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1. Article: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute, 103 Minn. L. Rev. 844
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DAVID SCHOEN
Article: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute
Reporter
103 Minn. L. Rev. 844 *
December, 2018
Length: 23570 words
Author: Darryl K. Brown*
+ O. M. Vicars Professor of Law and Barron F. Black Research Professor of Law, University of Virginia School of Law.
Copyright © 2018 by Darryl K. Brown.
Text
[*844]
INTRODUCTION
In light of concerns about mass incarceration and excessive search practices by police, 1 underenforcement of criminal law is
not the first problem that springs to mind for American criminal justice. But in fact, some of the prominent contemporary
complaints about U.S. criminal justice, as well as some longstanding ones, object to underenforcement of criminal law. Two of
the most notable categories are failures to prosecute in cases of unjustified police violence, especially against nonwhite victims,
and in cases of sexual assaults. Lower-profile examples abound as well, as do historical examples.
Given the nation's history, underenforcement problems are often related to race. Insufficient law enforcement attention to
crimes in minority neighborhoods, for example, has been criticized as depriving African American victims and communities of
their fair share of government protection from criminal harm. 2 In earlier eras, law enforcement inattention to, or wholesale
neglect [*845] of, white offenders' victimization of black victims - in lynchings, attacks on civil right activists, sexual assaults,
and other contexts - was often patent. 3 But the problem of unjustified underenforcement is not confined to these contexts, nor
to the United States. Failures to prosecute arise from a fundamental structural challenge faced by all criminal justice systems:
how to ensure unbiased, evenhanded enforcement practices - safeguards in favor of justified enforcement. This challenge gets
less attention than criminal procedure's central preoccupation of guarding against excessive or groundless criminal charges.
Concern about misuse of the state's prosecution authority rightly motivates much in criminal procedure, from search and
seizure rules 4 and judicial review of arrests 5 to evidence disclosure duties, 6 the right to counsel, 7 and standards of proof. 8
1
U.S. incarceration rates quintupled over the last forty years and are five to seven times higher than those in other advanced democracies.
See Floyd v. City of New York, 959 F. Supp. 2d 540, 572-602 (S.D.N.Y. 2013) (documenting and holding unconstitutional widespread stopand-frisk
practices by New York City police that disproportionately targeted non-white men); Michelle Alexander, The New Jim Crow: Mass
Incarceration in the Age of Colorblindness 6-9 (2010); World Prison Brief Data, Inst. for Crim. Pol'y Res. (2016),
http://www.prisonstudies.org/country/united-states-america (comparing national data on total prison population and incarceration rates and
reporting that the United States has the world's largest prison population at 2,217,947 inmates).
2
Randall Kennedy, Race, Crime, and the Law 29 (1997).
3
See, e.g., Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror 39, 48 (3d ed. 2017) (documenting
approximately 4000 lynchings in the years 1877-1950; about one percent resulted in a conviction for perpetrators).
4
See generally Wayne R. LaFave et al., Criminal Procedure 126-63, 512-49 (5th ed. 2009) (discussing search and seizure rules).
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103 Minn. L. Rev. 844, *845
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Structural responses to the state declining to use its enforcement authority are much fewer and less prominent. At least in
common law countries, enforcement decisions are the province of police and prosecutor discretion, and oversight of officials'
failures to enforce has been left almost wholly to the political process. Decisions to search, arrest, or charge face modest
judicial scrutiny on evidentiary grounds and - at the extreme margins - racial or [*846] ethnic bias. 9 Decisions not to arrest or
charge are virtually immune from judicial review or other nonpolitical oversight. 10 Like other common law jurisdictions, U.S.
justice systems have always rejected an approach long adopted in some civil law jurisdictions to prevent unjustified and
disparate nonenforcement - a rule of mandatory prosecution that restricts executive officials' discretion over arrest and charging
decisions. 11
A broader view, however, reveals that all criminal justice systems incorporate one or more strategies to address
underenforcement, which can be collectively described as redundant charging authority. All are to some degree familiar,
though they are not usually described in these terms or understood as serving this common purpose.
One approach is creation of two distinct enforcement agencies with overlapping or duplicative jurisdiction. This model is a
familiar safeguard against underenforcement of transnational crimes or crimes on the high seas; international criminal law
routinely grants nation-states coextensive, duplicative jurisdiction to enforce international or domestic criminal laws outside
their borders. International treaties on subjects such as public corruption, drug trafficking, and human trafficking 12 can be
understood as agreements to create enforcement redundancy among national criminal justice agencies to solve
underenforcement problems by particular states. 13 The same arrangement occurs domestically for enforcement of civil or
regulatory law when administrative agencies have overlapping, and thus redundant, [*847] jurisdiction over the same
regulated activities. 14 The most important version of this model in the United States, however, is criminal justice federalism.
Due to the steady growth of federal criminal law, jurisdiction, and institutional capacity over the last century, state and federal
5
Gerstein v. Pugh, 420 U.S. 103, 111-16 (1975) (holding that the Fourth Amendment requires a judicial determination of probable cause
prior to extended detention); County of Riverside v. McLaughlin, 500 U.S. 44, 52-58 (1991) (defining "prompt" under Gerstein's requirement
of a prompt judicial determination of probable cause).
6
Brady v. Maryland, 373 U.S. 83, 86 (1963) (holding prosecution's withholding of the confession of defendant's confederate violated
defendant's due process rights).
7
Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (extending Sixth Amendment right to assistance of counsel to indigent state criminal
defendants); Powell v. Alabama, 287 U.S. 45, 53 (1932) (holding defendants' rights to counsel of their choice throughout the prosecution
process had been violated).
8
In re Winship, 397 U.S. 358, 364 (1970) (holding that proof beyond a reasonable doubt is constitutionally required under the Due Process
Clause).
9
United States v. Armstrong, 517 U.S. 456, 456-71 (1996) (examining selective prosecution claim based on racial bias); see also Whren v.
United States, 517 U.S. 806, 813 (1996) (holding that, in assessing the legality of police decisions to stop suspects under the Fourth
Amendment, courts should ignore officers' subjective motivations).
10
See, e.g., Abby L. Dennis, Reining in the Minister of Justice: Prosecutorial Oversight and the Superseder Power, 57 Duke L.J. 131, 132-33
(2007) (describing prosecutors' "limitless, unmonitored and … unreviewable power").
11
See infra Part II.B.
12
See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, G.A. Res. 55/25, annex II (Nov.
15, 2000), https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html; United Nations Office on Drugs & Crime, World Drug
Report 2017, U.N. Sales No. E.17.XI.7 (2017), https://www.unodc.org/wdr2017/index.html; U.S. Dep't of State, Trafficking in Persons
Report 438 ( 2017), https://www.state.gov/documents/organization/271339.pdf.
13
See Neil Boister, An Introduction to Transnational Criminal Law 135-95 (2d ed. 2012),
http://opil.ouplaw.com/view/10.1093/law/9780199605385.001.0001/law-9780199605385-chapter-12.
14
See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 201-03 (2007).
DAVID SCHOEN
103 Minn. L. Rev. 844, *847
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law enforcement substantially overlap for many categories of crime. Much of this enforcement redundancy, as considered in
detail below, has been a deliberate federal response to diverse problems of underenforcement in state criminal justice. The
point for now, however, is the functional equivalence of duplicative federal-state jurisdiction, nation-state jurisdiction, and
agency jurisdiction. All represent a common strategy to reduce underenforcement by empowering redundant enforcement
authorities: independent entities with equivalent institutional capacity and expertise share jurisdiction. If one neglects to
enforce, the other may. Functionally, each backstops, or provides oversight of, failures to enforce by the other.
A second model for minimizing unjustified failures to prosecute relies on private actors to create redundancy with public
prosecutors' authority. Empowering private actors to file and litigate public law claims is familiar in many civil law contexts;
numerous federal statutes authorize private rights of action that enable private individuals or groups to supplement public
agencies' law enforcement efforts. 15 Through much of the nineteenth century, this kind of duplicative public-private
enforcement authority was a familiar feature in the criminal justice systems of many states, which permitted private parties -
victims - to prosecute alleged criminal wrongdoing.
Redundant charging authority takes other forms as well. In large hierarchical agencies such as the U.S. Department of Justice,
internal administrative review of front-line prosecutors' charging or declination decisions by higher-ups creates a version of
redundant enforcement authority; supervisors can make independent determinations and reverse front-line prosecutors. 16
[*848] This kind of redundancy through administrative review now exists in English, Irish, and many European criminal
justice systems. 17
More ambitiously from a U.S. perspective - because it is rare here - judicial power to review prosecutorial charging decisions is
another means to create some degree of redundant charging authority between the executive and judicial branches. Although
criminal charging is a core function of the executive branch, state and federal courts have modest authority to review and bar
executive officials' decisions to file criminal charges. It is only as a matter of policy that courts - with a few exceptions - are not
empowered to address underenforcement by reviewing the executive's noncharging decisions. (This power is somewhat broader
for courts in England and Wales as well as in the law of a few states.) 18 This model of redundancy separates charging
authority - for courts as for Department of Justice supervisors, the power to order prosecutors to prosecute - from enforcement
authority, which includes the institutional capacity to file and litigate charges. Courts (with rare exceptions) have no
administrative capacity to litigate a prosecution; but they could provide some redundancy in charging authority. 19
In sum, charging redundancy can occur between equivalent agencies in separate governments, between public and private
actors, or between agencies or branches of the same government. Criminal justice systems in Europe and the common law
world have adopted or strengthened one or more of these mechanisms in recent decades. In the United States, choices among
these strategies have changed over time and between jurisdictions. Nearly all states that once authorized private prosecution
have long since prohibited it. Federal prosecutors are organized in a centralized hierarchical agency that makes administrative
review possible, but few state prosecutors are similarly organized. For these reasons and others, the primary means of
enforcement redundancy to combat underenforcement is overlapping federal- [*849] state authority made possible by the
distinctive U.S. model of federalism.
15
Examples of federal statutes authorizing private rights of action include the Clayton Act, 15 U.S.C. § 15 (2006) (granting a private right of
action for antitrust violations); Federal Tort Claims Act, 28 U.S.C. § 2680(h) (1994); Title VI of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5(f) (1994); Americans with Disabilities Act, 42 U.S.C. § 12133 (1994). For an overview, see Pamela H. Bucy, Private Justice, 76 S.
Cal. L. Rev. 1, 12-54 (2002).
16
See 18 U.S.C. § 3771(f) (2012) (mandating review of federal prosecutor decisions within the Justice Department upon victim's request).
17
See infra Part II.A.1.
18
See infra Parts II.B.3-B.4.
19
Note that this conception of redundant authority intersects with, but is distinct from, constitutional separation of powers. In a standard
account (briefly put), separation of powers describes branches of government having distinct roles, authority, and competencies. In the main,
branches do not do the same things; they do different, rival, and complementary things. But if so empowered by the legislature, courts can
exercise some degree of charging authority, creating limited redundancy in charging authority between the executive and judicial branches.
DAVID SCHOEN
103 Minn. L. Rev. 844, *849
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This Article has several aims. One is to introduce the concept of enforcement redundancy and demonstrate its utility. Another is
to highlight problems of criminal law underenforcement and to situate contemporary complaints about failures to prosecute
police violence and sexual assaults as specific examples of broader enforcement deficiencies that stem from bias and favoritism
in police and prosecutorial discretion. The Article also defends the observation that enforcement redundancy strategies are
responses to versions of this problem. It then assesses the strengths and weaknesses of different such strategies, with primary
attention on the effectiveness of the U.S. approach of redundant federal-state authority. A focus on three different categories of
criminal law underenforcement - government corruption, police violence, and sexual assaults - clarifies differences in the
effectiveness of the U.S. approach. Federalism has proven an effective response to states' failures to address forms of public
corruption, and for those crimes, it is likely superior to its alternatives. Federal authority has had some success in compensating
for states' failures to prosecute police violence and other police wrongdoing, but its efficacy is harder to judge and arguments
for supplemental redundancy strategies are stronger. For sexual assaults, federal authority has failed to assert any meaningful
enforcement jurisdiction to compensate for weaknesses in state justice systems. Despite the sustained efforts and notable
successes of reform advocates in this area, no model of enforcement redundancy has made inroads.
The Article proceeds as follows. Part II briefly surveys evidence of and reasons for underenforcement. The need for safeguards
against unjustified nonenforcement has long been recognized in the United States and elsewhere; outside the United States, as
part of victims' rights reforms, it has been the object of institutional reforms. Part III elaborates the mechanisms available to
address risks of criminal law underenforcement. The predominant options are (1) some authority for private actors to initiate or
participate in criminal prosecutions; (2) judicial or administrative review of initial nonprosecution decisions by public
prosecutors; and (3) authority for a separate, independent public prosecutor's office to bring charges when another prosecutor
has declined to. Other countries - out of tradition, an absence of federalism, or as part of victims' rights reforms - rely on
versions of [*850] the first and second options. Part III also considers why U.S. victims' rights laws, which are otherwise
robust, lack either of these components adopted elsewhere, especially given that many state criminal justice systems relied on
private prosecution for much of the nineteenth century. The likely answers help explain why the United States relies almost
exclusively on the third option as a safeguard against underenforcement.
Finally, Part IV assesses how effectively federalism-based enforcement redundancy addresses underenforcement, particularly
the recurrent, contemporary controversies around police violence and sexual assault. Redundant enforcement through
overlapping federalism has had considerable success addressing some underenforcement problems, such as corruption by state
and local officials, certain kinds of civil rights violations, or crimes against disfavored minority groups. 20 It is doubtful that
private prosecution or judicial review could match its success. The federalism strategy has a more mixed record on the problem
of unjustified police violence. Federal officials have succeeded where state officials have failed in overseeing reform of local
police departments to reduce police lawbreaking, and they occasionally prosecute and convict individual officers. 21 But the
vast majority of incidents of police violence go unprosecuted, including most that lead to large civil settlements for victims. 22
20
See, e.g., David Grann, Killers of the Flower Moon: The Osage Murders and the Birth of the FBI 57 (2017) (describing "corrupt sheriffs
and police departments" that failed to enforce the law and were unable to solve serial murders of Native American victims); Margaret
Burnham, The Long Civil Rights Act and Criminal Justice, 95 B.U. L. Rev. 687, 687-88 (2015) (discussing federalism-based redundancy in
the context of the Civil Rights Acts); Gregory L. Padgett, Racially-Motivated Violence and Intimidation: Inadequate State Enforcement and
Federal Civil Rights Remedies, 75 J. Crim. L. & Criminology 103, 105 (1984) (advocating for federalism-based enforcement redundancy to
ensure punishment in crimes against racial minorities).
21
On federal reform of local police, see Rachel A. Harmon, Limited Leverage: Federal Remedies and Policing Reform, 32 St. Louis U. Pub.
L. Rev. 33, 53-56 (2012); Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 20-51 (2009)
[hereinafter Harmon, Policing Reform].
22
Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States 77-84, nn.149-72 (1998),
https://www.hrw.org/legacy/reports/reports98/police/index.htm (documenting "civil remedies");id. at 89-96, nn.182-200, 92-93 tbls.1-2
(documenting "low rate of federal prosecutions"); Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63
UCLA L. Rev. 1144, 1147-71 (2016) (documenting civil settlements for police wrongdoing in 100 localities); Ian Simpson, Prosecution of
U.S. Police for Killings Surges to Highest in Decade, Reuters (Oct. 26, 2015), https://www.reuters.com/article/us-usa-police -
idUSKCN0SK17L20151026 (noting twelve officers were charged for fatal shootings in the first nine months of 2015, compared to about five
per year between 2005 and 2014).
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It is [*851] unclear what portion of those incidents merit criminal prosecution. Key facts are often disputed, and while federal
and state jurisdiction are coextensive here, federal criminal law generally sets a higher bar for liability than state law, especially
due to its more onerous mens rea requirement. 23 That makes the former an imperfect backstop to the latter, because they are
only partially redundant. And as recent changes in federal policy suggest, 24 redundancy between governments is subject to
political shifts in those governments; federal oversight of state enforcement works only if federal officials are committed to the
oversight role. Moreover, keeping prosecution in the exclusive province of executive officials keeps prosecutorial discretion
more closely aligned with political majorities and thereby with popular sentiments about certain groups of defendants (such as
police officers) and victim groups (such as criminal suspects). In this context, redundancy in state law charging by courts or
private actors, rather than rival prosecutors, might make a real contribution. Finally, cases of sexual assault reveal a weakness
of federalism-based redundancy. State and federal criminal jurisdiction in the United States overlap more than elsewhere, but
they are not wholly coextensive. Federal prosecutors lack authority over most assaults that do not involve public officials or
federal [*852] property. Sexual assaults are one context in which the enforcement strategies favored in Europe and England -
regulated private prosecution or review of declination decisions - hold more promise.
I. UNDERENFORCEMENT AND REASONS NOT TO PROSECUTE
A. Sources of Unjustified Noncharging Decisions
Public prosecutors are the gatekeepers of criminal law enforcement, and justice systems employ a variety of safeguards against
prosecutors' misjudgment, bias, incompetence, or laziness. Most are directed at prosecutors' charging decisions rather than
decisions declining to charge (i.e., declination decisions), for familiar reasons - charging creates real burdens and risks for
defendants. 25 Many familiar procedural components are aimed at preventing improper criminal charges or the harm they can
cause. Requirements that charges are based on sufficient evidence are an obvious example, but double jeopardy laws and
restrictions on prosecutors' conflicts of interest serve the same purpose. The full range of pretrial and trial procedures designed
to assure accurate and unbiased adjudication are intended to sort out improper charges and attach punishments only to proper
ones. 26
Safeguards against nonenforcement, or unjustified decisions not to prosecute, are fewer, are less explicit, and (in common law
jurisdictions) are less often in the form of legal rules and mandates. One explanation for this is simply that the interests at stake
are not as high - no individual faces prosecution and possible punishment. Another is that many non-prosecution decisions
23
Police violence is often prosecuted under 18 U.S.C. § 242 (2012) (criminalizing the deprivation of rights under color of law). On
challenges to prosecuting police violence, including federal law's intent requirement, see Barbara E. Armacost, Organizational Culture and
Police Misconduct, 72 Geo. Wash. L. Rev. 453, 465-67 (2004); Mary M. Cheh, Are Lawsuits an Answer to Police Brutality?, in Police
Violence 247, 253, 258-66 (William A. Geller & Hans Toch eds., 1996); John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev.
789, 806-11 (2000); Paul J. Watford, Screws v. United States and the Birth of Federal Civil Rights Enforcement, 98 Marq. L. Rev. 465, 477-
86 (2014); Mark Joseph Stern, Why the Feds Can't Charge Darren Wilson: They Should, but the Supreme Court Gutted the Civil Rights Law
He Violated when He Killed Michael Brown, Slate (Mar. 4, 2015),
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/will_justice_department_charge_darren_wilson_
supreme_court_gutted_civil.html; William Yeomans, The Cognitive Dissonance of Federal Civil Rights Prosecutions and Race, ACS Blog
(Feb. 13, 2015), https://www.acslaw.org/acsblog/the-cognitive-dissonance-of-federal-civil-rights -prosecutions-and-race.
24
See, e.g., U.S. Attorney Gen., Memorandum: Supporting Federal, State, Local and Tribal Law Enforcement (2017); Sari Horwitz et al.,
Sessions Orders Justice Department to Review All Police Reform Agreements, Wash. Post (Apr. 3, 2017),
https://www.washingtonpost.com/world/national -security/sessions-orders-justice-department-to-review-all-police-reform -
agreements/2017/04/03/ba934058-18bd-11e7-9887-1a5314b56a08_story.html.
25
See, e.g., United States v. Armstrong, 517 U.S. 456, 463-66 (1996) (examining the Equal Protection Clause's prohibition on raciallymotivated
charging); Wayte v. United States, 470 U.S. 598, 608 (1985) (holding due process bars prosecution in retaliation for exercising
fundamental rights); Kolender v. Lawson, 461 U.S. 352, 355 (1983) (holding due process bars unduly vague offense definitions to reduce
opportunities for selective enforcement); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) (same).
26
See Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (regarding trial by jury as a "safeguard against the corrupt or overzealous
prosecutor").
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follow from determinations that there is insufficient evidence to support charging, and common law jurisdictions [*853] have
long left those assessments in the unregulated discretion of police and prosecutors. 27
But that is not the whole story. For one, it does not follow from the fact that officials must assess evidentiary sufficiency that
their assessments should be unregulated or unsupervised. The tradition in civil law jurisdictions is otherwise, and available
evidence often depends on the effort and priority officials give to finding it. More importantly, how rigorously we guard against
unmerited nonenforcement depends on how we value the interests harmed by nonenforcement, and on how much we worry
about nonenforcement for the wrong reasons. Both have changed over time.
The primary causes of underenforcement are failing to investigate and charge due to biases against certain victims or harms, or
favoritism toward certain kinds of suspects. 28 Three kinds of crimes - local government corruption, sexual assaults, and
unjustified uses of force by law enforcement officers - illustrate the link between these risks, failures to enforce, and the
consequences of underenforcement. Local corruption garners the least public and political attention now; 29 not coincidentally,
the United States has found an effective model of enforcement redundancy on this front. 30 The justice system's responses to
sexual assault and police violence, on the other hand, are subjects of heated political and policy debates. 31 There has been
notable progress in reducing the criminal justice system's disregard of [*854] both kinds of offenses, but underenforcement -
and almost as important, widespread suspicion of underenforcement - remain significant enough that they illustrate some of the
key costs of those failures. Suspicion of underenforcement is itself a cost, because it reflects a loss of legitimacy for criminal
justice institutions. That loss in turn undermines the system's efficacy if citizens decline to report victimization or otherwise
decline to cooperate with law enforcement officials. Evidence for those effects is strong for both sexual assaults and police
violence. 32 More generally, underenforcement is a form of unequal treatment that unevenly - and unjustly - distributes the
important public benefits of criminal law enforcement, including the state's commitment to protect everyone equally from
unlawful harms. 33 It also deprives victims of the private benefits that criminal justice is now widely recognized to afford, and
owe, to victims.
27
See Morrison v. Olson, 487 U.S. 654, 727-28 (1988) (Scalia, J., dissenting) ("Law enforcement is not automatic … . What every
prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the
public harm the greatest, and the proof the most certain." (quoting Robert H. Jackson, Attorney Gen. of the U.S., Address to the Second
Annual Conference of United States Attorneys: The Federal Prosecutor (Apr. 1, 1940))); 483 Parl Deb HC (5th ser.) (1951) col. 681 (UK) ("It
has never been the rule … that suspected criminal offences must automatically be the subject of prosecution.").
28
See Alexandra Natapoff, Underenforcement, 75 Fordham L. Rev. 1715, 1722-39 (2006) (documenting underenforcement as a significant
problem). On underenforcement of sexual assault offenses, see Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 B.C. L.
Rev. 1287, 1292-1303 (2016) (discussing empirical evidence of bias leading to underenforcement).
29
Concern about public corruption at the federal government level, by contrast, has increased, precisely where criminal and regulatory level
are somewhat weaker. See, e.g., Zephyr Teachout, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United 1-16
(2014).
30
See infra Part III.B.1.
31
See, e.g., Do Police Use Deadly Force Too Often?, N.Y. Times: Room for Debate (Apr. 9, 2015),
https://www.nytimes.com/roomfordebate/2015/04/09/are -police-too-quick-to-use-force.
32
See Michael Planty et al., U.S. Dep't of Justice, Female Victims of Sexual Violence, 1994-2010, at 6 (2013),
https://www.bjs.gov/content/pub/pdf/fvsv9410.pdf (estimating portion of sexual assaults reported to police annually varied from fifty-nine to
thirty-two percent between 2003-10); Nancy Krieger et al., Police Killings and Police Deaths Are Public Health Data and Can Be Counted,
PLOS Medicine 1-4 (2015), https://journals.plos.org/plosmedicine/article/file?id=10.1371/journal.pmed.1001915&type=printable
(describing underreporting of killings by police); Kate B. Wolitzky-Taylor et al., Is Reporting of Rape on the Rise? A Comparison of Women
with Reported Versus Unreported Rape Experiences in the National Women's Study Replication, 26 J. Interpersonal Violence 807, 807-08
(2011) (estimating fifteen percent of rapes were reported to police in 2006).
33
This point is better developed in literature on policing than prosecution. See, e.g., Angela J. Davis, Arbitrary Justice: The Power of the
American Prosecutor 166 (2007) (noting that prosecutorial discretion can unintentionally "produce inequitable results for similarly situated
DAVID SCHOEN
103 Minn. L. Rev. 844, *854
Page 7 of 42
1. Underenforcement Against Corruption
Crimes of corruption by state and local officials are a good example of harms that, at times, criminal justice systems have
unduly ignored. 34 Local police and prosecutors are not institutionally well-situated to pursue and evaluate those crimes. They
often have professional, if not personal, ties to other local officials, which heightens the risk of undue favoritism or judgments
that are otherwise not fully disinterested. That is the main reason [*855] that federal investigators and prosecutors have state
and local corruption in their portfolios. 35
2. Underenforcement Against Sexual Assault
Sexual assault offenses are another context in which underenforcement is now widely recognized, but the causes are different.
Rather than favoritism toward offenders, the problem seems to be bias against the type of offense, and, in varying degrees,
against the victims. Failures of police to rigorously pursue allegations of sexual assaults have been widely documented. 36
Among the explanations that advocates, attorneys and some scholars point to are "the entrenched nature of long-recognized,
gender-driven biases by police against domestic violence or sexual assault claims" and "against individuals from particular
groups or under particular circumstances," especially against victims who are poor or are racial, ethnic or gender minorities. 37
One large-scale empirical study of why rape-kit evidence remained untested, for example, suggested that the explanation in part
was "negative beliefs and stereotypes about victims, which adversely affected the quality of the investigation." 38 It bears
noting that much of this bias is understood to be subtle or unconscious patterns built on cultural norms, rather than conscious,
purposeful disfavor. 39 But when evidentiary records are incomplete or ambiguous, their effects are substantial.
[*856]
3. Underenforcement Against Police Excessive Uses of Force
Failures to prosecute in the wake of police shootings and other possibly excessive uses of force against civilians are scenarios
that raise suspicions of both bias against victims, many of whom are black men (and often criminal suspects, another disfavored
victims and defendants"); Natapoff, supra note 28, at 1753; David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1822
(2005) (arguing that policing failures in some communities undercuts "the egalitarian project of protecting all citizens from private
violence").
34
The point extends to private actors, especially organized crime, with ties to local officials.
35
See infra Part III.B.1. On local corruption, see generally, for example, Corruption and American Cities: Essays and Case Studies in Ethical
Accountability (Joaquin Jay Gonzalez III &? Roger L. Kemp eds., 2016) (discussing the role of corruption in American cities); James L.
Merriner, Grafters and Goo Goos: Corruption and Reform in Chicago, 1833-2003 (2004) (discussing the role of corruption in Chicago).
36
See Tuerkheimer, supra note 28, at 1292-99.
37
ACLU, Responses from the Field: Sexual Assault, Domestic Violence, and Policing 40 (2015); see also Tuerkheimer, supra note 28, at
1292-99 (citing a range of studies to conclude that "in many jurisdictions, the widespread perception that law enforcement officers will likely
not pursue allegations of rape [due to race, class or gender bias] is entirely accurate").
38
Rebecca Campbell et al., The Detroit Sexual Assault Kit (SAK) Action Research Project (ARP), Final Report 109 (2015).
39
Davis, supra note 33, at 23-34; Tuerkheimer, supra note 28 (discussing bias in sexual assault prosecutions); cf. ACLU, supra note 37
(surveying advocates, service providers, and attorneys, who described "the entrenched nature of long-recognized, gender-driven biases by
police against domestic violence or sexual assault claims" and "against individuals from particular groups or under particular circumstances,"
including "bias against survivors of color, and against survivors who are poor, Native American, immigrant, or LGBTQ"); Joshua Correll et
al., The Police Officer's Dilemma: A Decade of Research on Racial Bias in the Decision to Shoot, 8 Soc. & Personality Psychol. Compass
201, 202-09 (2014) (finding that police training reduces some forms of racial bias compared to lay people in shooting simulations but
cautioning training effects may be reduced by real-world stress and fatigue conditions); Jeffery J. Pokorak, Probing the Capital Prosecutor's
Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811, 1817 (1998) (discussing unconscious bias in death penalty
prosecutions).
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group), and favoritism toward the class of perpetrators, law enforcement officers. 40 In the ordinary organization of criminal
justice systems, those cases call on officials from one law enforcement agency to assess the evidence against officials from
another, even when the agencies regularly work together. 41 As in the context of local public corruption, conflict-of-interest
rules 42 are far from adequate to prevent prosecutors from making judgments in light of such professional relationships and
circumstances. 43 The possibility of partiality is inevitable. When [*857] that possibility combines with the long history of
racial disparities in U.S. criminal justice administration, widespread suspicion of non-prosecution decisions in cases of police
violence against minority civilians is hardly surprising, as the Black Lives Matter movement demonstrates. 44
4. Other Underenforcement Contexts
Corruption, sexual assaults, and police violence illustrate the key causes and effects of failures to enforce criminal law, but the
same forces are recognizably at work in other social contexts. Scholars and advocates have pointed to biases as explanations for
inadequate law enforcement responses to offenses against undocumented aliens, sex workers, institutionalized persons, and
targets of anti-LGBT hate crimes. 45 Complaints that police ignored wrongdoing against racial-minority victims in minority
communities were prominent in the 1970s and 1980s. 46 Some of [*858] the remedies, however - which included harsher
drug laws adopted with substantial support from African American politicians and communities - have proven deeply
problematic for those same communities. 47
Finally, less pernicious biases and favoritism are suspected explanations for lenient enforcement patterns in lower-visibility
contexts, such as bicyclists killed by motor vehicle drivers, 48 employees injured on the job due to workplace safety violations,
and bystanders shot by recreational hunters. 49 Even critics of those enforcement decisions in those settings view them as
products of subtle or unconscious empathy with vehicle drivers, employers, and recreational gun users, which incline officials
40
Prison guard assaults on inmates raise the same concerns, although they get less public attention. For a notorious failure to prosecute
prison guards and law enforcement officials for unjustified lethal force, see generally Heather Ann Thompson, Blood in the Water: The Attica
Prison Uprising of 1971 and Its Legacy (2016).
41
Cf. Paul Cassell, Who Prosecutes the Police? Perceptions of Bias in Police Misconduct Investigations and a Possible Remedy, Wash. Post:
Vololkh Conspiracy Blog (Dec. 5, 2014), https://www.washingtonpost.com/news/volokh -conspiracy/wp/2014/12/05/who-prosecutes-thepolice-perceptions-of-bias-in-police-misconduct-investigations-and-a-possible-remedy
(describing the problem of local prosecutors' handling
police cases as a "perception of bias" rather than a "conflict of interest" and recommending state attorneys general handle police cases). One
solution, followed in Wisconsin, is to assign investigation of deaths involving law enforcement officers to a state-level investigative agency
unconnected to the local agency of the officer under investigation.Wis. Stat.§§175.47, 950.04(1v)(do), 950.08(2g)(h) (2014).
42
E.g., Criminal Justice Standards 3-1.3 (A.B.A. 2015); cf. Braman v. Corbett, 19 A.3d 1151, 1154 (Pa. Super. Ct. 2011) (describing a
situation where a district attorney's office recused itself from decision to prosecute on a private complaint alleging the district attorney
committed rape, and the state attorney general investigated and made the decision not to prosecute).
43
For a disturbing account of prosecutorial deference to police, see Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in
America's Largest Criminal Court 127-56 (2016); David A. Harris, The Interaction and Relationship Between Prosecutors and Police Officers
in the United States, and How This Affects Police Reform Efforts, in The Prosecutor in Transnational Perspective 54, 55, 60-63 (Erik Luna &
Marianne Wade eds., 2012) (describing reasons why the prospect of police reform through the efforts of state prosecutors is "bleak"); Nicole
Gonzalez Van Cleve, Chicago's Racist Cops and Racist Courts, N.Y. Times (Apr. 14, 2016),
https://www.nytimes.com/2016/04/15/opinion/chicagos-racist-cops-and-racist-courts.html; see also Kate Levine, The Ultimate Conflict, Slate
(Sept. 11, 2014),http://www.slate.com/articles/news_ and_politics/jurisprudence/2014/09/local_prosecutor_bob_mcculloch_should_
not_be_the_one_to_decide_whether_to.html. For a harrowing account of a federal prosecutor who did not show deference to fellow law
enforcement officials and faced apparent retaliation for it, see Paul Butler, Let's Get Free: A Hip-Hop Theory of Justice 1-21 (2009).
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to assess conduct as non-negligent rather than reckless. 50 Yet even those relatively benign affinities can lead to sub-optimal
enforcement policies that might benefit from redundant evaluation of charging decisions.
B. Other Contributions to Underenforcement
It is worth noting that prosecutors themselves might not share those biases so much as take account of them in a local
community and jury pool. Expecting juries will be unreceptive to a case is one reason that some prosecutors cite for not
charging in some cases. There is evidence for this with regard to hate [*859] crimes against LGBT victim groups, for
example, 51 and the difficulty prosecutors have faced in convicting police officer defendants is a well-recognized hurdle in
police violence cases. 52 The same considerations can cut against prosecutions when victims are undocumented immigrants,
sex workers, prisoners, and suspects in custody. 53 Redundant enforcement authority can do less to redress this barrier,
although depending on its form, it is not powerless. A separate prosecuting authority might bring better investigation and fact
development, or different jurisdictional rules that change the composition of jury venires. 54
Inadequate funding for criminal justice agencies can also play a role in aggravating areas of unjustified underenforcement.
Lack of public resources is an accepted (and inevitable) justification for declining to prosecute in some cases where evidence is
sufficient to prove guilt. 55 But funding constraints are [*860] not an affirmative good on par with other policy-based, publicinterest
justifications for non-prosecution, such as judgments finding that civil, regulatory, or public-health remedies are
preferable to criminal sanctions, or concluding that third-party harms outweigh prosecution's benefits. 56 Resource constraints
are a problem justice systems would like to minimize. Two of the three primary forms of enforcement redundancy do exactly
that, or have in the past. Expanding federal law enforcement jurisdiction over crimes already within state jurisdiction was
designed to bring federal resources to bear on crimes where state resources were insufficient. 57 And private prosecution,
where it [*861] still exists, has an equivalent effect - it permits victims to contribute private funds to public enforcement
efforts. It is no coincidence that common law jurisdictions relied on private prosecution most heavily - through the midnineteenth
century - when state capacity, including criminal justice infrastructure, was much thinner. 58
44
See, e.g., Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176, 2204 (2013) (describing protest
movements and other responses to racially disparate criminal justice policies); Roseanna Sommers, Will Putting Cameras on Police Reduce
Polarization?, 125 Yale L.J. 1304, 1307-17 (2016) (describing polarized public perceptions of, and protests against, police uses of force and
non-prosecution of police); What We Believe, Black Lives Matter, https://blacklivesmatter.com/about/what-we-believe (last visited Oct. 30,
2018).
45
See Avlana Eisenberg, Expressive Enforcement, 61 UCLA L. Rev. 858, 861-64 (2014) (studying the reasons prosecutors choose not to
charge hate crimes); Natapoff, supra note 28 (summarizing evidence of underenforcement of crimes against prostitutes, undocumented
immigrants, residents of certain low-income neighborhoods, and drug-crime suspects); see also Human Rights Watch, supra note 22, at 102
("In fiscal year 1997, the [DOJ] Civil Rights Division received a total of 10,891 complaints [against law enforcement officers], … leading to
twenty-five indictments and informations, involving sixty-seven law enforcement agents; nine were convicted, nineteen entered guilty pleas,
and four were acquitted."); Ryan Gabrielson et al., Deadly Force, in Black and White, ProPublica (Oct. 10, 2014),
https://www.propublica.org/article/deadly-force-in-black-and-white ("Analysis of killings by police shows outsize risk for young black
males.").
46
See Kennedy, supra note 2, at 29-75 (providing a broader account of complaints about law enforcement providing insufficient protection
to black communities); Rod K. Brunson & Ronald Weitzer, Police Relations with Black and White Youths in Different Urban
Neighborhoods, 44 Urb. Aff. Rev. 858, 876 (2009) ("Perceived police under-protection or poor service in poor, minority neighborhoods has
been complained about for generations … .").
47
Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment 173-216 (2015) (describing
support from working-class and middle-class blacks for punitive drugs laws in the 1970s as a means to fight growing disorder in black
communities); Kennedy, supra note 2, at 351-86; David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1285-90
(1995) (describing the effects of anti-cocaine laws on black communities). Underenforcement of criminal law by southern states through the
1960s, when civil rights activists were the victims, are another example.
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When resource constraints remain, however, they force officials to choose which cases get priority. That creates more
opportunity for biases and favoritism to play a role in determining which cases to charge and which to forgo. That is especially
so with crimes in which evidence development is more costly, so officials have to decide whether to invest scarce resources in
those that require substantial investigative efforts. Both sexual assault and police violence cases often require larger-scale
investments to develop evidence sufficient for prosecution. Failures to make those investments are common reasons for nonprosecution
in both contexts. 59
II. MECHANISMS OF PROSECUTORIAL ACCOUNTABILITY
For a range of reasons and across a range of contexts, public prosecutors' failures to enforce criminal law have been of
sufficient concern to lead contemporary justice systems to devise checks against unjustified underenforcement. Approaches
take three basic forms: (1) limited authority for private parties to initiate or participate in criminal prosecutions; (2) independent
review of initial non-prosecution decisions, upon petition from a [*862] victim; and (3) multiple, independent public
prosecution agencies with independent authority to bring charges for the same wrongdoing. Outside the United States, the first
two options predominate; their expansion in recent years is a direct consequence of broader reforms to expand crime victims'
rights. 60 U.S. jurisdictions, however, rely almost wholly on the third model. Despite having adopted otherwise expansive
victims' rights laws in recent decades in response to an influential movement for crime victims' rights, state and federal laws
consistently and explicitly avoid granting any formal authority to private parties, or courts, over criminal charging. The next
three Sections provide an overview of these options, where they exist. Largely with regard to U.S. policy choices only, they
also suggest reasons that one model prevailed over others.
A. Victim Rights and Private Versus Public Interests
In the wake of victims' rights movements in North America and Europe, crime victims now have an array of legal rights once
criminal charges are filed. Victims in the U.S. and European jurisdictions now commonly have rights to participate that include
rights to consult with prosecutors, to be notified of and present at court proceedings, and to offer statements at stages such as