Friday, September 14, 2018
Despite mass incarceration and overcriminalization, underenforcement of criminal law is an endemic problem. It is the target of prominent reform movements, notably with regard to inadequate prosecution of police violence and sexual assaults; biased nonenforcement parallels biased overenforcement. Justice systems recognize this problem and adopt a variety of strategies to address it. Nearly all are mechanisms to create enforcement redundancy—means by which nonprosecution decisions to be reversed or trumped. In England and much of Europe, crime victims can seek administrative or judicial review of official decisions not to prosecute. Some civil law jurisdictions mandate prosecution upon sufficient evidence. Another option is to empower private parties to prosecute criminal charges when public officials fail to. U.S. jurisdictions largely reject all these redundancy options in favor of another—expanding federal criminal law to overlap large parts of state criminal jurisdiction. All these approaches create redundant authority over charging: supervisory officials, judges, private actors, or rival prosecutors are empowered to second-guess, reverse, or trump a prosecutor’s biased or ill-conceived decision not to charge.
Each strategy has strengths and weaknesses. The focus in this Article is to assess the U.S. federalism-based approach in the context of its alternatives. Federal redundancy has worked quite well to reduce underenforcement in the context of local public corruption. It has a successful but more mixed record regarding crimes by police. It has made very little difference against states’ underenforcement of sexual assault crimes. The Article considers whether other strategies are more promising where federalism is weakest, and how jurisdictions might mix different redundancy strategies to make more progress against underenforcement motivated by illicit biases or favoritism.