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103 Minn. L. Rev. 844, *849
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 1s 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 IIT 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. 7° 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. 7! But the
vast majority of incidents of police violence go unprosecuted, including most that lead to large civil settlements for victims. 7?
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
Bumham, 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).
2 On federal reform of local police, see Rachel A. Harmon, Limited Leverage: Federal Remedies and Policing Reform, 32 St. Louis U. Pub.
£. Rev. 33, 53-56 (2012); Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. I, 20-51 (2009)
[hereinafter Harmon, Policing Reform].
2 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 I. 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), /Attps://www.reuters.com/article/us-usa-police -
idUSKCNO0SK17L20151026 (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).
DAVID SCHOEN
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