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103 Minn. L. Rev. 844, *850

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 racially-motivated 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").

DAVID SCHOEN

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