalLaw Enforcement ................................. 322B. Federal Court Jurisdiction to ReviewAgency Action ................................................. 327

C. Limitations on Reviewability ............................... 3291. APA nonreviewability .................................... 3292. A functional analysis of the common law ........... 333D. Summary ........................................................ 337

IV. THE VALIDITY OF ARGUMENTS MADE AGAINSTARTICULATING PROSECUTORIAL POLICY .................. 337A. Authority to Establish Policy ............................... 338B. Practicalityof 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, Th e 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 discussedin this article and for his continuing critique of the analysis. I would also like to thank my colleaguesat the Department of Justice, where I clerked during 1976-1977, for their comments, as well ascounsel of several congressional committees and others at the Washington College of Law for theiradvice on various drafts. The views expressed herein do no t necessarily reflect the position of theDepartment of Justice or any other agency of the federal government, but are solely those of theauthor.


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PROSECUTORIAL POLICY

C. Publication of Articulated EnforcementPolicies and Guidelines ..................................... 3451. Must policy be disclosed? .............................. 3452. Should policy be disclosed? ............................ 355

D. Litigabilitv: The Sheep in Wolf's Clothing ............. 3581.Confession of error ...................................... 3592. Investigatorypolicy and constitutional

guarantees: the IRS experience withdelegated authority ....................................... 3643. Judicial enforcement of internalprose-cutorial policy in defendants' favor .................. 367E. Sum mary ........................................................ 373

V. PROSPECTUS: THE DEVELOPMENT OFPROSECUTORIAL POLICY ....................................... 374

VI. CONCLUSION ....................................................... 378I. INTRODUCTION

Prosecuting attorneys in the United States Department of Justice tradi-tionally have exercised unfettered discretion in deciding which cases toprosecute. This broad discretion has been both judicially recognized andapproved,' yet concern over the impact of this discretion has grown. 2As the role of the federal prosecutor has expanded, a significant debatehas developed concerning the uniformity of prosecutorial decisionmakingacross the country.On one side of the debate, illustrated in Part III of this article, com-mentators have advocated that prosecutorial policy be developed within1. 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

to fford ... mercy violates the Constitution"); Furman v. Georgia, 40 8 U.S. 238 (1972); Confisca-tion Cases, 74 U.S. (7 Wall.) 454, 457 (1868); Inmates of Attica Correctional Facility v. Rock-efeller, 47 7 F.2d 375, 379-82 (2d Cir. 1973); Newman v. United States, 382 F.2d 47 9 (D.C. Cir.1967); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381U.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, InternalPolicy: Guiding the Exercise of ProsecutorialDiscretion, 19 U.C.L.A. L.REV. 1 (1971); Bubany & Skillem, Taming the Dragon:An Administrative Law for ProsecutorialDecision Making, 13 AM. CRIM. L. REV. 473 (1976); Ferguson, Formulationof Enforcement Pol-icy: An Anatomy of the Prosecutor'sDiscretion Prior to Accusation, 11 RUTGERS L. REV. 507(1957); Friedman, Some JurisprudentialConsiderations n Developing an Administrative Law for theCriminalPre-Trial Process, 51 1. URB. L. 433 (1974); Neumann, The New Era of AdministrativeRegularization:ControllingProsecutorialDiscretionThrough the Administrative ProcedureAct, 3 U.DAYTON L. REV. 23 (1978); Rabin, Agency CriminalReferrals in the FederalSystem: An EmpiricalStudy of ProsecutorialDiscretion, 24 STAN. L. REV. 1036 (1972); Vorenberg, Narrowing the Dis-cretion of CriminalJustice Officials, 1976 DUKE L. J. 51 (1976).

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THE AMERICAN UNIVERSITY LAW REVIEW

an administrative law model. Professor Kenneth Culp Davis 3 wouldstructure prosecutorial discretion according to the Administrative Proce-dure Act (APA), 4 and similar proposals have been made by variousnational advisory committees.5 The literature on the subject does notindicate coherent trends or significant legal analysis, however, and theadministrative law concept has gained less than universal acceptance.This article will examine the administrative law model from a traditionallegal perspective, an analysis that is new to the literature. As will beseen, 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 fo r its effectiveness on authoritythat does not exist, or on judicial review of administrative action, whichprobably 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 federalprosecutor'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 oftennominate or designate, the President consents, and the Senate confirms.The result of this appointment system is that federal justice is essentiallya 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 DISCRETIONARYJUSTICE]. 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 CRIMINALJUSTICE, 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: Guidelines or the Manhattan DistrictAttorney's Office, 11 CRIM. L. BULL. 48 (1975).6. Cf. Malone, CriminalAbuses in the Administrationof Private Welfare and PensionPlans: AProposal or a National Enforcement Program, 1976 So. ILL. U.L.J. 400, 466-94 (1977) (author,formerly associated with the Department of Justice, does no t 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 quiterare. See, e.g., Removing Politics From the Administration of Justice: Hearings on S.2803 andS.2978 Before the Subcomm. on Separationof Powers of the Senate Comm. on the Judiciary, 93dCong., 2d Sess. 155 (1974) (statement of Nicholas de B. Katzenbach that political influence tends to

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federal prosecution naturally arise. Part IV of this article will address theopposition to Davis' proposal and the arguments most often presented todetract from the merit of articulating policy at all. The first tw oarguments-that only Congress has the constitutional authority to makethe laws, and that no studies have demonstrated that internal controls ondiscretion are needed-are makeweight arguments. The last tw oconcerns-that policy, once articulated, should not be published, andthat if it is published or articulated, it will become litigable-are moresubstantial. Recent developments in the law, however, demonstrate thatconcerns about publication and litigabilty do not stand in the way ofarticulating policy. Indeed, these recent developments actually make itmore compelling that the Department of Justice articulate and enforce itspolicies 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 amedium between the full administrative law model and unfettered discre-tion. To determine whether the American system of justice has a placefor such an articulation it is necessary to construct the opposing positionsin a legal and political dialectic, as presented in Parts III and IV. Part Vresponds to the dialectic by suggesting complementary steps to be takenby the Department of Justice, Congress, and the courts, and it profitsfrom the political currents that underlie the entire subject of structuringthe scope of prosecutorial discretion. First, however, the reader should befamiliar with the state of the art-the scope of presently articulated pros-ecutorial policy.

II. A PRIMER ON FEDERAL CRIMINALPROSECUTORIAL POLICYThe 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, FederalProsecutionof LocalCorruption: 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, inpractice, 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 amatter 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 theproblem. In addition, federal administrative law is generally mature and well documented, in contrastto diverse or nonexistent state administrative law. For a survey of related state prosecution issues, seeF. ILLER. PROSECUTION: THE DECISION TO CHARGE A SUSPECT WITH A CRIME (1969); Note,


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pletely. Having fewer resources and less time than necessary to pursue allpotentially prosecutable criminal investigations, the Department has ofnecessity made some enforcement decisions, 10 whose impacts range fromspecific cases to general enforcement policy. The range of opportunitiesto exercise discretion and the scope of discretion at each decisionmakingpoint still are broad, however, and best can be illustrated by a survey ofthe federal prosecutorial process.Although the Department of Justice has not coined specific terms forvarious types of decisions, this article, fo r the sake of clarity, shall attachspecial meanings to the words "policy," "guideline," and "directive."A policy constitutes the broadest statement of an agency's attitude towardparticular subjects." A good example of broad policy is the Depart-ment's Petite policy, the practice of avoiding prosecution of an offenderin 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 pleabargain).

10. For example, the United States Attorneys' Manual reflects some of the enforcement decisionsthat are most clearly formulated. UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATESATTORNEYS' MANUAL [hereinafter cited as U.S. ATT'Y MAN.]. Th e nine-volume Manual is avail-able under the disclosure requirements of the Freedom of Information Act from the Executive Officeof United States Attorneys, United States Department of Justice, Washington, D.C. 20530, at S.10per page. U.S. Arr'Y MAN. 1-1.400 (Aug. 31, 1976). See Freedom of Information Act, 3, 5U.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 limitationshereby 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-Each ase is different and must always be treated on its facts. Generalguidelines, however, will help assure evenhandedness, consistency, and equal treatmentby different United States Attorneys' Offices in similar cases.(2) Consistency Where a generally consistent Government position is appropriate, acomprehensive vehicle for dissemination of materials will be an aid in maintaining thisconsistent position in the courts.(3) Efficiency-Recurring questions can easily and quickly be disposed of by statementsof general policy, thus avoiding the loss of time in dealing with problems on an ad hocbasis, or in attempting to ascertain policies. Frequently encountered questions of law canalso be anticipated and answered utilizing the Department's collective experience.(4) Communication-TheManual will serve as a single repository where statements ofgeneral 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 policiesthat are in need of scrutiny and change.

11 . Much as the United States has a foreign policy, it has a litigative policy. Policies may beformal or informal and may be as broad or narrow as the agency wishes.

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ceeding or has proceeded. 12 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 demonstratingcompelling Federal interests for such prosecution. 13

When several offenses arise out of a single transaction, they shouldbe alleged and tried together and should not be made the basis ofmultiple 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 shouldact.' 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 casesshould be to restrain the exploitation of obscene private correspon-dence for commercial gain .... The principle thrust of prosecutionsshould be directed toward those who are the prime movers in suchendeavors.

It is the Department's view that generally no useful purpose isserved 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), bu t it existedprior to the case. Although the original departmental policy involved dual prosecution, Department ofJustice Press Release, April 6, 1959, the Solicitor General in Petite applied it to closely relatedsituations of multiple federal prosecutions that are no t otherwise barred by the double jeopardy clauseor 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 encompasssuccessive 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 anattorney 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 recentlythe National District Attorneys' Association. See sources cited at note 5 supra.16. Redmond v. United States, 384 U.S. 26 4 (1966). This case illustrates an earlier version of

the policy. Id. at 265.

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changed private letters, although obscene. This is not to say that pros-ecution may never be instituted in such cases. Rather, prosecutionshould be the exception and confined to those cases involving repeatedoffenders or other circumstances which may fairly be characterized asaggravated. . . United States Attorneys should give careful consideration to allof the surrounding circumstances, such as the subject's prior record,particularly with respect to his involvement with obscene materials andsex related offenses, his employment, including his opportunity forclose association with young people; and his educational level ...

The United States Attorney should determine initially whether astrong warning and declination of prosecution is adequate in the par-ticular case. This disposition should suffice in the routine cases ofconsensual obscene private correspondence. In other cases, the UnitedStates Attorney should give serious consideration to exploring with de-fense counsel voluntary submission by the accused to psychiatricevaluation .... 17

Directives are still more specific than guidelines, usually instructingone or more officials by title to act in a certain manner. Directives do notfocus on particular cases and should not be confused with an individualinstruction to handle a particular prosecution in one specific way; theydeal with a class of cases or situations. In the course of discussing grandjury practices, the Department recently has directed the following:

Notwithstanding the lack of a clear constitutional imperative, it is theinternal policy of the Department to advise grand jury witnesses of thefollowing matters: 1) the general subject matter of the grand jury's-inquiry . . . ; 2) that the witness may refuse any question if a truthfulanswer to the question would tend to incriminate him; 3) that anythingthat the witness does say may be used against him; and 4) that thegrand jury will permit the witness the reasonable opportunity to stepoutside the grand jury room to consult with counsel if he desires. Thisnotification will be contained on a printed form ... which will beappended to all grand jury subpoenas. ...Moreover, although . . . "targets" of the grand jury's investigationare entitled to no special warnings relative to their status as "potentialdefendant(s) in danger of indictment," we will continue the long-standing internal practice of the Department to advise witnesses whoare known "targets" of the investigation . . . that their conduct isbeing investigated fo r possible violation of federal criminal law. This

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

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supplemental "warning" will be administered on the record when thetarget witness is advised of the matters discussed in the preceeding[sic] paragraph. 18

Unlike policy and guidelines, directives are mandatory, not advisory. Tothe extent they are known to exist, directives always cover proceduralaspects of criminal prosecution. 19 Rules can be either legislative or inter-pretative,20 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 againstspecific groups, use of investigatory techniques, the decision to charge,diversion of some individuals from the criminal process into rehabilitationprograms, decisions to plea bargain or to dismiss, trial decisions, andposttrial decisions. The structuring of discretion may best be illustratedby examining each stage of decisionmaking.The first decision that the Department of Justice or a U.S. Attorneymakes is to focus attention on certain types of persons or transactions anddeliberately ignore allegations of other types of illegal activity. Forexample, the IRS gives special attention to attorneys, accountants, anddrug traffickers for tax violations. 21 Similarly, the Department of Justicedoes not actively enforce sanctions against noncommercial consensualmailings of obscene material, 22 or against carrying penknives aboardcormercial aircraft. 23 The decision to enforce selectively usually ismade in conjunction with another investigatory or regulatory agency. 24Such a broad policy, followed at an early stage of prosecution, obviouslyinfluences 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 arule 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 forinsubordination. Rules may be enforced by the agency or by courts. See K. DAVIS, ADMINISTRA-

TiVE LAW TEXT 139-56 (3d ed. 1972).21. OversightHearings into the Operations of the IRS (Operation Tradewinds, ProjectHavenand 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 theorythat 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 manifestinjustice to some potential defendants).

24 . See, e.g., UNITED STATES DEPARTMENT OF JUSTICE, CRIMINAL TAX MANUAL 2-4(1973) [hereinafter cited as CRIM. TAX MAN.] (reference letters from IRS to Tax Division).

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Prosecutors also frequently decide which investigatory techniques areacceptable or preferred. For example, recent public concern with variouscovert activities of the Federal Bureau of Investigation has led to de-velopment of extensive administrative guidelines to regulate investigationtechniques. 25 Under an Executive Order,2 6 the Department of Justicemust follow certain preliminary procedures fo r interception of conversa-tions by the intelligence community. Parallel instructions from the Attor-ney General to the heads of all agencies require approval of consensualrecording of face-to-face conversations. 27 The policies that underlie in-vestigatory guidelines vary from promoting administrative efficiency toprotecting individuals' rights to privacy.2 8The third discretionary decision-the determination of whether to pro-ceed with formal criminal charges-is the first that has direct impact onparticular individuals.2 9 A number of guidelines place the decision tocharge in the hands of a centralized office. Prosecutions of cases involv-ing criminal subversive activities, fo r example, must be expressly au-thorized by the Criminal Division of the Department of Justice or ahigher authority. 30 Other exemplary guidelines require U.S. Attorneys toconsult 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 policiesand 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 tomonitor 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, seenotes 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 notto discuss particular evidence with conferees except for the nature of the charges and some basicfigures, Criminal Section attorneys may grant a conference "to permit proposed defendants to presentany explanations and evidence which may be considered helpful to the Department in reaching aproper decision on prosecution." CRIM. TA X MAN., supra note 24 , at 4.

29. The decision to charge and the choice of charges are subject initially to judicial review at thepreliminary 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 mostinstances this decision is highly deliberative. Even before arraignment, how ever, the individual maybecome 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 thedirection of the Criminal Section of the Tax Division. CRIM. TA X MAN., supra note 24 , at 1(quoting United States Attorney's Manual, tit. 4, at 3-4 (1971 ed.)).

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tain laws, 3 ' to channel enforcement efforts toward certain types of of-fenses, 32 to avoid dual prosecutions in federal and state courts, and mul-tiple prosecutions in federal courts, of offenses arising out of substantiallythe same acts,3 3 and to consider certain factors when selecting amongtwo or more applicable charging statutes. 34 Relatively little review ismade of decisions to decline prosecution.35Various special practice and investigation policies coincide with thecharging decision. The U.S. Attorney may still be investigating a poten-tial violation when he takes his case before a grand jury. Because thegrand jury then serves both an investigative and a quasi-judicial function,establishing policy in this context involves balancing the need to conducta thorough investigation against the need to accord witnesses their fullrights against self-incrimination. 36 Decisions to compel testimonythrough grants of immunity at this point of the process are regarded ascentralized no-charge decisions, subject to reversal only after careful re-view. 37 Directives on choosing immunity provisions 38 and guidelinesfor choosing informal rather than statutory procedures 39 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 perjuryprosecutions arising from trials resulting in acquittals); id. 9-2.133(x) (Jan. 10, 1977) (limitingprosecution 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 notes12-14 & accompanying text supra.

34 . This type of guideline generally is used as a means of controlling unnecessary litigation costsand delays. For example, of two statutes providing penalties for false statements and perjury, theManual states a policy of prosecuting under that statute whose division of evidentiary burdens favorsthe 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 guaranteedlegislative review of declinations in cases involving interstate travel to incite riots. 18 U.S.C. 2101(d) (1976). Th e United States Attorneys' Manual cites only these two provisions as the lawlimiting 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 givewarning 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 designeebefore 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 toaccept plea of nolo contendere).

38 . U.S. ATT'Y MAN. 9-2.158 (Jan. 10, 1977) (Department will rely exclusively on 18U.S.C. 6002-6003 (1976) instead of other statutory provisions).39. Id. 9-2.148 (Jan. 10, 1977) (promise by prosecuting attorney no t to prosecute will bindprosecutors in other districts) (citing United States v. Carter, 454 F.2d 426 (4th Cir. 1972)).

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sitivity of the process and the desire for central control of decisionmak-ing.After charging, or as an alternative to charging, a U.S. Attorney maychoose to divert a defendant from the criminal process by conditioningthe dismissal on rehabilitation. 40 Departmental guidelines provide crite-ria detailing the type of defendant eligible for diversion. 41 Theseguidelines often are supplemented by U.S. Attorneys to reflect local fac-tual and political exigencies, and caseloads. 42The opportunity to plea bargain represents another point at which dis-cretion enters the prosecutorial process. Department of Justice directiveschannel this discretion 43 although individual U.S. Attorneys may limitplea negotiations and agreements further as they deem appropriate. 44Decisions to dismiss an indictment or an information border closely oninitial decisions regarding whether to prosecute or to decline. In general,decisions to dismiss are within the U.S. Attorney's discretion, 45 althoughin some instances they require notice to Congress 46 or consent by thedefendant. 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 furthercontact with the criminal justice system. Id. 1-12.020 (if diversion is successful charges will bedismissed and no permanent record will be maintained). See note 154 infra.41. Defendants who are addicts or wh o have had two or more prior felony convictions or whoare accused of violating the public trust or of committing an offense related to national security orforeign affairs, or who should be diverted to the state are no t eligible for diversion. Id. 1-12.100(Mar. 17, 1977).42. See, e.g., U.S. ATTORNEY'S OFFICE FO R THE DISTRICT OF COLUMBIA, SCREENING

AND PAPERING MANUAL 41 (1978). Despite the complex legal problems attendant the terminationof 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 byhigher 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 localdecisions are requiring pleas to the lead or top count, reducing a charge by only one degree, anddismissal only after testimony as a prosecution witness.

45 . U.S. ATT'y MAN. 9-2.050 (Jan. 10, 1977) (unless otherwise required, U.S. Attorneysmay move for dismissal without authorization, although they should seek advice from agencies whoreferred 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, 37 2 F.2d 453 (4th Cir.), cert. denied, 387U.S. 907, 913 (1967).

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missing is a Department directive forbidding the dismissal of indictmentsprocured 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 Sectionof the Criminal Division controls the institution and progress of casesbrought 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 crimevictims. 52 It maintains no similar controls on declinations, despite thelesser degree of external control they receive. 53The 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 centralizedpolicy except in particularly complex trial situations.54Policy guidelines do cover posttrial decisionmaking. U.S. Attorneysmust 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 arequest for the death penalty unless approved by the Attorney General. 56Because 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 theU.S. Attorneys to the Department of Justice have led to reversals byconsent for policy reasons. 59

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 felonyconviction 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 acoherent policy often is necessary to organize consistent theories of proof. CRIM. TAx MAN., supranote 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 authorizationfor 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, 38 4 U.S. 26 4 (1966) (confession of errorbecause Department violated policy against nonprosecution of consensual, noncommercial mailing ofobscene literature).

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III. THE FEASIBILITY OF AN ADMINISTRATIVELAW MODEL FOR STRUCTURING PROSECUTORIAL DISCRETION

Although the Department of Justice, through the United States Attor-neys' Manual, has attempted to direct prosecutors' discretion to someextent, the breadth and scope of their discretion remains. 60 Courts tradi-tionally are reluctant to review prosecutors' discretionary acts. 61 Somecommentators, concerned about relatively unbridled discretion, recom-mend that the principles of administrative law be applied to prosecutorialdecisionmaking. 62 The administrative law model, however, is fraughtwith problems.

A. Administrative Law Principles Appliedto CriminalLaw Enforcement

Congress enacted the APA to make uniform the procedures and prac-tices of executive and independent agencies. 63 Because the statutorydefinition of "agency" 64 is all inclusive but for enumerated excep-tions, 65 the APA "apparently confers agency status on any administrativeunit with substantial independent authority in the exercise of specificfunctions." 66 Clearly the Department of Justice is an agency within themeaning 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 thisproposal. See Imbler v. Pachtman, 42 4 U.S. 409, 431 & n.33 (1976) ( 1983 civil action fordamages) (although prosecutor has absolute immunity as an advocate, there exists a point in hispreparatory activities when he stops acting as prosecutor and acts only as an administrator subject toreview). This decision was no t a full review of a prosecutor's actions as an administrator. See notes109-55 & 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 itis 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). Th e Act specifically excludes the Congress and thefederal 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 thePresident 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. AtkinsonCo., 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 involvedin rlemaking and adjudication, government organizations that perform neither function neverthelessmay 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 agencieswithin the meaning of the APA. 5 U.S.C. 105 (1976). Although U.S. Attorneys may be appointed

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Attorneys exercise under their independent authority,68 they may be con-sidered to comprise a series of agencies within the Department of Jus-tice. 69Since the Department of Justice is an agency, the APA's proceduresfor legislative rulemaking and adjudicatory hearings could be applied toit. Not all APA procedures are directly applicable to the Department,however. First, the APA prescribes notice and comment procedures forpromulgating legislative rules ,70 which bear the full force and effect oflaw. 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 theDepartment 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 basedon 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 broadhistorical base, there was no discussion of the prosecutor in the legislative history of the APA torefute the operation of clear statutory language. Congress gave lengthy consideration to the meaning

of "agency," bu t their primary concerns were foreign and military affairs, no t 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 havedenied 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, theagency must publish in the Federal Register a notice of proposed rulemaking and a request forcomments from all interested persons. Id. 553(b). At an announced time and place an agency mustaccept 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., FederalFood, Drug, and Cosmetic Act, 701(e)(2)-(3), 21 U.S.C. 371(e)(2)-(3) (1970) (oral hearingrequired where responses received to notice of proposed rulemaking). Cf. United States v. StorerBroadcasting Co., 351 U.S. 192, 205 (1956) (statutory requirement of oral hearing may be obviatedwhere applicant does not state a valid basis for hearing).After considering the material presented, the agency may make a formal promulgation and mustpublish its rules or regulations in the Federal Register. Thirty days after publication, if no otherperiod is prescribed, the rule will take effect under the sanctions of the enabling act. Id. 553(d). Itwill remain in effect until some further action, either formal agency action or congressional alterationof the enabling act, one-house veto, or a judicial declaration that the rule or regulation exceeds theagency's delegated authority. See, e.g., id. 553(e).

71. K. DAVIS, ADMINISTRATIVE LAW TEXT 126 (3d ed. 1972). Rules must be made pursuantto the powers granted to the agency by the legislature, and to be valid they must be "constitutionalwithin the granted power." Id. When these requirements are met, the courts will grant the full forceand effect of the law to agency rules. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347U.S. 260 (1954) (upholding discretionary determination by Board of Immigration Appeals becauseregulations promulgated under 19(c) of the Immigration Act of 1917 granted Attorney General'scomplete 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) (onremand from the Supreme Court, statements made by the Interior Department were found to haveforce and effect of law whether statement was characterized as "legislative" or "interpretative").

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Congress must expressly or implicitly delegate its own legislativepower.72 Since Congress has not delegated rulemaking power to the De-partment of Justice,7 3 the APA procedure fo r legislative rulemaking is notnow 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 generallydelegated powers and duties. 75 All statutes are subject to interpretationby the agency designed to enforce or administer them. Depending uponthe complexity of the statute and the agency's expertise with respect tothe 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 byCongress has long been recognized as necessary in order that the exertion of legislative power doesnot become a futility"); K. DAVIS, ADMINISTRATIVE LAW TEXT 145 (3d ed. 1972). When makingrules, an agency must adhere to the express or implied intent of the authorizing statute. Id. Congressoften 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 conservatorcould 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 arebroad, bu t specific. Any litigation involving the United States, an agency, or an officer thereof isreserved to the Department of Justice. 28 U.S.C. 516 (1970). An y officer of the Department ofJustice can be sent to any state or district within the United States to attend to the interests of theUnited 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 havingforce of law . . . the rules the agency makes pursuant lo the granted power have thesame force as a statute if they are valid ....

At the opposite extreme, where no power has been delegated to the agency to makelaw through rules, the agency's public statements of what it will do in enforcing or inadjudicating 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 adispute 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 anadministrative decision has been formalized and its effects felt in a concrete way by the challengingparties"), 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 entitledto judicial relief for a supposed or threatened injury until the prescribed remedy has beenexhausted").

77. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (involving determination of whetherwaiting time was working time under the act) (while rulings, interpretations, and opinions of adminis-

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has withstood a change in the authorizing statute through reenactmentmay gain almost the status of a legislative rule in the eyes of the court. 78

Theoretically, the administrative law model for structuring prosecu-torial discretion would capitalize on a court's deference to the Departmentof Justice's interpretation by rule of Congress' intentions regarding themeaning and proper level of enforcement of the criminal law. During thetime that prosecutors have been formulating policy, 79 the argument maygo, Congress has tampered with substantive criminal law 8 0 and rules ofcourt procedure, 81 but has not spoken regarding enforcement matters.Thus, although it has not specifically approved any single prosecutorialpolicy, courts can infer Congress' intention to permit the Department ofJustice sufficient authority to develop and use prosecutorial policy tobridge 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 greatweight. 8"The Second APA procedure, which governs agency adjudication, 83arises when an administrative proceeding is required by statute to be onthe 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 judgmentto which courts and litigants may properly resort for guidance"); K. DAVIS, ADMINISTRATIVELAW 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 UnitedStates, 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); Ac t of Oct. 3, 1964, Pub. L. No. 88-619, 1, 78 Stat. 995 (amending 18U.S.C. 1621) (perjury). Congress has been working on a major bill to codify the many scatteredcriminal 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 18U.S.C. 3491 (1970)) (authentication of foreign documents); Federal Rules of Criminal ProcedureAmendments Act of 1975, Pub. L. No. 94-64, 3(1)-(11), 3(13)-(35), 89 Stat. 370-76 (amendingvarious 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, individualadjudicatory 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 heldunder 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 ortenure of employees. See id. 554(a)(2)-(6).

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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 fo r agency hearing." 86 Inaddition, a prosecutor's decision to proceed with criminal charges willautomatically 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 theAPA because decisions not to prosecute also affect defendants' rights,8 7but are not required by statute to be on the record and do not receive denovo judicial review.8 8 Davis has recommended therefore that prose-cutors go beyond APA requirements and apply adjudicatory procedures todiscretionary decisions in a manner similar to the National Labor Rela-tions Board's procedure for handling unfair labor practice complaintsfrom private parties.8 9 The NLRB has established an appeals process 90that 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 adeclination.92

Although Department of Justice advisement procedures for certainwhite collar crime and complex litigation cases are not unlike the NLRBprocedure in form, 93 they are more discretionary in substance. This dis-cretion is necessary because public knowledge of approval to charge byspecial grand jury or by information might give a defendant earlier accessto 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 toconsider 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 onan individual. A decision to divert a defendant, for example, may condition his diversion on nominalrehabilitation. See notes 40-42 & accompanying text supra; note 154 infra.

88. Davis speculates that "[perhaps nine-tenths of the abuse of the prosecuting power involvefailure to prosecute, and courts normally have no occasion to review such cases." DISCRETIONARYJUSTICE, supra note 3, at 191.89. DISCRETIONARY JUSTICE, supra note 3, at 205-07. See notes 233-37 & accompanying textsupra.

90 . See 29 C.F.R. 101.1-.43 (1977).91. Id. 101.6 (1977). If the complainant challenges the prosecutor's decision no t to issue a

complaint, the entire file in the case is sent to Washington, D.C., where the case is fully reviewedby 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 institutingcases under enumerated statutes, including those covering espionage, trading with the enemy, com-modities futures trading, federal elections, mail fraud).

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ess needs controls because of its impact on defendants, 9 4 but externalcontrols such as those provided by the APA would inappropriately subjectprosecutorial decisionmaking to public scrutiny.Davis and others have recommended that prosecutors adhere to theAPA or similar administrative procedures to develop and articulatepolicies regarding prosecutorial discretion. 95 Of the three major adminis-trative law procedures- legislative rulemaking, interpretative rulemaking,and adjudication-only interpretative rulemaking is practically availablefor use in controlling criminal prosecutorial discretion.

B. Federal Court Jurisdiction to ReviewAgency ActionIf the Department of Justice, as an agency, were to follow Davis'suggestion and promulgate interpretative rules, putative defendants orcharging agencies might desire to challenge those rules in court. 96 Theability of these potential parties to obtain judicial review of administrativeaction 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-foundedrule 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 hasbeen referred to him by an agency, he should make a record of the decision and the reasons fordeclining. 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 ultravires, 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 Makv. Immigration and Naturalization Serv., 435 F.2d 728 (2d Cir. 1970) (alien argued that a regulationforbidding an adjustment of his immigration status was invalid because the statute authorized theAttorney General to use discretion in making adjustments); NLRB v. Pittsburgh Plate Glass Co., 27 0F.2d 167 (4th Cir. 1959) (Board may no t base unit determinations on past rulings where the statutecalls for a case-by-case analysis). Cf. United States v. Aarons, 310 F.2d 341 (2d Cir. 1962) (eventhough substantive rules were required to be published in the FederalRegister, failure to publish didno t 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'srules could be only interpretative, and as such would not necessarily be subject to APA notice andcomment 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 oncethe Department voluntarily followed notice and comment procedures it was obliged to adhere to themthroughout the promulgation of that particular rule. They might also want to object on the substantiveground that an agency must follow its own regulations once promulgated. See United States ex rel.Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); notes 353-55 & accompanying text infra.


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granted. 9 7 Section 10 of the APA states that "[a] person suffering legalwrong because of agency action, or adversely affected or aggrieved byagency action within the meaning of a relevant statute, is entitled to judi-cial review thereof," 98 and continues, "[a]gency action made reviewableby statute and final agency action fo r which there is no other adequateremedy in a court are subject to judicial review." 99 Until recently themajority of courts held that section 10 created an independent basis forfederal jurisdiction 100 to review agency action, although the statutorylanguage 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 grantof subject matter jurisdiction.' Although the Court recognized that itpreviously 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.' 05 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); DeeringMilliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961)). See also Industrial Broker-Dealer's TradeAss'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 matterjurisdiction). 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, notjurisdictional, and that nothing in the Act serves to extend the jurisdiction of the federal courts tocases 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 Councilv. 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 AP A 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 reviewof Department of Transportation rulings); Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967) (Fed-eral Food, Drug, and Cosmetic Act does no t 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 theprocedures prescribed by 360(b), and (c) of the Immigration and Nationality Act, bu t also couldpursue a remedy under the APA and Declaratory Judgment Act). 43 0 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.

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PROSECUTORIAL POLUCY

cases brought under the federal question jurisdictional statute. 10 6 TheCourt inferred by negative implication that Congress had never intendedthe APA itself to vest such jurisdiction.10 7 As a result of Sanders, evenif 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 afederal question were presented. 10 8

C. Limitations on ReviewabilityEven 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 beforeSanders or after, common law concepts of reviewability also would barjudicial review. 109

1. APA nonreviewabilitySection 10 of the APA 10o provides that judicial review is unavailableeither when Congress precludes it by statute or when "agency action iscommitted 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. "12106. 28 U.S.C. 1331(a) (1970 & Supp. V 1975) (conferring jurisdiction to review actionsbrought 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 theCourt admitted, it reversed its prior assumption. Second, the Court's opinion is at odds with priorcircuit court opinions, which reached their decisions independently. Third, given the Court's relianceon statutory construction and legislative history to hold that the APA is nonjurisdictional, it is possi-ble that Congress ma y 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 whoowned property surrounding proposed dam had standing to sue under 10 of AP A because economicinterests constituted actual or threatened injury-in-fact). See generally United States v. Richardson,418 U.S. 166 (1974) (a direct injury, and no t merely a general interest common to all members of

the public, is required for standing); Sierra Club v. Morton, 40 5 U.S. 727 (1972) (noneconomicinjury may be sufficient to show standing); Baker v. Carr, 36 9 U.S. 186 (1962) (plaintiffs mustallege 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 itspotentially 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 furtherlimitation on the scope of judicial review.112. See, e.g., 18 U.S.C. 1968(h) (1976) (recipient of RICO civil investigative demand mayseek review); id. 2518 (procedure for interception of wire or oral communications).


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The second exclusion, when applied to actions of a criminal pros-ecutor, presents an inordinately complex problem. 113 There are foursubclauses in the exclusion. Judicial review is precluded when (a) agencyaction is (b) committed to (c) agency discretion (d) by law. 1 4 Eachsubclause is significant, so that the provision calls fo r a rigorous analysissimilar to that used in examining the elements of a criminal offense. Forthe sake of clarity the elements will be examined in inverse order.The term "by law" most often connotes statutory law, since the APAis presumed to apply to agencies whose powers are delineated in theirenabling statutes. 11 5 The office of the criminal prosecutor developedearly 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 BecauseCongress 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 reviewsolely a matter of statutory interpretation. At the time of enactment, theAttorney General, relying on legislative history, concluded that becausesection 10 "deals largely with principles" it "also leaves the mechanicsof judicial review to be governed by other statutes and by judicialrules." 120 Many of the cases in which courts have refused to reviewprosecutorial discretion have occurred since the APA's enactment in1946,121 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 "statutoryexemption") (Voting Rights Act of 1965 required Attorney General to review reapportionmentplans); Strickland v. Morton, 519 F.2d 467 (9th Cir. 1975) (Classification and Multiple Use Act of1964 committed to Secretary of Interior's discretion the administration of public lands according tostandards 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 bemade). 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 greatenough to fall within the very narrow exception). See also L. JAFFE, supra note 100, at 372-76.116. J. HURST, LA W AN D SOCIAL ORDER IN TH E UNITED STATES 139 (1977).

117. Id. at 135.118. This dichotomy apparently lies behind Bubany and Skillem's conclusion that the office of thecriminal prosecutor should not be construed to be an agency subject to the APA. See Bubany andSkiIlem, 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 TH E

ADMINISTRATIVE PROCEDURE ACT 9 (1947) [hereinafter cited as ATTORNEY GENERAL'S MAN-UA L ON APA].

120. Id. at 93.121. See, e.g., note I supra.

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prosecutors. The "by law" exclusion, therefore, can be construedbroadly enough to take account of common law developments in discre-tion as well as statutory developments.The second subclause, "agency discretion," provides a very narrowexception to judicial review. The bare finding that an agency exercisessome discretion does not serve to exclude its action from judicialscrutiny.' 22 A statute that grants the agency power must show clearlyand convincingly that Congress seeks to restrict access to judicial reviewof 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 givencase, there is no specific law to apply. 124 The statute prescribing dutiesof U.S. Attorneys provides that they "shall prosecute for all offensesagainst the United States." 125 The provision, read literally, could meanthat U.S. Attorneys' duties are strictly ministerial because Congress haslimited the absolute discretion of the U.S. Attorney through the statutoryterm "shall." If "by law" is to include common law developments,however, courts' traditional reluctance to review prosecutors' actions 126instructs 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. 128The third requirement, "committed to," ffindamentally limits the ap-plication of the exclusion. The word "committed" is coupled with thescope of review provisions of the APA. 129 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 becausethe statute authorized the Attorney General to use discretion in making adjustments); NLRB v.Pittsburgh Plate Glass Co., 27 0 F.2d 167 (4th Cir. 1959) (Board may no t base its determinations onpast 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 inTransportation Ac t 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. EP. 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).

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the review of agency actions that are "arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law." 130 Becauseagency action that is an abuse of discretion cannot be "committed to"agency discretion, the courts are freed from this limitation on judicialreview.131 In addition, the line between valid exercises of discretion andabuses of discretion may help to determine what cases fall within agencydiscretion even under the term of the statute providing that U.S. Attor-neys "shall" enforce criminal law.132The final element requires that there be "agency action." According tothe statute, " 'agency action' includes the whole or a part of an agencyrule, order, license, sanction, relief, or the equivalent or denial thereof,or failure to act." 133 Each of the terms used in the definition also isdefined in the Act. 134 In total, the definition of agency action is allinclusive.Taking together the construction of all four terms, the definition ofnonreviewable actions by the criminal prosecutor can be stated as fol-lows: An action, or a failure to act, is precluded rom judicialreview if itis properly within the scope of the prosecutor's discretion as stated bythe legislature or the judiciary.

135Because 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 ONAPA, supra note 104, at 95 (Congress intended to dovetail new AP A with preexisting statutoryprovisions). The construction is consistent also with section 10(e) of the APA, which requires thereviewing court to hold unlawful agency actions that abuse agency discretion, and which some arguecontrols 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 amatter, other than rulemaking, including licensing. A "license" is an agency permit or any otherform of permission. A "sanction" involves an agency's imposition of a penalty, and may includewithholding of property, revocation of a license, imposition of a fine, assessment of damages, or anyother compulsory or restrictive action. "Relief' may take the form of a grant of money, recognitionof 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 betweenProfessor 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 ProfessorDavis' "Final Word," 114U. PA. L. REV. 816 (1966); Berger, Administrative Arbitrariness-AReply to ProfessorDavis, 114U. 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-ministrativeArbitrariness and JudicialReview, 65 COLUM. L. REV. 55 (1965); Davis, Administra-tive Arbitrariness-AFinalWord, 114 U. PA. L. REV. 814 (1966); Davis, Administrative Arbitrari-

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APA's enactment and became a part of its exclusions as well as its def-initions, whatever the common law of judicial review of the prosecutor asadministrator is, it is also the law of judicial review under the statute.The APA therefore adds no greater review than courts would apply underthe common law.2. A functional analysis of the common law

The common law of reviewability is important to examine for tworeasons.1 36 First, it holds the key to reviewability under the APA. Sec-ond, it determines reviewability also of administrative cases broughtunder federal question jurisdiction.Saferstein, 137 in making a functional analysis of the common law ofagency reviewability, isolated nine factors that courts may consider indeciding whether to review a particular agency action. 138 According tohim a court will consider in general:

how great a burden review placed on the efficient operation of courtsand agencies; and how great is the likelihood that unfairness will es-cape uncured if review is denied. The effect of granting or denyingreview 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,and the courts determines whether review should be denied.139

Of Saferstein's nine factors, four are particularly applicable to judicialreview of prosecutorial discretion. 140ness is Not Always Reviewable, 51 MINN. L. Rev. 43 (1967); Davis, AdministrativeArbitrariness-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 anduseless distinction" between reviewability under APA and common law).137. Saferstein, Non-Reviewability: A FunctionalAnalysis of "Committed to Agency Discretion,"

82 HARV. L. REv. 367 (1968). Saferstein intended his analysis to be used by courts as a threshholdinquiry into whether to review agency determinations. He believed that an initial assessment of thepotential impact of each particular instance of judicial intervention would expand the opportunities forreview currently available to dissatisfied petitioners. Use of his suggested formula and encouragementof partial review would open the courts to administrative review without imposing an overwhelmingburden on the judiciary. Id. at 370-71.

138. Saferstein found it necessary to consider the ways by which a court might narrow its reviewof 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 (comparingand 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 thesubject matter of agency action, (2) the managerial nature of the agency, (3) the ability of thereviewing court to ensure the correct result, (4) the need for expeditious operation of congressional

programs, and (5) the existence of other methods of preventing abuse of discretion. Id. at 380-95.Saferstein concluded his discussion of the nine factors by suggesting a doctrine of partial review-

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a. Broad agency discretion141As a rule, the broader the statutory grant of authority to an agency, themore reluctant the courts have been to review the agency's decisions. 142The major reason for this policy of nonintervention is that, absent strictstatutory guidelines, agencies with broad discretionary powers are notlikely to overreach the scope of that power. Courts in such cases wouldwish 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 makesit difficult to define the limits of discretion. Because it has been thecourts that have developed the current state of the law on prosecutorialdiscretion,' 43 one might argue that they should not now withhold judicialreview under a claim of inadequate statutory definition. U.S. Attorneysare advocates fo r the government, however, and operate under the statu-tory mandate that they "shall enforce" the laws.1 4 4 Courts are mostlikely to continue viewing prosecutors' discretion broadly, thus allowingprosecutors room to make advocates' enforcement decisions that courtsmay not wish to enforce.1 45

b. Impropriety of judicial intervention 146The impropriety of judicial intervention is essentially a political factor

that may account for a court's declining review even when no otherfactor 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 elementsof agency action that are reviewable before remanding the case to the agency. Id . at 395-96. Sincethe focus in this section is direct attacks on interpretative rulemaking, the partial review concept willnot 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 upra.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 generallyScharpf, 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 theauthority 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 ofpowers doctrine does no t preclude the enforcement of reciprocity of authority).

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nently appointed judge's interfering with the functions of an elected orpresidentially appointed official carrying out his own policies or those ofan elected superior." 148In the Department of Justice, each incoming administration sets its ownprosecutorial priorities by realigning the various litigating divisions, lim-iting personnel authorization, and redistributing funds. Although currentpolitical policy may influence the priorities of politically appointed upperlevel attorneys, whose positions are characterized by high turnover, 149rarely is the individual criminal case affected by national politics. Ideally,therefore, this "impropriety" factor should operate to restrain reviewonly when the conflict involves a separation of powers issue of constitu-tional dimension, and not when the conflict merely enters the politicalarena. "Impropriety" is a catch-all factor, however, and courts mayallow perceived political conflicts to weigh heavily in their decisions todecline review.c. Necessity of informal agency decisionmaking15 0

Without an adequate record of the process by which a particularagency decision has been made, a court would be unable to review thevalidity of agency action. It would become immersed instead in the issueof what degree of documentation to require of an agency. It is not alwayspossible or desirable to create a reviewable record, however, fo r someagencies 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 judicialreview. The trend may be toward greater amounts of documentation fo r avariety of reasons-legal, administrative, and academic.'-" This formaldocumentation 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 isrestricted 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, hasinitiated a full documentation process of the decision to prosecute. See NLRB v. Sears, Roebuck &Co.. 421 U.S. 13 2 (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 itscomputerized PROMIS system. The U.S. Attorney in the Northern District of Illinois has madesimilar administrative efforts and the result in both cases has been an improvement in completenessof records. See Neumann, supra note 2, at 23-24 & nn.5-6 (giving citations).

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been required generally to record decisions made under policy andguidelines. 152

d. Quantity of potentially appealable agency actions 153Were courts to open the floodgates to review an interpretative rule or

the procedure under which a rule was promulgated in one case, theymight justifiably anticipate many other defendants to beseech them to

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