Eighty-year-old Lavetta Langdon was convicted of shooting and killing her husband, Larry Langdon, while he slept.1 She later described decades of abuse by her husband, including being forced to eat pet food naked in front of their children.2 Mr. Langdon beat Ms. Langdon over their child’s performance in a basketball game and for trying to protect their daughter from his abuse.3 He controlled her finances, refusing to let her go to the doctor or go shopping alone.4 Their daughter later told a reporter that she thought “it would be the other way around”; she anticipated hearing the news that her father had killed her mother.5 During this time, Ms. Langdon and her children called law enforcement for help repeatedly, and Ms. Langdon even obtained a legal divorce and fled to another state.6 But she later remarried and returned to live with Mr. Langdon.7 On the day of the killing, Ms. Langdon called the police herself and confessed to the shooting when they arrived at her door.8 After initially facing a first-degree murder charge (eligible for the death penalty in Nebraska9), she pled no contest to manslaughter and was sentenced to eight to ten years in prison.10
Lavetta Langdon’s story is not unique.11 No single dataset captures the number of people incarcerated at this moment for crimes arising out of domestic violence.12 But evidence from at least one state suggests that a high percentage of women incarcerated for homicide are incarcerated for killing those who were abusive to them.13 Domestic violence survivors14 more broadly are likely to receive extremely long sentences when charged with killing abusive partners.15 Nor do these homicide cases fully capture the types of cases in which evidence of abuse would be relevant and powerful for a jury to hear. Survivors who do not kill their abusive partners are often charged with other crimes.16 Those who are involved in crimes with abusive partners, or who are witnesses or bystanders, are criminally charged too.17 Survivors, especially women of color, who turn to drugs to cope with the trauma of abuse, or who shoplift to support themselves, can likewise become ensnared in the criminal legal system.18
Lavetta Langdon’s case illustrates the injustice of this criminalization — and the inadequacy of the criminal legal system in accounting for the harm she had already experienced. The judge at sentencing told her that “[t]here is no question that you, Lavetta, suffer from batter[ed] women’s syndrome” and “[n]o question that you lived in hell,” but that a noncarceral alternative like probation was insufficient.19 There was no consideration that Ms. Langdon’s history — decades of abuse, unsuccessful efforts to extricate herself, and the state’s failure to keep her safe when she contacted law enforcement — had legal significance and warranted exempting her from a punitive prosecution and sentencing.20
This Note argues that the criminal legal system should absolve criminalized survivors,21 or at the very least punish them less, for crimes they commit that relate to their abuse. It then offers a way to reconcile the legal system’s inadequacy in dealing with criminalized survivors by refocusing the conversation on prosecutors. It makes use of a duty-to-protect reading of the Fourteenth Amendment by arguing that prosecutions of criminalized survivors22 violate the Equal Protection Clause. And it argues that prosecutors, not the courts, are independent constitutional actors in our system who are best positioned to adopt and enforce this alternative interpretation.
The Note proceeds as follows. In Part I, this Note identifies the equal protection violation inherent in the criminalization of survivors under an alternative duty-to-protect reading of the Fourteenth Amendment. Next, Part II lays out why prosecutors have a constitutional obligation to enforce the Equal Protection Clause’s guarantees, and why, as a normative matter, they should adopt this duty-to-protect interpretation. Part III suggests methods of implementing this constitutional reading in actual prosecutions, on both the individual and systemic level.
I. Defining an Equal Protection Violation
A. Theories of Equal Protection
At a high level, there is a consensus that equal protection’s guarantees are of special importance to groups that have been vulnerable to discrimination and are politically powerless.23 Although men and women experience domestic violence at roughly equal (and high) rates,24 women are more likely than men to experience severe physical intimate partner violence (IPV).25 LGBTQ+ individuals also experience IPV at rates equal to or elevated from the general population.26 Black, Latina, and Native women all disproportionately face violence at the hands of their partners, as do immigrant women.27 Domestic violence is an overwhelming contributor to overall rates of violence against women,28 including homicide.29 Gender, race, national origin, and gender identity all implicate equal protection’s powerlessness concerns, and all reflect historical axes of discrimination.30 Equal protection, then, would seemingly have something to say about the matter.
Over the years, the Equal Protection Clause has been susceptible to multiple, competing interpretations.31 Before proposing a working equal protection doctrine for criminalized survivors, this Note breaks down each theory and what implications, if any, that reading has for criminalized survivors.
1. Anticlassification. — The dominant theory of the Equal Protection Clause today is anticlassification.32 On this interpretation, the Equal Protection Clause prohibits differentiating people on the basis of certain categories — like race — at least absent sufficient justification.33 The Court has applied this anticlassification logic to laws and policies that discriminate on the basis of gender. Such classifications “must serve important governmental objectives and must be substantially related to achievement of those objectives” to survive an equal protection challenge.34 Proffered governmental justifications must be “exceedingly persuasive”;35 “genuine, not hypothesized or invented post hoc”;36 and cannot “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”37 On anticlassification reasoning, the Court has struck down laws that discriminate on the basis of gender in distributing public benefits,38 public university admission,39 jury selection,40 adoption regulation,41 and elsewhere.
But the anticlassification model of the Fourteenth Amendment falls short of meaningfully rectifying gender discrimination, because it fails to address some of the most salient issues that differentiate women’s lives. From abortion to domestic violence to economic inequality, the anticlassification model has little to say about laws and policies that disproportionately impact women and women’s lives, but do not explicitly classify on the basis of gender.42 And because prosecutions of criminalized survivors do not classify on the basis of gender or other forbidden categories and instead reflect the application of generally applicable criminal law to survivors and their actions, the anticlassification model offers little help for criminalized survivors.
2. Antisubordination. — An alternative theory of equal protection sees its core purpose not as the elimination of state classifications, but rather as the elimination of laws that perpetuate the subordination of certain historically disadvantaged groups to others — whether through formal classifications or practical effects.43 “Antisubordination”44 is a powerful alternative to anticlassification as an overarching theory of gender equality and equal protection. It lays out a roadmap to protecting a right to abortion,45 rectifying the overcriminalization of pregnant women of color addicted to drugs,46 and eliminating sexual harassment of our society’s most vulnerable workers47 by looking at the effect of law on women’s material conditions. In this way, it offers a much more effective theory of remedying the systematic and unequal effects of gender discrimination than the anticlassification approach.48
However, while the antisubordination approach was possibly at the root of some of the Court’s landmark equal protection cases,49 and while some of the Court’s sex discrimination cases make use of antisubordination reasoning in tandem with the anticlassification doctrine,50 the Court has more recently rejected antisubordination arguments.51 This has rendered the theory an unlikely avenue for legal change on systematic gender discrimination issues like domestic violence and the prosecution of criminalized survivors.
3. Duty to Protect. — A third view of the equal protection mandate, offered by Professor Robin West in response to the intractable debate between the anticlassification and antisubordination camps, posits that, at a minimum, the Equal Protection Clause means that “no state may deny to any citizen the protection of its criminal and civil law against private violence and private violation.”52 This reading of the amendment, which this Note adopts, has the virtue of being a historically sound reading consistent with the Fourteenth Amendment’s clear language.
The case for a duty-to-protect reading begins with the amendment’s language itself: “[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”53 The word “protection” should have some significant meaning, given that it was chosen for ratification into the constitutional text.54 The phrase conveys more than a guarantee of formal equality; it prohibits a state from denying protection unequally.
Moreover, the amendment’s legislative history (though arguably ambiguous as to which modern interpretation is correct55) offers at least some support for a duty-to-protect reading. To take one example, during the ratification debates, Representative John Bingham cited the Equal Protection Clause when discussing an 1866 New Orleans race riot in which dozens of mostly Black Republicans were killed with the sanction and assistance of the mayor of New Orleans and the Louisiana police.56 He emphasized that ratification was necessary to prevent the state from denying protection of the law to certain groups,57 thus explicitly linking the text of the proposed amendment with the type of violence that defined the early, pre–Fourteenth Amendment Reconstruction period.
If text and legislative history provide some support for a duty-to-protect reading, the historical meaning of “equal protection” and its post-ratification implementation both robustly reinforce that reading.58 The right to protection originated in the English common law tradition, then evolved in the American tradition until it was made explicit in the Fourteenth Amendment, by which time it included some state obligation to check private violence, enforce criminal punishment, and offer civil remedies.59 This right had widespread acceptance in the Congress that drafted the Fourteenth Amendment and was well-known to the state legislatures that ratified it.60
After adopting the Fourteenth Amendment, the Reconstruction Congress would go on to enact legislation designed to protect Black Southerners from physical violence. The Enforcement Acts combatted rampant “terrorist violence” in the South by criminalizing conspiracies to deny citizens’ rights to participate in the political process, giving aggrieved individuals a right to sue, and handing powerful enforcement tools to the federal government.61 The Enforcement Act of 187162 — better known as the Civil Rights Act of 1871 or the Ku Klux Klan Act — adopted a duty-to-protect reading in the very language of the statute,63 and that fact was further emphasized in floor debates on the Act.64 Those same debates made clear that the Act itself was a response to rampant, unaddressed Klan (that is, private) violence,65 and that many Republicans saw protection as a positive right.66 Nor was the duty-to-protect reading confined to historical context and legislative history. Some early courts also accepted similar readings in prosecutions under the Enforcement Acts and held that equal protection encompassed failure to act.67
If the duty-to-protect reading was persuasive at the time of the Fourteenth Amendment’s ratification, that prompts the question of what the Equal Protection Clause’s scope and meaning are today, when law enforcement, private violence, and state neglect look very different.68 Scholars defending a duty-to-protect reading have diverged both in the scope and application of that reading. West, who argues for the “central, minimal guarantee” of “protection against private violence,”69 also takes the broader position that the Clause could support “minimal welfare rights, not only to shelter, food, and clothing, but also to a liveable minimum income or job.”70 Professor Christopher Green argues somewhat more narrowly that the duty-to-protect reading could require state courts to expand access to judicial relief, restrict prosecutorial discretion, and grant the federal government power “to provide enforcement and remedial services when states have failed to do so.”71 The precise contours of what, exactly, equal protection would guarantee beyond the baseline constitutional minimum are contested, and determining those contours would require judgments outside the traditional scope of judicial decisionmaking.72
Lastly, a note on the state action doctrine. The state action requirement is ordinarily a threshold equal protection question: no state entity action, no constitutional violation.73 The state action requirement, however, is incompatible with the duty-to-protect theory of equal protection, both practically and historically. As a historical matter, consider the legislative debates on the Enforcement Act of 1871. There, congressional Republicans discussed the meaning of equal protection and repeatedly referenced state inaction (in enforcing laws) as a denial of equal protection.74 Additionally, as a practical matter, if the duty to protect means states cannot deny protection of the law, then underenforcement — that is, state inaction — is the crux of the violation.75
This Note argues that the duty-to-protect reading of the Equal Protection Clause, at a minimum,76 requires protection from illegal private violence, especially when that violence (and the state’s attendant failure to protect) is systematically directed toward one group.77 This reading is incompatible with existing constitutional doctrine on the Equal Protection Clause, which is dominated by anticlassification reasoning78 and bounded by the state action doctrine.79 But this Note argues that it is nonetheless a valid interpretation that the relevant state actors have a constitutional obligation to act — and identifies prosecutors as the constitutional decisionmakers best equipped to make this interpretation a reality.
B. Documenting the State’s Failure to Protect
The state’s failure to protect domestic violence survivors is a constitutional violation under the duty-to-protect theory of equal protection. First, when the state fails to adequately enforce laws intended to protect survivors of domestic violence — by failing to impose criminal penalties or not enforcing civil protective orders — the state fails to meet its duty to protect. That state inaction violates the Equal Protection Clause’s requirement that the state protect individuals from private violence. Second, the state further violates its equal protection obligations when it then prosecutes domestic violence survivors.80 Those prosecutions compound, rather than remedy, the state’s first constitutional failure — thus constituting another failure to protect.81 Put another way, if the state is going to act after having already failed in its duty to protect, that action should be corrective.
1. State Inaction. — The initial failure to protect begins with criminal law’s underenforcement of domestic violence laws, whose shortcomings are well-documented82 and were the subject of sustained and successful advocacy through the late twentieth century.83 Those reforms began with taking domestic violence seriously as a public issue warranting legal intervention, not as a private family matter.84 Hotline and legal advocacy resources improved.85 Pro-arrest and pro-prosecution policies for domestic violence perpetrators were a key aspect of this change,86 and domestic violence prosecutions increased significantly — one study showed a 178% increase in criminal domestic violence cases over a decade.87 Although mandatory arrest and no-drop prosecution policies (requiring continued prosecution even where the alleged victim declines to cooperate) fall short in addressing domestic violence in a number of ways — in no small part because they can be bad for victims88 — their adoption at the very least shows an effort to remedy violence.
The modern criminal legal system fails to protect victims in a host of other ways. Victims are sometimes threatened with or subjected to material witness warrants to compel their testimony against those they have accused of abuse.89 Others “who do involve law enforcement report having dehumanizing experiences” ranging from “discrimination and biased police misconduct” to “dismissive responses, and the perpetuation of myths about domestic violence.”90 The act of prosecuting an allegedly abusive partner can further perpetuate harm, with prosecutors recreating “the kinds of power and control dynamics” of an abusive relationship.91 Nor do the laws used to prosecute domestic violence accurately encompass the pernicious nature of abusive power dynamics in a violent intimate relationship: The law focuses on “[e]pisodic physical violence” and ignores the “continuum of sexual and verbal abuse, threats, economic coercion, stalking, and social isolation” that entrench abusive relationships.92 That narrow lens means that victims sometimes only testify about physical, not emotional, abuse — and juries thus take victims’ accounts less seriously.93
The result is a legal system that victims often distrust and refuse to make use of, for good reason. Few survivors report finding the criminal legal system useful in either recovering from crime or connecting them with resources.94 In the aftermath of invoking the legal system’s protection, Black women “routinely are dismissed, devalued and mistreated,” and experience hopelessness — results that only underscore how inadequate the current system of enforcement is.95
This systemic neglect is not novel: Professor Zanita Fenton has compared law enforcement’s refusal to protect women who are victims of domestic violence “to the police’s historic refusal to enforce the law to protect Blacks,” the very historical context to which the Fourteenth Amendment responded.96 Today, the state is complicit in creating a social system where violence against victims is normalized and goes unpunished through government negligence.97 That state neglect particularly disadvantages women of color because, in deciding whether to involve law enforcement, women of color often must choose between overenforcement or no enforcement at all.98 Often what is most missing from criminal prosecutions is what survivors repeatedly request: a societal belief that what they experienced was real, an end to victim-shaming, and the rehabilitation of and treatment for those who committed abusive acts.99
Civil legal remedies, intended as noncriminal alternatives to help survivors, fall short too. Noncriminal alternatives like protective orders can be extraordinarily helpful to those who seek them, both in reducing incidents of abuse and in making the abused partner feel safer.100 But there is no established constitutional right to enforcement of a civil restraining order,101 and equal protection challenges to underenforcement are rarely successful because plaintiffs are not able to establish the requisite intent.102
In short, the state fails to protect survivors by not adequately prosecuting abuse, enforcing other legal protections like civil restraining orders, or coming up with meaningful alternatives to these legal remedies. That state inaction constitutes a failure to protect by systematically denying domestic violence victims security from private violence, even when laws on the books prohibit such violence.
2. State Action. — That initial constitutional failure to protect is only exacerbated in the case of criminalized survivors. Prosecuting criminalized survivors, rather than protecting survivors from past or future private violence, instead then subjects them to state-sanctioned harm. Again, even before a prosecution begins, the state has already neglected its duty to protect. These prosecutions only dig the hole deeper. This section focuses on three specific forms of this equal protection violation: the prosecution of survivors for killing or attempting to kill their partners, the prosecution of survivors for crimes associated with their abuse, and the prosecution of survivors under failure-to-protect laws. It is worth noting that this is not a static area of law: States have adopted new statutes recognizing the links between domestic violence and crime, but these laws fail to adequately address the realities of those connections.103
First, survivors can face prosecution for killing, or attempting to kill, their abusive partners. In these cases, mitigating legal doctrines such as self-defense104 often fall short. Self-defense ordinarily requires defendants to show an imminent or immediate danger of death or other serious harm,105 but criminalized survivors are often unable to show imminence. In cases like that described in the Introduction,106 where a survivor shoots her husband while he is sleeping, the ordinary scope of common law or codified self-defense is unavailable because no matter how horrific the abuse or severe the danger, it is not “imminent” within the legal definition.107 That legal distinction does not map onto the very real danger that survivors often face at the time they kill abusive partners. A recent study showed that about two-thirds of those incarcerated in women’s prisons for the murder or manslaughter of their abusive partners “were in extreme danger of being killed by their partner the year before the offense.”108 Nor is substantive criminal law the only legal inadequacy in these prosecutions. Evidence law, for example, is often applied in ways that undercut survivors’ legal cases.109
Second, even if survivors did not kill (or attempt to kill) their abusive partners, they are often charged with participating in crimes alongside them.110 They are charged with crimes they committed to navigate and manage their own victimization.111 And they are charged with crimes — ranging from substance abuse to petty theft — that are inextricably entangled with and a product of their abuse.112 In some of these cases, survivors played minor roles in the crime, but still were punished harshly, including being sentenced to die in prison.113 Six-in-ten women sentenced to life in prison in Michigan, for example, are incarcerated for homicides based solely on a theory of accomplice liability.114 The same is true for the nearly three-quarters of women incarcerated for felony murder in California who did not kill anyone; “most of [these] women were subjected to intimate partner violence by the actual killers.”115 In other instances, survivors committed crimes because abusive partners told them to, as in the case of many survivors convicted of prostitution or other sex-trafficking crimes.116
Third, survivors can be charged with failure to protect children117 under laws that criminalize caregivers who “know[ of] or suspect[] . . . abuse[] and fail[] to report it.”118 These laws are sometimes implemented unequally — ninety percent of those incarcerated for failure to protect in Oklahoma are women, and they are disproportionately Black.119 Half of those women were experiencing IPV at the time of the crime.120 That inequality is not just a feature of who is incarcerated; it is reflected in sentences too: In some cases, the women convicted of failure to protect received longer sentences than did those who actually perpetuated the abuse.121 Eligibility for life sentences is not uncommon.122 The criminal legal system, which has enforced these laws against survivors even when they were actively taking steps to leave abusive circumstances,123 thus denies survivors the ability to protect themselves from private violence by extricating themselves from the abuse.
In sum, when prosecuting criminalized survivors — whether for killing their abusive partners, committing other crimes that were a product of abuse, or failing to protect others — the state only aggravates its own failure to protect. The state first fails to protect survivors from private violence.124 It then weaponizes the machinery of the state against them through prosecution125 and subjects survivors to a legal system often hostile to their experiences and arguments.126 And finally, its legal doctrines fail to account adequately for the fact that survivors charged with crimes arising out of their abuse were in danger at the time the crime was committed127 — and that absent state protection, they did what they felt they had to do to protect themselves. The duty-to-protect reading of the Fourteenth Amendment identifies this failure as a constitutional violation in need of redress. Part II explains why prosecutors are best positioned to remedy that violation, and Part III spells out the nuts and bolts of a solution.
II. Defining Prosecutors’ Constitutional Role
The legislative, executive, and judicial branches all have a role to play in remedying the criminal legal system’s constitutional shortcomings. These roles apply with equal force to survivors’ criminal cases, which are often the product of the state defaulting on its obligation to protect on multiple occasions. This Part argues that prosecutors, including prosecuting offices and individual line prosecutors,128 can and should play a critical role in enforcing equal protection values when making independent constitutional judgments about their cases.129 It argues for a form of “soft departmentalism”130 by which prosecutors interpret and enact a duty to protect rooted in equal protection in their own decisionmaking process.
Modern doctrines like the tiers of scrutiny are judicial tools for implementing the Fourteenth Amendment’s requirements.131 But the Fourteenth Amendment applies with equal force to all branches of government.132 Enforcing laws, in particular, requires some degree of constitutional interpretation when deciding how and in what circumstances to enforce a law that poses a constitutional question.133 In many instances, that exercise of independent constitutional judgment is final and unreviewable.134 For example, state prosecutors sometimes decide not to pursue the death penalty in a particular instance because doing so might violate the Eighth Amendment135 or decline to enforce state policies that, in their independent judgment, violate other constitutional mandates, like the Supremacy Clause.136 These decisions are not just preliminary adjudications of constitutional questions; they are often the last word on the matter.137
And considering the Fourteenth Amendment’s mandate as one applicable to all state actors has major benefits: It offers an opportunity to broaden the scope of constitutional obligations and reshape them to be more responsive to and, potentially, more historically accurate regarding what the amendment’s language requires.138 Prosecutors, like other executive officials, are institutionally positioned to enforce the Constitution in a different way.139 They can be more flexible, experimental, and individualized in their interpretations.140 And, unlike some others in the executive branch, prosecutors are not ordinarily confined to acting ex post.141 In certain cases, they are positioned to take constitutional positions that are quite different from those that the courts have adopted.142 In many circumstances, they are the only legal actor with the authority and ability to do so. Mandatory minimums confine judges’ discretion; mandatory arrest statutes can do the same for police.143 Prosecutors, in contrast, retain immense power and discretion with little oversight and hazy constitutional limits.144 In effect, they “are the criminal justice system’s real lawmakers.”145
For all these reasons, prosecutors and prosecuting offices are better positioned today to revitalize the duty-to-protect reading of equal protection than the courts.146 Yet prosecutorial decisionmaking today is often not guided by constitutional norms. Prosecutors can and do disregard constitutional rights.147 That disregard may be traceable, in part, to the inherent tension between prosecutors’ established power to exercise lenience and the expectation that they will treat cases and defendants equally.148 From a more practical standpoint, the intense structural incentives to win and close cases do not incentivize strict adherence to established constitutional rights,149 let alone seeking out and implementing novel equal protection arguments.
Nonetheless, prosecutors can and should take up the mantle of enforcing a duty-to-protect reading of the Fourteenth Amendment in criminalized survivor prosecutions as part of — not in opposition to — their responsibility to do justice. Equal protection norms can help rationalize and systematize an understanding of when prosecutors can and should take actions like dismissing cases, or not filing charges in cases involving criminalized survivors.150 Though other entities could play a role in enforcing a duty-to-protect reading, a court’s decision to embrace a vision of equal protection (such as a duty to protect) that is out of step with decades of Supreme Court doctrine would be almost unthinkable.151 But a prosecutor’s individual decision to decline to move forward with a case on a novel constitutional theory still seems plausible.152
III. Implementing Equal Protection for Criminalized Survivors
The County Attorney who prosecuted Lavetta Langdon chose to charge her with first-degree murder and another felony.153 He opposed setting bond, even while admitting she may not have been “a flight risk or danger to the community.”154 And he declined to give legal significance to her abuse, stating in court that “[t]here is no way under Nebraska law that this [is] a legal defense nor does it excuse or explain her conduct.”155 In doing so, he perhaps unwittingly identified the injustice in her case: that the legal system does not adequately account for the abuse that criminalized survivors experience. This Part focuses on one key aspect of criminalized survivor prosecutions: the charging decisions made by prosecutors at the outset of a case. It argues that the duty-to-protect theory of equal protection implicates prosecutors as constitutional decisionmakers who could remedy that injustice.
Prosecutors make charging decisions to commence “formal criminal proceedings.”156 That decision — whether to charge in the first place (and which charges to file) — is enormously influential to the outcome of a criminal case, especially because the vast majority of criminal cases in federal court and in many states resolve in pleas.157 Charging decisions are also usually entirely discretionary and almost never subject to judicial review.158 Finally, charging decisions can interact with mandatory minimums to exacerbate injustice, enabling prosecutors to eliminate judicial discretion even where judges might otherwise be inclined to give it.159
Prosecutors’ considerations in making those decisions range from the formal requirements of reasonable belief in probable cause160 and sufficient admissible evidence to obtain a conviction161 to more indefinite requirements like whether prosecution is in the relevant public interest.162 In practice, legal and extralegal factors such as resources, individual conceptions of justice, and even defendants’ demeanors can affect charging decisions.163 For example, in cases involving survivors as defendants, a prosecutor making a charging decision is often evaluating what degree of murder to charge, or whether to charge murder at all.164 In more minor cases, such as drug possession or theft, prosecutors decide what charges, if any, are appropriate and whether to offer more informal resolutions, like pretrial probation or adjudication in drug court.165
Like all other actors in the criminal legal system, prosecutors are bound by the Fourteenth Amendment and cannot selectively prosecute in violation of the Equal Protection Clause.166 But existing selective prosecution doctrine places the burden on the defendants, who “must prove discriminatory purpose” — a bar that is “virtually impossible” to meet.167 However, under a duty-to-protect theory of the clause, discriminatory purpose is not at the crux of the doctrine. Instead, prosecutors simply must not prosecute cases where that prosecution is (or compounds) a denial of equal protection, specifically by failing to meet their duty to protect.
Implementing this duty to protect begins with prosecutors incorporating it as a norm into their decisionmaking. Prosecutors can and should consider their constitutional protection obligations when making charging decisions involving criminalized survivors. Prosecuting offices navigate two interrelated dilemmas. First, the individual: Should this potential defendant be charged? Second, the systemic: Should these types of cases be prosecuted? Similar considerations are relevant to both determinations.
When facing an individual survivor being charged with a crime relating to or arising out of abuse, prosecutors should first consider the extent to which the state failed to protect in that instance. For example, if the survivor had taken out an order of protection against an abusive partner,168 had previously and repeatedly called the police and attempted to invoke the legal system as protection against the violence,169 or simply was subject to the types of repeated illegal private violence that the legal system is supposed to mitigate, those considerations should militate against charging that survivor or warrant pursuing less punitive alternatives. In doing so, prosecuting offices would effectively incorporate the type of evidence at the front end that might later be relevant at sentencing or resentencing170 in order to avoid the victimization of subjecting a survivor to the criminal legal system at all.
Prosecuting offices should likewise systemically reevaluate their practices of prosecuting survivors of domestic violence for crimes arising out of or related to abuse to prevent compounding the harm perpetrated by the legal system. This reevaluation might involve prosecuting offices conducting mandatory research and disclosure of the percentage of defendants who are survivors of domestic violence,171 who committed crimes alongside or involving someone they allege172 was abusive,173 and a disclosure of what sentences were asked for and handed down in those cases. Prosecutors could enact office-wide policies intended to decarcerate survivors, such as defaulting to charging manslaughter rather than murder for those who kill abusive partners and offering charges that do not carry mandatory minimums so that individuals can receive probation or other noncarceral sentences whenever possible.174 For survivors who were prosecuted and incarcerated in the past, prosecuting offices can remedy excessively punitive charging decisions by supporting parole or cooperating on postconviction relief for those individuals.175 Each of these policies might already operate in some offices as informal or formal practices.176 But under the duty-to-protect theory of equal protection, prosecutors should see these policies not just as best practices but also as constitutionally directed and legitimated.
Conclusion
As equality has come to subsume equal protection doctrine, protection has receded — to the detriment of many groups consistently denied the protection of the laws. The duty-to-protect reading accords with the history and purpose of the Fourteenth Amendment and offers a powerful antidote to the modern, anticlassification model of the Fourteenth Amendment. Nonetheless, that doctrine and its attendant requirements are now ossified into tiers of scrutiny that govern judicial review of state action.
But constitutional obligations do not and should not only bind state actors reviewing legislative and executive actions ex post. When it comes to equal protection in the criminal legal system, the primary constitutional decisionmakers are prosecutors. Too often, criminalized survivors have already been deprived of state protection from private violence — often in stark and heartbreaking fashions. Unenforced restraining orders, underutilized resources, dismissal and mistreatment from police and prosecutors in the past — these practices and more reflect not just a neglect, but a constitutional neglect. By taking this reading of the Equal Protection Clause seriously, the power brokers of the criminal legal system have an opportunity to enact their own constitutional remedies.