. . . All the regulatory agencies have important power not to enforce – to push a little more or a little less, to be more aggressive or more empathetic, to hold out against pressures for nonenforcement or weak enforcement or to yield to such pressures, to carry out the intent behind the legislation or to allow regulated parties to get the upper hand. Discretion not to enforce is most damaging when it is unevenly exercised from case to case.

. . . .

Whenever an officer properly applies the law to a private party, he is enforcing the law. And, strangely, any officer having such power to enforce almost always (legally or illegally) has discretionary power not to enforce. Even if a statute provides with clarity and force that the officer "shall" or "must" enforce, or that he has a "duty" to enforce, still the vital practical fact usually is that the officer may exercise a discretion not to enforce. Furthermore, whether the failure to enforce is legal or illegal may often be of no consequence because of lack of authority elsewhere in the system to compel the officer to perform his mandatory duty to enforce. . . .

. . . .

But why should we be concerned with the negative power, the power not to enforce? . . . Discretionary power not to enforce is the power to discriminate.

. . . .

On the question whether the police have a mandatory duty to enforce the law, the formality of the law (what the statutes say) is at one extreme and the reality of the law (what the officers do) is at the opposite extreme. Furthermore, neither of the two extremes has any effect upon the other. . . . Statutes are quite clear in requiring policemen to arrest for crimes committed in their presence. . . . The law is not what the statutes provide, because (a) police nullify the statutes by not arresting, and their superiors do not require them to arrest, (b) legislators who are informed take no action against police nullification of the full-enforcement statutes, and (c) legislators participate in the nullification by appropriating only enough for partial enforcement. No one would assert that police nullification of clear statutes is a good system, but anyone who examines the reality is forced to conclude that the effective law is the opposite of what the full enforcement statutes clearly provide.

Whether prosecutors, including those in regulatory agencies, have a mandatory enforcement duty is much more complex. A fact of considerable importance is the pervasive assumption that mandatory prosecution would be impossible. Even though the assumption is strongly dominant, it can be conclusively rebutted. Some discretion is inherent in finding facts and in interpreting law, but other discretion can be eliminated from most enforcement functions (though probably not all). A statute could provide that whenever a prosecutor finds that the evidence is enough to convict for a serious crime he has an enforceable legal obligation to bring the prosecution unless one of a dozen specified reasons for not prosecuting is also found. . . .

Even though compulsory prosecution is exceptional in the United States, we have a substantial amount of it, and American experience shows that it is a viable system. … [Some] statutes governing transportation agencies, including the Federal Aviation Act, allow compulsory prosecution: "If . . . there shall appear to be any reasonable ground for investigating the complaint, it shall be the duty of the administrator or the Board to investigate the matters complained of." . . . Under that provision, when a bus company complained of airline family fares, the Civil Aeronautics Board dismissed the complaint without a hearing, but the reviewing court emphasized the "duty" of the Board, held the dismissal reviewable, held that the statute did not vest "anything near absolute discretion in the Board," held that the APA . . . required the Board to state grounds for dismissal, and held that "standards for the Board’s exercise of discretion must exist." Trailways of New England, Inc. v. CAB, 412 F.2d 926, 931-32 (1^st Cir. 1969). . . .

. . . .

Most federal regulatory statutes are like the Federal Trade Commission Act in rejecting compulsory prosecution. For instance, the Labor Management Relations Act provides: "Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board . . . shall have power to issue . . . a complaint" . . . . The statute does not require the Board to issue a complaint; it merely grants power. The supreme court in a dictum has declared in unqualified terms that "the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint." Vaca v. Sipes, 386 U.S. 171, 182 (1967). …

Congress sometimes deliberately chooses mandatory enforcement. …

Statutes are rather common that say in some form that if an administrator finds a violation he "shall" enforce. Whether "shall" in such a contest means "may" often has to be answered on the basis of specific legislative history.

[p.21] In 1965, Frank Remington wrote, "The police should play a major role in fashioning and implementing a proper law enforcement policy for their community." Remington drew an analogy between the Federal Trade Commission, an administrative agency with the responsibility to develop enforcement policy, and local police departments, which have a similar responsibility. This was a radical departure from past thinking about policing. Legislatures and city councils made laws, and the police responsibility was to enforce them impartially. A generation of police had been reared on the idea that law enforcement was what they did: individuals broke the law, the police arrested them. The police job was just that simple.

Implicit in Remington’s proposal was an alternative view of the police as a de facto administrative agency of city government whose work was characterized by repeated use of discretionary judgment. This discretion existed not only at executive levels but also at every level of the police organization, especially with the practicing police officer. Remington’s views were based on research he directed during the late 1950s, specifically the American Bar Foundation (ABF) Survey of Criminal Justice.

. . . .

[p.22] . . . In some respects, the new direction was an outgrowth of a serendipitous mix of the University of Wisconsin Law School’s "law in action" tradition as embodied by Remington and the Chicago School of Sociology’s tradition of field observation as represented by [Lloyd] Ohlin, a Ph.D. from the University of Chicago.

Ohlin notes that Remington, the first staff director of the study, "decided from the outset that the ABF survey would be different from earlier studies, much less concerned with official summary statistics and more concerned with the analysis of the criminal justice system in daily operation." In other words, the survey would study law as it operated rather than law as it was found in the books and, as a consequence, would rely heavily on observational data of low-level decisionmaking. . . .

The study focused on the line personnel in criminal justice agencies – police, prosecutors, judges, and corrections officers – conducting their routine work. Conventional thinking was turned on its head:

. . . .

[p.23] Reflecting on these findings, Kenneth Culp Davis, emphasizing the central role of police in the justice process, estimated that about half of the discretionary decisions made by criminal justice agencies were made by police. He added: "The police are among the most important policymakers of our entire society. And they make far more discretionary determinations in individual cases than any other class of administrators; I know of no close second."

. . . Not surprisingly, study after study confirmed the ABF findings: police work is complicated, a small portion of police time is spent on criminal matters, and police use discretion throughout their work.

. . . Some researchers focused on the abuses of authority that were reported in the survey’s findings. A few advocated eliminating police discretion altogether, at least in the decision to arrest. Joseph Goldstein stated this point of view most strongly.

Eliminating police discretion completely, even in the decision not to arrest, has always been a minority view. . . .

. . . .

[p.25] Other scholars have seen police discretion in terms that have differed from those of Joseph Goldstein. Frank Remington, Herman Goldstein, and James Q. Wilson, among others, were aware of the possibilities of abuse but understood both the inevitability of discretion and the inherent opportunities for problem solving it offered police and other criminal justice agencies. . . . The issue was to eliminate unnecessary discretion and enhance and shape necessary discretion.

During the mid-1960s, about the same time the American Bar Foundation’s Survey of Criminal Justice reports were first published, President Lyndon Johnson crated the Commission on Law Enforcement and Administration of Justice, his answer to Barry Goldwater’s challenges about crime during the 1964 presidential race. The Commission was set up to study crime and society’s response to it. Its findings, as presented in its report entitled The challenge of Crime in a Free Society, have shaped criminal justice thinking during the past 35 years.

. . . .

On balance, system improvement won the day in the Commission’s report. Relations with the community had to be improved and better personnel had to be recruited, yet the basic policing paradigm went largely unchallenged: police business was to ride around in cars and respond to calls for service. Police in the 1960s, who were insular and suspicious of outsiders, especially the liberal academics who staffed the Commission, nonetheless found their hand had been strengthened. . . .

[p.26] Nonetheless, minor themes in the Commission’s report pointed to the impact of the ABF efforts in its call for guidelines for controlling police discretion:

The truly remarkable outcome of the President’s Commission can be found in its companion report, Task Force Report: The Police. Chapter 2, which was authored by Frank Remington and Herman Goldstein, remains the definitive source on police policymaking and structuring discretion. . . . Remington and Goldstein wrote:

. . . .

For the most part, outsiders to policing were the first to pick up on Remington and Goldstein’s line of thought and advocate the development of strong guidelines similar to those used by administrative agencies. . . .

. . . .

[p.28] Academics, scholars, and lawyers might want police to develop guidelines, but the insularity of police and their reluctance during the 1950s, 1960s, and much of the 1970s to allow any outsider to get involved in the business of policing doomed efforts [to write standards for the exercise of police discretion] such as the Caplan and Krantz projects.

. . . .

Nicholas Colabella, J.

[*880] OPINION OF THE COURT

[**953] Defendant is charged with driving while intoxicated under Vehicle and Traffic Law § 1192 (2) and (3) in the Village [***2] Court of the Village of Scarsdale, New York. These crimes allegedly occurred on or about October 5, 1984. Defendant now moves by order to show cause in this court for removal of the pending charges from the Village Court of the Village of Scarsdale, New York, to the Town Court of the Town of Eastchester, New York, pursuant to CPL 170.15, or, in the alternative, that the defendant be prosecuted by indictment in the County Court of Westchester pursuant to CPL 170.25. For the reasons stated in this court's decision in People v Tamboia (Sup Ct, Westchester County, index No. 84-9309), the motion to remove and transfer the instant case from the Village Court of the Village of Scarsdale to the Town Court of the Town of Eastchester is granted.

. . . .

Additionally, this court makes the following observations in respect to the instant case and cases similar thereto. The superior courts in this county have split in respect to the relief requested herein. In addition, the inferior courts in this [***3] county [*881] have split in respect to the disposition of driving while intoxicated charges.

The question of the judiciary's role in the plea bargaining process is brought into play with the instant fact pattern. CPL article 220 * permits a defendant to plead guilty to a lesser charge "with both the permission of the court and the consent of the people". (CPL 220.10 [3].) There can be no question that a court can reject a plea to a lesser count but such rejection should be supported by the facts and by the law. A blanket policy as enunciated by the lower court Judge in this case draws into question the propriety of a court's categorical rejection of proffered pleas which both the prosecutor and the defendant are willing to enter, a fortiori, when the prosecutor offers the reduced plea in the first instance.

The judicial role in plea bargaining is that of overseeing and supervising the delicate balance of [***4] public and private [**954] interests. The court is to act as an impartial referee and not as an advocate. (People v Cruz, 100 AD2d 518 [1984].) This posture keeps the court within the scope of the separation of powers doctrine, under which the executive branch, represented by the prosecutor, has the primary responsibility for determining which violations of the law shall be prosecuted. (People v Selikoff, 35 NY2d 227 [1974].)

The dual consent provisions of CPL article 220 permit a court to fulfill its role. It protects the integrity of the plea bargaining process from the potential for corruption caused by off-the-record promises, representations, and the like. As a result thereof, it protects a defendant's rights by permitting judicial inquiry into the voluntariness of the plea. It is a necessary salutary check against the danger of abuse in a highly sensitive area of the administration of criminal justice. (People v Selikoff, supra.) The court's permission is also required to protect the public interests. For this purpose, a court may reject a plea that is excessively lenient and which deprives it of its sentencing powers. It must be noted that decisions [***5] in respect to what charges are to be brought against a defendant are primarily the function of the executive, that is, the District Attorney. This power is balanced by the judiciary, in whom exclusive control over sentencing is vested. The struggle to maintain a balance between these two overlapping powers has received much attention. It will suffice here to note that neither function may be exercised so as to undermine or unduly impair the other. (People v Selikoff, supra.)

[*882] The United States Supreme Court has recognized plea bargaining as both an essential and desirable part of the criminal justice system. (Santobello v New York, 404 U.S. 257, 261 [1971].) The benefits of plea bargaining are obvious: the relief of court congestion, alleviation of the risks and uncertainties of trial, and its information gathering value.

Plea bargaining, which is an exercise of prosecutorial and judicial discretion, enables sentences to be tailored to both the offense and the offender. A Judge who announces that her future actions will be dictated by policy fails to exercise any discretion and makes no allowance for this fundamental precept of our system of justice. In [***6] essence, a Judge who announces a firm policy waives the benefits of plea bargaining arbitrarily, and without deliberation. She renders CPL article 220 meaningless. This is clearly contrary to the legislative intent in respect to drunk driving cases. It is fundamental that a Judge should not replace her judgment for that of our Legislature, regardless of the "propriety, wisdom, necessity, adequacy, efficacy, utility, desirability [or] expediency * * * of [that] legislation". (20 NY Jur 2d, Constitutional Law, § 72.)

The policy of rejecting pleas in driving while intoxicated cases is an improper exercise of judicial discretion. The categorical rejection of certain types of pleas is by its nature an impermissible infringement on the prosecutorial function. It is not within the court's inherent power to instruct the prosecutor regarding his plea bargaining posture. An established policy has precisely this effect. It renders prosecutorial discretion with regard to the type of plea involved meaningless thus forcing the prosecutor to revise his procedures to conform with the court's wishes. An announced policy also runs contrary to the purposes of plea bargaining. A legitimate [***7] goal of a prosecutor's charging decision is to avoid the stigma of a particular conviction to a particular defendant. The prosecutor, it should be noted, is in the best position to determine whether resources should be devoted to trials of drunk driving cases or elsewhere. A blanket policy of rejecting these pleas obviates both the need for prosecutorial discretion and the goal of individualized sentences and justice.

Moreover, notwithstanding the importance of keeping drunk drivers off the road, the Legislature has not deemed it appropriate to prevent plea bargaining in [**955] driving while intoxicated cases. The reason for this is obvious. The Legislature has deemed it undesirable and not in the public's best interests to impose across-the-board restrictions on plea bargaining. (1975 NY Legis Ann, at 479; 1976 NY Legis Ann, at 395 [rigid plea [*883] bargaining restrictions on all class A, B and C felonies criticized for unduly restricting the discretion of the court and the prosecutor, which is necessary if each case is to be judged on its individual merits and injustices are to be avoided].)

The legislative response to the problem of drunk driving has been to [***8] increase the penalties for driving while intoxicated and to require that a person charged under Vehicle and Traffic Law § 1192 (2), (3) or (4) must at least plead guilty to subdivision (1). Section 1196 specifically states that a driver may be convicted of subdivisions (1), (2) or (3) notwithstanding that he is charged with a violation of Vehicle and Traffic Law § 1192 (2) or (3) and regardless of whether or not such conviction is based on a plea of guilty. Thus, by forbidding plea bargaining in driving while intoxicated cases, then, the court is not only interfering with the function of the prosecutor but is also invading the province of the Legislature.

The announced policy of the local court Judge also runs afoul of the Code of Judicial Conduct adopted by the New York State Bar Association, effective March 3, 1973. (For rules governing judicial conduct see, Rules of State Commn on Judicial Conduct, 22 NYCRR 7000.1 et seq.; also, Edwards, Commentary on Judicial Ethics, 38 Fordham L Rev 259.)

The Code of Judicial Conduct, Canon 3 (A) (1) requires that a judge be "unswayed by partisan interests, public clamor, or fear of criticism." This section is particularly relevant [***9] because drunk driving cases have received much publicity in recent times and there is no doubt tremendous pressure placed upon judges in the courts to come down hard on drunk drivers. The obvious way for a judge to respond to this public clamor is for her to devise and make a public announcement of a fixed policy of refusing to allow plea bargaining in driving while intoxicated cases.

Such a so-called announced policy also violates Code of Judicial Conduct, Canon 3 (A) (6) which states, inter alia, "A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court" (emphasis added).

It is obvious that the local court Justice in the instant case by announcing its "policy" is making a "public comment about a pending or impending proceeding in [her] court".

[*884] The Code of Judicial Conduct is further violated when an "announced policy" renders the [***10] Judge disqualified where his or her impartiality might reasonably be questioned. In this respect the language tracks that contained in 28 USC § 144 which governs, generally, the conduct of Judges in the Federal courts. Federal Judges have been disqualified where they have made pretrial comments or have indicated an announced policy indicating a fixed view as to proper punishment for a particular type of crime or particular class of offenders.

Where, for example, a Judge announced that he felt a duty to pressure conscientious objectors into submitting to induction and that he had a uniform policy of imposing a 30-month sentence in such cases, he erred in refusing to recuse himself from the trial of a case on the failure of a defendant to submit to induction. Such a policy gives support to the charge of a bent mind that could prevent an impartial conduct of the trial. (United States v Townsend, 478 F2d 1072 [3d Cir 1973]; United States v Thompson, 483 F2d 527 [3d Cir 1973].)

1. Should the result be different if the prosecutor announced a policy of refusing to accept plea bargains in drunk driving cases? Or if the judge kept silent about a general policy, but uniformly rejected plea bargains in drunk driving cases as too lenient? Would either of the foregoing hypothetical actions be ethically suspect?

2. Prosecutorial discretion in plea bargaining may not be completely unfettered. Kurlander v. Davis, 103 Misc. 2d 919, 427 N.Y.S.2d 376 (1980), involved a charge of criminal trespass against two brothers who were apprehended inside a city-owned ice rink after it closed. The District Attorney offered to grant an Adjournment in Contemplation of Dismissal (ACD)--in effect, dropping the charges if the brothers kept out of trouble for a substantial time--if they would sign a waiver of civil liability agreeing that the police had reasonable grounds to arrest them, and that "the above arrest was not improper or illegal." The court rejected the DA's imposition of this condition:

The court also noted that the practice was ethically questionable under a provision of the ABA Code of Professional Responsibility prohibiting attorneys from threatening to present criminal charges in order to gain an advantage in a civil matter.

What result if, instead of the prosecutor insisting on the waiver of liability, the brothers' attorney phoned the prosecutor and said, "Look, there are vulnerabilities on both sides. You've got a strong case on the trespass, because they were caught inside the building after hours. We've got a strong case on assault and denial of civil rights, because we have witnesses who will testify that the arresting officers roughed these boys up unnecessarily, and refused to let them contact their parents or lawyer for more than 12 hours. But it would be pointless to push both of these cases through the courts. These guys got a little street justice, and they learned their lesson. They had a clean record before this incident. We'll sign a waiver of civil liability if you'll give us an ACD."

Mathilde C. Bersani, J.

[*848] OPINION OF THE COURT

. . . .

Defendants have made an omnibus motion, most of which has already been decided. The court reserved decision on motions for the following relief: (1) an order dismissing the accusatory instruments charging defendants with prostitution, on the ground that the defendants' right to equal protection under the Fourteenth Amendment to the United States Constitution and under section 11 of article I of the New York Constitution has been violated by the Syracuse police and Onondaga County District Attorney's discriminatory enforcement [*849] of article 230 of the Penal Law; (2) as an alternative to dismissal of the accusatory instrument, an order granting defendants an evidentiary hearing to determine whether or not they have been victims of unconstitutional [***5] selective enforcement of article 230 of the Penal Law; and (3) an order granting defendants discovery and inspection of statistical data relating to the arrest and prosecution of persons charged with violating sections 230.00 and 230.03 of the Penal Law (prostitution and patronizing a prostitute in the fourth degree, respectively) since September 1, 1978.

These motions arise from the following alleged facts. On November 15, 1979, defendant Sherry Nelson was arrested in the City of Syracuse for prostitution in that she allegedly offered to have sexual intercourse with a male for a fee. Defendant and the male drove off in his car, were shortly afterward stopped by the police who asked the male what he was doing with the girl. The male told them that defendant had offered him sex for a fee. The police then arrested the defendant for prostitution and asked her male "victim" (the term used in the police report) if he was willing to make a statement; he agreed. The male victim was not arrested or charged with patronising a prostitute.

On December 10, 1979, defendant Helen Prince was arrested for prostitution in that she allegedly approached a male sitting in his parked car outside [***6] a downtown bar and offered him sex for a fee. They then drove off to a house on the west side. By the time they arrived, the male had changed his mind and decided simply to drop the defendant off. As he drove away, he was stopped by the police, who had been following in a car, and was asked what he had been doing with the girl. The male "victim" (so described in the police report) told the police that he had been offered sex for a fee, and agreed to make a statement about it. The police then returned to the house, arrested the defendant, and charged her with prostitution. Her male victim was [**196] not arrested or charged with patronizing a prostitute.

In the landmark case of Yick Wo v Hopkins (118 U.S. 356, 373-374) the Supreme Court declared that a constitutional law could be unconstitutional in its enforcement: "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar cirscumstances, [*850] material to their rights, the denial of equal justice is still within the [***7] prohibition of the Constitution."

The test for unconstitutionally discriminatory enforcement of a law was clarified by the New York Court of Appeals in Matter of 303 West 42nd St. Corp. v Klein (46 NY2d 686, 693): "To invoke the right successfully, however, both the 'unequal hand' and the 'evil eye' requirements must be proven -- to wit, there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification".

To establish a violation of equal protection, then, one must show not only that the law is selectively enforced, but also that the selective enforcement is deliberately based upon an impermissible standard. In the cases before us, defendants argue that the law proscribing prostitution offenses (Penal Law, art 230) is selectively enforced by the Syracuse police and the Onondaga County District Attorney in that both routinely enforce section 230.00 against female prostitutes but not section 230.03 against their male patrons, and that this selective enforcement is deliberately based on an [***8] impermissible standard, namely sex or gender. Defendants further argue that sex is a suspect classification and, therefore, that discrimination on the basis of a suspect classification automatically triggers a strict scrutiny test, which requires the State to demonstrate a compelling need to make the discrimination it has made. *

Before dealing with the specific motions of the instant cases, we must address a threshold question. In seeking to show discriminatory [***9] enforcement of the law, may defendants combine patrons as well as prostitutes in the category of "others similarly situated"? In Matter of Dora P. (68 AD2d 719, 732), the Appellate Division, First Department, said no: "From this as a base, respondent argues that the 'unequal hand' and the 'evil eye' are demonstrated by the discrepancy, as shown by [*851] statistics, between the number of females and males prosecuted. The short answer to this claim is that respondent lumps together two separate crimes in order to obtain a favorable statistical base. That prostitution and patronizing a prostitute are discrete crimes is apparent when consideration is given to the separate acts necessary to effect their commission. Indeed, so different are the crimes considered that the Legislature by a statute which became effective September 1, 1978 (L 1978, ch 627), divided the crime of patronizing a prostitute into four separate degrees with penalties ranging from a fixed maximum term of three months to a maximum indeterminate [**197] sentence of seven years. Thus, to compare the number of prosecutions for prostitution with the number of prosecutions for patronizing a prostitute is [***10] to have recourse to the 'unequal hand' forbidden by Yick Wo (supra) and of which respondent so bitterly complains." As the above quotation shows, the court attached considerable significance to the fact that the crime of patronizing a prostitute was divided into four separate degrees. However, examination of the four statutes shows that they are differentiated, not on the basis of the conduct described, but on the basis of the participants' ages. For example, section 230.04 of the Penal Law reads as follows: "A person is guilty of patronizing a prostitute in the third degree when, being over twenty-one years of age, he patronizes a prostitute and the person patronized is less than seventeen years of age. Patronizing a prostitute in the third degree is a class A misdemeanor."

The court in Matter of Dora P. (supra) also based its conclusion on its consideration of the "separate acts necessary to effect their commission" but did not mention what those separate acts were. If we compare section 230.00 (prostitution) with section 230.02 (patronizing a prostitute; definitions), we find that the only significant difference in the proscribed behavior is that the prostitute sells [***11] sex and the patron buys it. Neither gender nor solicitation is a differentiating factor. Professor Hechtman in his Practice Commentary (McKinney's Cons Laws of NY, Book 39, Penal Law, § 230.03, p 173) refers to prostitution and patronizing as "reciprocal offenses." Changes in the Penal Law since 1964 indicate that the Legislature intended to establish parity in the sanctions imposed for prostitution and patronizing a prostitute. . . .

. . . .

Tussman and tenBroek in their article (The Equal Protection of the Laws, 37 Cal L Rev 341, 346) concluded that to find the test of similarity which determines the reasonableness of a classification, "we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law". Hechtman in his Practice Commentary (McKinney's Cons Laws of NY, Book 39, Penal Law, § 230.02, pp 171, 172) writes [***13] as follows: "The reasons that were most vigorously advanced for imposing criminal sanctions upon the patron were (1) that to penalize the prostitute alone is unjust, and (2) that the dual proscription should aid in the curtailment of prostitution and, to that extent, in the reduction of venereal disease also."

Thus, both sections 230.00 and 230.02 are intended to curtail prostitution by imposing sanctions against the patron as well as the [**198] prostitute, and thus it is reasonable to combine both in the category of "others similarly situated."

Turning now to the specific relief requested by the defendants, we deal first with the motion to dismiss the accusatory [*853] instruments. If defendants can establish that "conscious, intentional discrimination" exists, then they will be entitled to a dismissal of the prosecution as a matter of law (People v Utica Daw's Drug Co., 16 AD2d 12, 19). The burden of proof here is heavy partly because there is a presumption that the enforcement of the laws is undertaken in good faith and also because the authorities must be allowed latitude in making law enforcement decisions (for example, selective enforcement might occur because [***14] of limited manpower or other resources, or to test a statute or new regulation, or as an efficient way to deter potential transgressors, or because only serious violations are being prosecuted or those that occur in places where violations are very frequent) (Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686, 694, supra).

However, the scope of prosecutorial discretion is not unlimited. Though the burden is heavy, it is not insupportable. Recognizing that "law enforcement officials are unlikely to avow that their intent was to practice constitutionally proscribed discrimination", the Court of Appeals has indicated that proof of discriminatory intent may appear "from a convincing showing of a grossly disproportionate incidence of nonenforcement against others similarly situated" (Matter of 303 West 42nd St. Corp. v Klein, supra, at p 695).

The court finds that, at present, defendants have not presented evidence sufficient to prove conscious, intentional discrimination on the part of the Onondaga County District Attorney or the Syracuse police and, therefore, denies as premature, defendants' motion for an order dismissing the accusatory instruments, but denies it [***15] without prejudice.

Next, we consider whether defendants are entitled to an evidentiary hearing. The Court of Appeals has held that "an evidentiary hearing before a judicial tribunal is mandated whenever one asserting such a violation can demonstrate a reasonable probability of success on the merits of his claim" (Matter of 303 West 42nd St. Corp. v Klein, supra, at p 690). Again the court finds that at the present time defendants have not presented sufficient evidence to demonstrate a reasonable probability of success on the merits of their claim, and, therefore, denies as premature defendants' motion for an order granting an evidentiary hearing, but without prejudice.

Finally, we deal with defendant's motion for discovery and inspection of statistical data relating to the arrest and prosecution of persons of prostitution-related offenses. The People [*854] contend that such statistical data are not within the proper scope of either a bill of particulars or a discovery motion, that they are not contained in the litany of property discoverable upon demand under CPL 240.20 or upon court order under CPL 240.40, that they are not within the prosecutor's possession, custody [***16] or control, that they are not Brady material because they are not relevant to defendants' guilt or innocence of the crimes with which they are charged, and that they are otherwise obtainable by a subpoena duces tecum.

The court agrees with the People. Defendants' request for statistical data does not fit under the categories of discoverable material described in CPL 240.20 and 240.40. Moreover, they are not discoverable on the authority of Brady v Maryland (373 U.S. 83 because they do not address the guilt or innocence of the defendants. The Appellate Division, Fourth Department, has stated that the "claim of discriminatory enforcement should not be treated as a defense to the criminal charge * * * but should be treated as an application to the court for a dismissal or quashing of the prosecution upon constitutional [**199] grounds" (People v Utica Daw's Drug Co., 16 AD2d 12, 15-16). The court, therefore, denies defendants' motion for discovery and inspection of statistical data relating to the arrest and prosecution of persons for prostitution-related offenses.

Although defendants may not obtain the statistical data through the criminal discovery rules, they are [***17] not without recourse. The Freedom of Information Law (Public Officers Law, art 6, § § 85-90) would seem to authorize disclosure of such material. If defendants should seek and obtain the data under the Freedom of Information Law, the court will allow them to renew their motions for an evidentiary hearing and for dismissal of the accusatory instruments, should they decide that such motions would be appropriate.

. . .

1. Is the principal case distinguishable from a prosecutor's decision to let a drug buyer "walk" on a possession charge if he'll testify against the dealer? Or a decision to drop charges against one co-conspirator in a fraud scheme if he'll testify against his partner?

HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. CHANEY ET AL.
SUPREME COURT OF THE UNITED STATES
470 U.S. 821; 105 S. Ct. 1649
March 20, 1985, Decided

[*823] [**1651] JUSTICE REHNQUIST delivered the opinion of the Court. This case presents the question [***5] of the extent to which a decision of an administrative agency to exercise its "discretion" not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act, 5 U. S. C. § 501 et seq. (APA). Respondents are several prison inmates convicted of capital offenses and sentenced to death by lethal injection of drugs. They petitioned the Food and Drug Administration (FDA), alleging that under the circumstances the use of these drugs for capital punishment violated the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq. (FDCA), and requesting that the FDA take various enforcement actions to prevent these violations. The FDA refused their request. We review here a decision of the Court of Appeals for the District of Columbia Circuit, which held the FDA's refusal to take enforcement actions both reviewable and an abuse of discretion, and remanded the case with directions that the agency be required "to fulfill its statutory function." 231 U. S. App. D. C. 136, 153, 718 F.2d 1174, 1191 (1983).

I

Respondents have been sentenced to death by lethal injection of drugs under [***6] the laws of the States of Oklahoma and Texas. Those States, and several others, have recently adopted this method for carrying out the capital sentence. Respondents first petitioned the FDA, claiming that the drugs used by the States for this purpose, although approved by the FDA for the medical purposes stated on their labels, were not approved for use in human executions. They alleged that the drugs had not been tested for the purpose for which they were to be used, and that, given that the drugs would likely be administered by untrained personnel, it was also likely that the drugs would not induce the quick and painless death intended. They urged that use of these drugs for human execution was the "unapproved use of an approved drug" and [*824] constituted a violation of the Act's prohibitions against "misbranding." n1 They also suggested that the FDCA's requirements for approval of "new drugs" applied, since these drugs were now being used for a new [**1652] purpose. Accordingly, respondents claimed that the FDA was required to approve the drugs as "safe and effective" for human execution before they could be distributed in interstate commerce. See 21 U. [***7] S. C. § 355. They therefore requested the FDA to take various investigatory and enforcement actions to prevent these perceived violations; they requested the FDA to affix warnings to the labels of all the drugs stating that they were unapproved and unsafe for human execution, to send statements to the drug manufacturers and prison administrators stating that the drugs should not be so used, and to adopt procedures for seizing the drugs from state prisons and to recommend the prosecution of all those in the chain of distribution who knowingly distribute or purchase the drugs with intent to use them for human execution.

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n1 See 21 U. S. C. § 352(f): "A drug or device shall be deemed to be misbranded . . . [unless] its labeling bears (1) adequate directions for use. . . ." 
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The FDA Commissioner responded, refusing to take the requested actions. The Commissioner first detailed his disagreement with respondents' understanding of the scope of FDA jurisdiction over the unapproved use of approved drugs for human execution, [***8] concluding that FDA jurisdiction in the area was generally unclear but in any event should not be exercised to interfere with this particular aspect of state criminal justice systems. He went on to state:

"Were FDA clearly to have jurisdiction in the area, moreover, we believe we would be authorized to decline to exercise it under our inherent discretion to decline to pursue certain enforcement matters. The unapproved use of approved drugs is an area in which the case law is far from uniform. Generally, enforcement proceedings in this area are initiated only when there is a serious [*825] danger to the public health or a blatant scheme to defraud. We cannot conclude that those dangers are present under State lethal injection laws, which are duly authorized statutory enactments in furtherance of proper State functions. . . ."

Respondents then filed the instant suit in the United States District Court for the District of Columbia, claiming the same violations of the FDCA and asking that the FDA be required to take the same enforcement actions requested in the prior petition. n2 Jurisdiction was grounded in the general federal-question jurisdiction statute, 28 U. S. [***9] C. § 1331, and review of the agency action was sought under the judicial review provisions of the APA, 5 U. S. C. § § 701-706. The District Court granted summary judgment for petitioner. It began with the proposition that "decisions of executive departments and agencies to refrain from instituting investigative and enforcement proceedings are essentially unreviewable by the courts." Chaney v. Schweiker, Civ. No. 81-2265 (DC, Aug. 30, 1982), App. to Pet. for Cert. 74a (emphasis in original). The court then cited case law stating that nothing in the FDCA indicated an intent to circumscribe the FDA's enforcement discretion or to make it reviewable.

A divided panel of the Court of Appeals for the District of Columbia Circuit reversed. It first discussed this Court's opinions which have held that there is a general presumption that all agency decisions are reviewable under the APA, at least to assess whether the actions were [**1653] "arbitrary, capricious, or an abuse of discretion." . . . It noted that the APA, 5 U. S. C. § 701, only precludes judicial review of final agency action -- including refusals to act, see 5 U. S. C. § 551(13) -- when review is precluded by statute, or "committed to agency discretion by law." . . . [T]he court held that the "committed to agency discretion by law" exception of § 701(a)(2) should be invoked only where the substantive statute left the courts with "no law to apply." . . .

The court found "law to apply" in the form of a FDA policy statement which indicated that the agency was "obligated" to investigate the unapproved use of an approved drug when such use became "widespread" or "[endangered] the public health." Id., at 148, 718 F.2d, at 1186 (citing 37 Fed. Reg. 16504 (1972)). The court held that this policy statement constituted a "rule" and was considered binding by the FDA. Given the policy statement indicating that the FDA should take enforcement action in this area, and the strong presumption [***12] that all agency action is subject to judicial review, the court concluded that review of the agency's refusal was not foreclosed. It then proceeded to assess whether the agency's decision not to act was "arbitrary, capricious, or an abuse of discretion." Citing evidence that the FDA assumed [*827] jurisdiction over drugs used to put animals to sleep n3 and the unapproved uses of drugs on prisoners in clinical experiments, the court found that the FDA's refusal, for the reasons given, was irrational, and that respondents' evidence that use of the drugs could lead to a cruel and protracted death was entitled to more searching consideration. The court therefore remanded the case to the District Court, to order the FDA "to fulfill its statutory function."

. . . We granted certiorari to review the implausible result that the FDA is required to exercise its enforcement power to ensure that States only use drugs that are "safe and effective" for human execution. 467 U.S. 1251 (1984). We reverse.

. . . For us, this case turns on the important question of the extent to which determinations by the FDA not to exercise its enforcement authority over the use of drugs in interstate commerce may be judicially reviewed. That decision in turn involves the construction of two separate but necessarily interrelated statutes, the APA and the FDCA.

The APA's comprehensive provisions for judicial review of "agency actions" are contained in 5 U. S. C. § § 701-706. Any person "adversely affected or aggrieved" by agency action, see § 702, including a "failure to act," is entitled to "judicial review thereof," as long as the action is a "final agency action for which there is no other adequate remedy in a court," see § 704. The standards to be applied on review are governed by the provisions of § 706. But before any review at all may be had, a party [***15] must first clear the hurdle of § 701(a). That section provides that the chapter on judicial review "applies, according to the provisions thereof, except to the extent that -- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." Petitioner urges that the decision of the FDA to refuse enforcement is an action "committed to agency discretion by law" under § 701(a)(2).

This Court has not had occasion to interpret this second exception in § 701(a) in any great detail. On its face, the section does not obviously lend itself to any particular construction; indeed, one might wonder what difference exists between § (a)(1) and § (a)(2). The former section seems easy in application; it requires construction of the substantive statute involved to determine whether Congress intended to preclude judicial review of certain decisions. That is the approach taken with respect to § (a)(1) in cases such as Southern [*829] R. Co. v. Seaboard Allied Milling Corp, 442 U.S. 444 (1979), and Dunlop v. Bachowski, 421 U.S., at 567. But one could read the language "committed to agency discretion [***16] by law" in § (a)(2) to require a similar inquiry. In addition, commentators have pointed out that construction of § (a)(2) is further complicated by the tension between a literal reading of § (a)(2), which exempts from judicial review those decisions committed to agency "discretion," and the primary scope of review prescribed by § 706(2)(A) -- whether the agency's action was "arbitrary, capricious, or an abuse of discretion." How is it, they ask, that an action committed to agency discretion can be unreviewable and yet courts still can review agency actions for abuse of that discretion? See 5 K. Davis, Administrative Law § 28:6 (1984) (hereafter Davis); Berger, Administrative Arbitrariness and Judicial Review, 65 Colum. L. Rev. 55, 58 (1965). The APA's legislative history provides little help on this score. Mindful, however, of the common-sense principle of statutory construction that sections of a statute generally should be read "to give effect, if possible, to every clause . . . ," see United States v. Menasche, 348 U.S. 528, 538-539 (1955), we think there is a proper construction of § (a)(2) which satisfies each of these concerns. [***17]

This Court first discussed § (a)(2) in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). That case dealt with the Secretary of Transportation's approval of the building of an interstate highway through a park in Memphis, Tennessee. The relevant federal statute provided that the Secretary "shall not approve" any program or project using public parkland unless the Secretary first determined that no feasible alternatives were available. Id., at 411. Interested citizens challenged the Secretary's approval under the APA, arguing that he had not satisfied the substantive [**1655] statute's requirements. This Court first addressed the "threshold question" of whether the agency's action was at all reviewable. After setting out the language of § 701(a), the Court stated:

[*830] "In this case, there is no indication that Congress sought to prohibit judicial review and there is most certainly no 'showing of "clear and convincing evidence" of a . . . legislative intent' to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). . . .

Overton Park did not involve an agency's refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement steps generally involve [***20] precisely the opposite situation, and in that situation we think the presumption is that judicial review is not available. This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. See United States v. Batchelder, 442 U.S. 114, 123-124 (1979); United States v. Nixon, 418 U.S. 683, 693 (1974); Vaca v. Sipes, 386 U.S. 171, 182 (1967); Confiscation Cases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.

The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the [**1656] agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency [***21] is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved [*832] in the proper ordering of its priorities. Similar concerns animate the principles of administrative law that courts generally will defer to an agency's construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute. . . .

In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual's liberty or property rights, and thus does not infringe upon areas that courts often are called upon to [***22] protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers. See, e. g., FTC v. Klesner, 280 U.S. 19 (1929). Finally, we recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict -- a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, § 3. We of course only list the above concerns to facilitate understanding of our conclusion that an agency's decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2). For good reasons, such a decision has traditionally been "committed to agency discretion," and we believe that the Congress enacting the APA did not intend to alter that tradition. Cf. 5 Davis § 28:5 (APA [***23] did not significantly alter the "common law" of judicial review of agency action). In so stating, we emphasize that the decision is only presumptively unreviewable; the presumption [*833] may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. n4 Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency's exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency's power to discriminate among issues or cases it will pursue. . . .

. . . .

IV We . . . conclude that the presumption that agency decisions not to institute proceedings are unreviewable under 5 U. S. C. § 701(a)(2) is not overcome by the enforcement provisions of the FDCA. The FDA's decision not to take the [*838] enforcement actions requested by respondents is therefore not subject to judicial review under the APA. The general exception to reviewability provided by § 701(a)(2) for action "committed to agency discretion" remains a narrow one, see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise. In so holding, we essentially leave to Congress, and not to the courts, the decision as to whether an agency's refusal to institute proceedings should be judicially reviewable. No colorable claim is made in this case that the agency's refusal to institute proceedings violated any constitutional rights of respondents, and we do not address the issue that would be raised in such a case. Cf. Johnson v. Robison, 415 U.S. 361, 366 (1974); [***32] Yick Wo v. Hopkins, 118 U.S. 356, 372-374 (1886). The fact that the drugs involved in this case are ultimately to be used in imposing the death penalty must not lead this Court or other courts to import profound differences of opinion over the meaning of the Eighth Amendment to the United States Constitution into the domain of administrative law.

The judgment of the Court of Appeals is

Reversed.

[Concurring opinion omitted]

Environmental Law in New York

Volume 10, No. 5, May 1999

. . . .

A good compliance monitoring effort will provide information about who is violating the law. An enforcement response policy will instruct government personnel on how to respond to detected violations in a timely and appropriate manner.

Timeliness is very important. A prompt enforcement response, even of modest severity, can often be more effective in providing a deterrent to future violations than a long delayed response of greater severity.

In determining what is an appropriate response to a violation, it is first necessary to assess the range of sanctions which the legislature has made available. For most of the environmental programs administered by the Environmental Protection Agency … , a wide range of enforcement tools is at EPA’s disposal:

. . . .

A. Enforcement Response Selection

In selecting among the several enforcement options listed above, EPA will evaluate the severity and duration of the violation, and the past compliance history of the violator. For example, an informal response may be deemed appropriate for one who, for the first time, commits a relatively minor or non-substantive violation, particularly if the regulatory requirement is new. Most violations will, however, be the subject of administrative enforcement proceedings (where the law makes these available). A repeat violator will likely be dealt with through a civil judicial lawsuit. And the most serious violations (including serious repeat violations) will be handled as criminal prosecutions.

For many of its programs, EPA has issued guidance which assists Regional offices in determining the appropriate enforcement response to a given violation.

B. Settlement of Enforcement Cases

As is true in other areas of the law, most EPA enforcement cases are settled before trial or hearing. …

EPA uses comparatively elaborate penalty policies to determine what penalty it should seek in settling a case, and also what its "bottom line" will be in settlement discussions with a violator. EPA also uses these policies during trial to demonstrate to a court why the penalty they seek is appropriate. To further induce settlement, however, EPA will seek a higher penalty from a court in litigation than that for which they would be willing to settle.

. . . .

C. Identifying the Appropriate Penalty

EPA believes that most violations serious enough to warrant a formal enforcement response action should result in the imposition of a monetary penalty. Such penalties are among the most effective deterrents to future violations, and can eliminate the economic benefit which may accrue to a violator as a result of his noncompliance.

… The same considerations which inform the selection of an enforcement mechanism are applied to the question of penalty size: severity and duration of the violation, and past compliance record.

The violator’s ability to pay is also a factor to be considered in setting the size of a penalty. … [I]n rare cases, the government may conclude, based upon the compliance history and other characteristics of a business, that it is incapable of operating in compliance with environmental rules. In such a case the government may attempt to shut the business down, and prevent the operator from reopening elsewhere. EPA has developed computerized economic models to evaluate a violator’s ability to pay a given penalty (and/or a given expenditure associated with the costs of coming into compliance).

For many programs, EPA has developed penalty matrixes which specify the particular penalty amount for a particular violation. Sometimes the penalty matrix will specify an appropriate range for the fine associated with a given violation; from within this range, the penalty selected is based on the size of the business and the seriousness of the violation.

Penalty matrixes are typically used for violations where there is not a well defined cost associated with coming into compliance. Examples of such violations include failure to file required reports on chemical usage and discharges (under EPCRA, the Emergency Planning and community Right to Know Act); … or failure to properly mark and keep records about polychlorinated biphenyl (PCB)-containing equipment (under TSCA, the toxic Substances Control Act).

In cases where the costs of coming into compliance are calculable (and significant), EPA will typically not employ a penalty matrix. Instead, the Agency will impose a fine calculated to recover the economic benefit a violator enjoyed as a result of his violation, plus an additional "gravity component" based on the severity of the violation and other similar factors.

Economic benefit accrues to a violator when a capital or operating expenditure associated with coming into compliance is delayed beyond the required compliance date.

For example: by delaying compliance, a company postpones for one year a capital expenditure of $1 million for pollution control equipment. From an economic perspective the company has had $1 million to use for that one year in some profit-making investment. The return on such a hypothetical investment can be estimated using accepted economic models. In addition, this company will also have avoided entirely the costs of operating the pollution control equipment during that one year period.

. . . .

EPA has developed computerized models for use by its enforcement staff to calculate such economic benefits. These models employ readily available data inputs such as the deferred capital and operating costs; the duration of the noncompliance; the current inflation, interest and discount rates; and the manner in which the violator will finance the compliance costs (e.g., through loans or from equity).

. . . .

E. Determining the Gravity Component of the Penalty

Recovering the economic benefits from a violator is, however, usually not enough. If only the economic benefit is recovered, the violator is merely placed in the position he would have been had he complied on time. An additional penalty amount, called the "gravity component," is designed to provide the deterrence – that is, to "make it hurt." In determining the size of the gravity component, EPA will evaluate mitigating or aggravating circumstances such as the seriousness of the violation; its impact on the environment; the violator’s cooperativeness upon detection; the speed with which he comes into compliance; and past compliance history.

Unless the violator is demonstrably unable to pay, the economic benefit portion represents the minimum penalty EPA will insist on recovering, with these other factors raising the demand to a greater or lesser extent.

F. Supplemental Environmental Projects (SEPs)

EPA has a policy which allows a violator to reduce the amount of penalty he will have to pay in exchange for a binding commitment to carry out a "supplemental environmental project" or SEP. This is an environmentally beneficial project, related in some way to the underlying violation, which goes above and beyond what the law already requires.

Most SEPs involve pollution prevention projects, in which the violator reduces its discharge of pollutants beyond the required level. This may be done by adding more pollution control equipment or – preferably – changing the materials used in a manufacturing process or even the process itself so that less pollution is generated in the first place. Another type of SEP often used is a commitment to carrying out a corporate environmental auditing program. …

EPA calculates the after-tax cost to the violator of a proposed SEP. That cost can then be used to offset the gravity component of the penalty. (The economic benefit portion cannot usually be offset by SEPs).

. . . .

G. Mitigation of Penalties to Encourage Self-Policing

Nevertheless, under some circumstances EPA will agree to reduce or even eliminate the penalty demand it would usually make, in order to create an incentive for regulated entities to engage in self-policing through environmental audits or environmental compliance management programs.

Environmental audits are a structured form of self-policing which, as noted earlier, is essential for the overall success of our environmental program. through an environmental audit a regulated entity can periodically and systematically evaluate its own compliance with environmental rules. Analogous to an internal financial audit, it is a way for management to ensure that effective environmental compliance practices have been developed and implemented. Audits may be performed by specialized employees or by independent outside firms.

. . . .

How does EPA know if enforcement actually works? does it achieve its goals of general and specific deterrence? . . .

. . . Almost by definition, it is difficult to prove a deterrence effect: how do you demonstrate that somebody didn’t commit a crime, or violate a civil law, because of the deterrence effect of governmental enforcement?

There are, however, many things EPA can do to assess the efficacy of an enforcement program. Under the Government Performance and Results Act (GPRA), all federal agencies have been directed by Congress to identify performance measures against which the success of their efforts can be better judged. EPA has responded by developing a suite of National Performance Measures for the Enforcement Program. These include "output" and, perhaps more importantly, "outcome" measures, as well as broader indicators of success. Output measures gauge activity levels: how many inspections, how many enforcement actions initiated (and what kind), how many cases resolved, etc. Outcome measures are intended to describe the results of the enforcement cases: how many pounds of what sorts of pollutants were reduced because of these enforcement actions? . . .

A more powerful indicator to measure the success of an enforcement program is thought to be the compliance rate. If you can identify the regulated universe, and accurately describe the overall rate of compliance within that universe at a given moment, and chart changes in that rate over a stretch of time, you may be able to draw some conclusions about the effect of more or less enforcement on that rate. (Even this is questionable, since there may be many other variables influencing the compliance rate.) Establishing a widely accepted and generally applicable methodology for determining compliance rates has, however, proven to be very difficult. The debate usually centers on what is a meaningful numerator and denominator for the compliance rate equation. Even assuming that this question can be satisfactorily answered, there is also an obvious need for complete, accurate and timely compliance data – something which EPA and the states cannot currently assure. . . .