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HOUSE_OVERSIGHT_016526

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Page 17 of 42 103 Minn. L. Rev. 844, *877 [*878] 3. Federal Oversight of Declination Decisions In the United States, only the federal justice system provides for a process of administrative review somewhat comparable to those in E.U. member states. Federal law grants victims a right to seek review of prosecutors' decisions within the Department of Justice hierarchy, although it also explicitly bars judicial review of Justice Department decisions in this process. !!4 Although decision makers in an internal review process have less institutional independence from those they review than do judges engaged in judicial review, they also have a comparative advantage in institutional expertise, which could translate into less deference to, and more meaningful oversight of, front-line prosecutors. In addition, federal law guarantees victims "the reasonable right to confer with the attorney for the Government in the case." '15 The Department of Justice interprets this not to create a right to confer before charges are filed, reasoning that no "case" exists until charges are filed. '!® Some lower courts have interpreted the statute differently, however, and concluded that it [*879] creates an enforceable right for victims to confer with prosecutors before, and about, the charging decision. One held that prosecutors cannot enter a non-prosecution agreement with a suspect until they confer with victims, and that if they fail to do so the court can order prosecutors to re-open the non-prosecution agreement. !!7 A few other lower federal courts have reached similar conclusions, !!8 although at least two have opposing conclusions. !!° Even in its stronger form, this is a limited entitlement, in effect, to an opportunity to try to influence charging decisions. Even the most aggressive federal courts on this point do not examine prosecutors’ good faith during consultations or their reasons for disagreeing with victims. In sum, neither the consultation right nor the right to revi

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