Academic analysis of underenforcement in criminal justice

Page 6 of 42 103 Minn. L. Rev. 844, *852 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. 77 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. 7° 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; 7° not coincidentally, the United States has found an effective model of enforcement redundancy on this front. 7° The justice system's responses to sexual assault and police violence, on the other hand, are subjects of heated political and policy debates. 3! 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. 37 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. * 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 (Sth 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. 3 See, eg. Do Police Use Deadly Force Too Often?, N.Y. Times: Room for Debate (Apr. 9, 2015), hittps://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), hittps://www.bjs.gov/content/pub/pd{/{vsv9410.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), Attps://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 HOUSE_OVERSIGHT_016515