Academic analysis of federal‑state enforcement redundancy in police‑use‑of‑force cases

Page 30 of 42 103 Minn. L. Rev. 844, *902 Responses to unjustified police violence reveal a third outcome for enforcement redundancy confined to the federalism model. Federal enforcement authority extends to cases of police violence to a much greater degree than for sexual assaults. That authority extends as well to other kinds of bias-motivated wrongdoing by both private actors and government officials, which local police and prosecutors have at times ignored or devalued, and for which state-level enforcement commitment continues to be uneven. !” Federal jurisdiction is coextensive with state jurisdiction regarding police wrongdoing, and the Justice Department's institutional capacity for enforcement probably exceeds that of its state counterparts, but in one respect the overlap is not complete. The key substantive criminal offenses available to prosecutors in the federal code are somewhat more restrictive. The primary federal statute used to charge cases of [*903] police excessive use of force requires proof of willful deprivation of rights, °° a strict mens rea standard that makes it harder for federal prosecutors to prove liability than it would be for state prosecutors relying on typical assault or homicide offense definitions. 7°! The fact that Congress has for decades let stand this mens rea hurdle to excessive-force prosecutions suggests that federal legislators, if not Justice Department officials, are less committed to a full federal-state enforcement redundancy - or "to altering the federal-state balance in order to reinforce state law enforcement" - than they are for public corruption offenses. 7° That limit notwithstanding, federal prosecutions in this area have a track record of succeeding where state prosecutions failed or were never attempted, and in that way providing at least a partial remedy for underenforcement by state criminal justice officials. Much of the federal advantage comes from the fact that federal prosecutors are, in general, better situated to objectively investigate, assess, and prosecute wrongdoing by police officers than are local prosecutors who ordinarily interact with and depend upon those officers (or at least their agencies). This is not a particular criticism of local prosecutors’ offices; it is one instance of the basic problem that officials (and people generally) are untrustworthy judges of the conduct of others with whom they have affiliations, allegiances, or ongoing relationships. For that reason a few states assign such cases to state-level, rather than local, officials. 7° And the U.S. Justice Department attempts to collect data on deaths in jails, prison, or during [#904] attempted arrests, to facilitate Justice Department oversight. ?°4 The same concerns motivate English laws applying special judicial scrutiny (when triggered by requests from victims' families) to prosecutor's decisions not to charge in the case of death caused by law enforcement officials or occurring in official custody. 7° 131 Some federal states such as Germany and Canada lack enforcement redundancy because they use a single, nationwide, criminal code, which is enforced for prosecution agencies and courts organized at the state or provincial level. See generally Eric P. Polten & Eric Glezl, Federalism in Canada and Germany: Overview and Comparison (2014) (describing similarities in German and Canadian federalism, including allocating authority over substantive criminal law to the federal government but criminal justice administration to state or provincial prosecutors and courts). In Australia, like in the United States, states and the federal government each have their own criminal codes. But Australian federal criminal authority is confined much more narrowly than in the United States to conduct that implicates a distinct federal interest. See generally Arther B. Gunlicks, The Lander and German Federalism 59, 72, 129 (2003) (describing German criminal affairs and jurisdictions as compared to the United States); Polten & Glezl, supra, at 5-6, 10, 13-14; Brian Galligan, Comparative Federalism, in The Oxford Handbook of Political Institutions 261, 266-75 (Sarah A. Binder et al. eds., 2008) (discussing federalism and judicial review and regulations); Kathleen Daly & Rick Sarre, Criminal Justice System: Aims and Processes, in Crime and Justice: A Guide to Criminology 357 (Darren Palmer et al. eds., 5th ed. 2017) (examining the processes and purposes of the criminal justice system); Vicki Waye & Paul Marcus, Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds, Part 2, 78 Tul. J. Int'l & Comp. L. 335 (2010) (highlighting similarities and differences between the two countries in relation to criminal laws and policies). 32 Since 2011, Switzerland also now has unified national criminal law and procedure codes administered in all cantons. See Anna Petrig, The Expansion of Swiss Criminal Jurisdiction in Light of International Law, 9 Utrecht L. Rev. 34, 36 (2013). 33 See Director of Public Prosecutions Act 1983 s 10(2); Annual Report 2014-15, supra note 71. 34 Tn unusual circumstances, two states may also have concurrent jurisdiction over the same crime, enabling one to assess the adequacy of the other's enforcement effort. For a rare example, see Heath v. Alabama, 474 U.S. 82, 91-93 (1985). 35. See U.S. Const. amend. V (Double Jeopardy Clause); Bartkus v. Illinois, 359 U.S. 121, 136-39 (1959) (affirming power of state to prosecute defendant after a federal prosecution for the same bank robbery); United States v. Lanza, 260 U.S. 377, 384-85 (1922) (approving federal prosecution after state prosecution based on same conduct). DAVID SCHOEN HOUSE_OVERSIGHT_016539