The Duty to Charge in Police Use of Excessive Force Cases

Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging—the failure to charge in entire classes of cases. Undercharging can similarly undermine the efficacy and legitimacy of the criminal justice system. While few have focused on this question in the domestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses.

This sort of impunity threatens the rule of law and misses the opportunity to reinforce important democratic values. This Article draws on international law scholarship to argue that there is a duty to investigate and a limited duty to charge crimes that implicate core democratic principles of equality and fairness. Police use of excessive force against unarmed African-American suspects is just this sort of crime.