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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. 199 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, 200 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. 201 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. 202

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. 203 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. 204 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. 205

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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 implies 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, 18 Tul. J. Int'l
& Comp. L. 335 (2010) (highlighting similarities and differences between the two countries in relation to criminal laws and policies).
132 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).
133 See Director of Public Prosecutions Act 1983 s 10(2); Annual Report 2014-15, supra note 71.
134 In 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).
135 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
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