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Article: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute December, 2018 Reporter 103 Minn. L. Rev. 844 * 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, ' 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. ? 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. ? 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 * and judicial review of arrests > to evidence disclosure duties, © the right to counsel, 7 and standards of proof. § ! USS. 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 stop- and-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). DAVID SCHOEN HOUSE_OVERSIGHT_016510