Private Law Theory

ABSTRACT
When it comes to the obligations of state prosecutors, the Fourteenth Amendment’s guarantee of ‘the equal protection of the laws’ does not mean that state governments must protect people equally. As a matter of constitutional interpretation this means that a prosecutor’s decision not to prosecute a criminal wrongdoer, no matter how benighted by prejudice, animus, or irrationality, may not be challenged by the victim of crime. But there is something deeply disturbing about the power of prosecutors to bury criminal cases and protect criminals. Favoritism of this kind grates against our sense of justice and undermines the legitimacy of our legal system. It runs counter to a system that otherwise depends upon and trusts the initiatives of private parties. It also contradicts the most basic, plain-English reading of ‘the equal protection of the laws’.

This Article argues that the Equal Protection Clause of the Fourteenth Amendment must be taken much more literally, even under the restrictive interpretations it has been given. After all, the prosecutor is a state actor, and their decision not to prosecute certain crimes is a state action that should be subject to review for discrimination under the Equal Protection Clause. But that is merely an assumption of this Article, because it is so plainly true. In fact, the Supreme Court has essentially conceded this point. It is not, in fact, the state action doctrine that prevents a crime victim from seeking federal-court review of a prosecutor’s decision not to prosecute. Rather, the Supreme Court has held that the crime victim does not have standing under Article III of the Constitution to challenge a decision not to prosecute crime. Under the rule of two cases, Linda RS and Leeke v Timmerman, the crime victim has no ‘judicially cognizable interest in the prosecution or nonprosecution of another’. Without this doctrine, it would be possible to challenge a prosecutor’s discriminatory decision to not prosecute crime …

Crain, John, The Constitutional Tort of Shielding Criminal Wrongdoers in Violation of the Equal Protection of the Laws (November 20, 2023), 86 Albany Law Review 599.