63 Pages Posted: 8 Dec 2006
In numerous U.S. communities and institutions, the government openly and systematically fails to enforce the criminal law. Law enforcement officials know they will not enforce certain laws; victims expect to be unprotected; violators realize they will go unpunished. In these "underenforcement zones," such official practices can generate violence, social decay, and often represent distinct forms of discrimination and democratic failure. And yet, underenforcement remains underappreciated. Unlike "overenforcement," which has become an infamous symbol of racial bias and undemocratic policing, the role of underenforcement in shaping the criminal justice landscape has largely escaped scrutiny. This Article conceptualizes underenforcement as a powerful socio-legal phenomenon in its own right. It documents widespread underenforcement practices and describes the kinds of harms it can cause to vulnerable groups and communities. Not all underenforcement is pernicious: it can, for example, reflect appropriate governmental restraint, or the necessities of overbroad codes. This Article thus proposes a descriptive framework for distinguishing between the appropriate and the problematic. It also relocates underenforcement within three ongoing scholarly debates over: law enforcement discretion, democratic policing, and the state's constitutional obligation to provide minimal law enforcement protection. Underenforcement not only poses significant theoretical challenges in these arenas, but is a major contributor to some of the most dysfunctional aspects of the criminal system.
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