Federal Criminal Justice Research Articles

Approaches to Federal Judicial History: The Federal Courts and Criminal Justice

Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy. What role has the federal judiciary played in this complex history? This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state—even or especially those who do not define themselves primarily as legal historians—to join the conversation. The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation. This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

Racial and Ethnic Sentencing Differentials in the Federal Criminal Justice System

A large body of multidisciplinary research has documented how sentencing outcomes vary tremendously across racial and ethnic groups. The research challenge lies in establishing whether these sentencing differentials are driven by unobserved heterogeneity correlated to defendant race/ethnicity, or whether they reflect discrimination. We add to the debate by examining the robustness of racial/ethnic sentencing gaps, by gender, when allowing for selection on unobservables. We do so in the context of federal criminal cases, considering 250,000 cases, and using a dataset containing a rich set of covariates relating to defendant and legal characteristics of cases.

The Desired Outcome of the Federal Criminal Justice System

The Desired Outcome of the Federal Criminal Justice System

Locked in. The True Causes of Mass Incarceration and How to Achieve Real Reform. By John Pfaff. New York: Basic Books, 2017. - Breaking the Pendulum: The Long Struggle Over Criminal Justice. By Philip Goodman, Joshua Page, and Michelle Phelps. New York: Oxford University Press, 2017.

Locked in. The True Causes of Mass Incarceration and How to Achieve Real Reform. By John Pfaff. New York: Basic Books, 2017.Breaking the Pendulum: The Long Struggle Over Criminal Justice. By Philip Goodman, Joshua Page, and Michelle Phelps. New York: Oxford University Press, 2017.Virtually every public conversation about American punishment begins with the quintessential chart: a timeline of incarceration rates, stable until the early 1970s, then alarmingly rising through the 1980s, 1990s, and 2000s, until a slight decline in the late 2000s. This striking visual aid goes hand in hand with a story: after several decades of following a rehabilitative punishment model (albeit not without some serious discontents), the Nixon administration made crime a national issue and zealously pursued punitive policies-partly in response to the reality of rising violent crime rates, and partly in a top-down, politically motivated effort to target the civil rights movement and African Americans. The fed- eral government funneled funds into municipal police departments and kicked the war on drugs into high gear, resulting not only in skyrocketing incarceration rates and overcrowding prisons, but also in shameful racial disparities among those caught in the system's clutches. The standard invariably also involves the Prison Industrial Complex (PIC), highlighting the role of the private prison industry and commercial interests in the growth of incarceration.That this narrative has been so successfully disseminated out of academia and into the progressive conversation about incarceration was evident in the last U.S. elections, in which both Democratic can- didates addressed police violence, racial discrimination, and the fate of private prisons. But this has been, in some ways, the victim of its own success, and in recent years several important works have highlighted its problems and inaccuracies. Naomi Murakawa (2014) and Elizabeth Hinton (2016) have highlighted the role played by liberal democrats in the rise of mass incarceration, looking at Nix- on's presidency as a continuation, rather than a shift, of policy pri- orities and practices. James Forman (2017) and Marie Gottschalk (2014) have complicated the simplistic of racial disparities. The two new books reviewed here-Locked In by John Pfaffand Breaking the Pendulum by Philip Goodman, Joshua Page, and Michelle Phelps-go a step further, offering fundamental revisions of the very premise of the incarceration story.Pfaff's main objective in the book is to marshal simple but con- vincing data analysis to show that, not only does the story incorrectly explain mass incarceration, but also leads us astray in directing our reform efforts toward highly salient but ulti- mately less important issues (112). Pfaffidentifies two main cul- prits-the first of which is the war on drugs. Contrary to commonly made assumptions, shows Pfaff, drug-related offending contributes relatively little to the incarceration population. He attributes this error to a reversed causality: drug enforcement might follow, rather than cause, violent crime. Moreover, his data complicates some of the commonly made racial critiques of drug enforcement policies (an effort in which he echoes Gottschalk and Forman's works.). Pfaff's analysis rings true and important, though he too readily dis- misses the importance of reforming the drug system for the sake of those caught in the federal system. It is true, as Pfaffsays, that reforms pay too much attention to the federal criminal justice sys- tem, which focuses much more heavily on drugs than state systems do (13) but incarcerates merely 12% of U.S. prisoners; but the flagrant injustices of the federal system, atypical as they may be, merit attention in and of themselves (Lynch 2016). He also easily ignores a considerable body of scholarship that specifically addresses criminal justice in the states precisely because local con- text is important, such as Barker's three-state comparison (2009), Gilmore's analysis of California (2006), Perkinson's analysis of Texas (2010), and Lynch's analysis of Arizona (2009). …

An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (Sections 4 and 5)

Review Article| October 01 2017 An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (Sections 4 and 5) United States Sentencing Commission United States Sentencing Commission Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2017) 30 (1): 34–57. https://doi.org/10.1525/fsr.2017.30.1.34 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation United States Sentencing Commission; An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (Sections 4 and 5). Federal Sentencing Reporter 1 October 2017; 30 (1): 34–57. doi: https://doi.org/10.1525/fsr.2017.30.1.34 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2017 Vera Institute of Justice2017 Article PDF first page preview Close Modal You do not currently have access to this content.

Elusive justice: tribal police officers’ perception of justice in an American Indian community

This paper explores justice-related perceptions among tribal police officers providing service within a southeastern Indian Reservation in the United States. Interviews with 27 tribal police officers were conducted to understand the manner of the administration of tribal justice. Almost half of the participants interviewed felt that their tribal justice system was dysfunctional due to inter-tribal politics, federal government restrictions, and lenient tribal judges. Additionally, tribal police officers also described the failure of the federal government in prosecuting felony crimes on the reservation. As a result, they believed that both the tribal and federal criminal justice systems did not adequately address crime on the reservation.

Two Targeted, Back-End Reforms for the Federal Criminal Justice System

Two Targeted, Back-End Reforms for the Federal Criminal Justice System

Alternative Visions for the Federal Criminal Justice and Corrections System

Alternative Visions for the Federal Criminal Justice and Corrections System

Sex Offenders in the Federal Correctional System

Driven largely by changes in federal legislation, which increased resources for law enforcement and enhanced mandatory minimum sentences, the number of sex offenders handled by the federal criminal justice system has increased over the last 5 years at rates second only to illegal immigration offenses. The heightened attention to sex offending by federal law enforcement coupled with a greater certainty of punishment imposed has resulted in a record number of sex offenders in federal prison and on supervision in the community. Child pornography offenders, for example, share a similar likelihood of receiving a prison sentence (given being charged and convicted) as drug, weapon, and violent offenders. Sex offenders are also serving longer terms in federal prison and on supervision—terms that are expected to increase further in the next decade. This article considers changes in the federal response to sex offenders and growth in prison and supervision populations. Implications for the management of sex offenders in prison—including prison-based residential and nonresidential treatment programs and civil commitment for individuals adjudicated as sexually dangerous—and offenders under supervision in the community are discussed.

A Decoupled System: Federal Criminal Justice and the Structural Limits of Transformation

The United States federal criminal justice system is changing. Actuarial risk assessment instruments and evidence-based practices play increasingly important roles; federal reentry court programs have been implemented across the country. Yet, while promising, these developments may not be enough to stem the growth and costs of federal criminal justice. The highly politicized nature of crime and punishment may limit the potential for change. Even within the federal criminal justice system, the decoupled nature of bureaucracies, in which stakeholders make decisions for which they are not financially responsible, makes meaningful change problematic. States, however, have demonstrated that structural changes can foster efficient use of resources and improve fiscal stewardship. A number of statutory, structural, and procedural modifications could help to reorganize a continuum of fragmented bureaucracies into a cohesive federal reentry-centered system.

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.

Success-Oriented Funding: Reforming Federal Criminal Justice Grants

A new policy proposal from the Brennan Center for Justice at NYU School of Law suggests the president make broad reforms to federal grants across the country that fund state and local law enforcement. Specifically, the president should use his executive authority to recast all federal grants for criminal justice in a “Success-Oriented Funding” model, in which the flow of dollars is linked to the achievement of clear goals. Grant programs run by the federal government have a powerful role in shaping the behavior of law enforcement nationwide. “Success-Oriented Funding” would encourage practices that reduce crime and violence without recourse to unnecessary force, whether through police behavior or undue focus on arrests and incarceration.

Build to sustain: collaborative partnerships between university researchers and criminal justice practitioners

Sustainable, collaborative partnerships provide a dynamic and fluid environment for studying and implementing policy and practice in justice agencies. However, these relationships take work to develop, grow, maintain, and sustain. Bridging the gap between academics and criminal justice practitioners requires solid partnerships built on access, agreement, goal setting, feedback, and relationship maintenance. When these components merge, both groups benefit from a resilient partnership with the potential for dramatically improving outcomes. A researcher–practitioner partnership is a challenging and complex process requiring careful attention to detail and an endless supply of energy and determination. This paper highlights some of the many successful researcher–practitioner partnerships our research team at the Center for Advancing Correctional Excellence (ACE!) has with criminal justice agencies. We detail four specific partnerships with federal, state, and county criminal justice organizations spanning from probation and parole to problem-solving courts.

The Growth of Federal Criminal Justice Policy Making

To expand the federal criminal justice role, Congress has generally used one of three authorities: (a) the interstate commerce clause, (b) the power to tax, and (c) the “power of the purse” to provide grants-in-aid to states and localities. This article, however, focuses on the use of the federal responsibility to protect the constitutional and statutory rights of citizens to expand this role. Specifically, it analyzes the instrumental (tangible) and expressive (symbolic) functions of civil rights laws on the (a) trafficking of persons; (b) civil rights of persons institutionalized in state prisons, jails, and juvenile justice facilities and systems; and (c) conduct of state and local law enforcement agencies. This analysis will contribute to our understanding of how such laws have expanded the federal criminal justice role by establishing new federal crimes and violations and defining good policy and practice for state and local criminal justice systems.

Reforming Funding to Reduce Mass Incarceration

This proposal lays out a policy framework to reform federal criminal justice funding practices. The new approach would reorient criminal justice incentives toward effectively fighting crime while also reducing mass incarceration. It then proposes concrete reforms to the largest nationwide criminal justice grant program. The criminal justice system in the United States is vast. As with all complex enterprises, this system is honeycombed with incentives that steer or deter behavior, for good or ill. These incentives can spur creative, modern law enforcement policies. But today’s fiscal incentives often guide them away from sensible policy. The result: a system that, despite some recent reforms, continues on autopilot. The proposal would use funds to steer actors toward modern criminal justice practices that reduce mass incarceration while improving public safety. Termed “Success-Oriented Funding” by this report, it uses the power of the purse to promote more effective and just practices by conditioning government dollars on specific, measureable goals. The goals for state and local agencies would drive toward a system that reduces crime and alleviates mass incarceration, while making more efficient use of taxpayer money. It can be applied to all criminal justice funding streams – federal, state, and local.

Special Administrative Measures: An Example of Counterterror Excesses and Their Roots in U.S. Criminal Justice

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20th century criminal justice trends to the 21st century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice.

Parole: Corpse or Phoenix?

For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history. Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.

Can the Federal Criminal Justice System Effectively Identify and Respond to Modern Sentencing “Hot Spots”?

''Hot-spot policing'' has proven to be an effective modern crime reduction strategy. Crime mapping technologies and other forms of data analyses now enable police forces to identify crime hot spots and then invest in focused interventions to improve public safety. Given the success of hot—spot policing, other criminal justice actors should consider and explore how sophisticated data analyses might be used to identify and respond to ''hot-spot'' problem areas within their spheres of activity. Unfortunately, as the materials in this Issue of the Federal Sentencing Reporter suggest, adopting a ''hot-spot'' approach to modern federal sentencing reform may be challenging. Sentencing data can often prove harder to collect and interpret than crime data, which creates difficulties in identifying accurately what are (and are not) critical sentencing ''hot spots'' in modern federal law and practice. Moreover, even when a consensus develops concerning what constitutes a federal sentencing ''hot spot,'' different criminal justice stakeholders will often have very different views concerning what focused interventions are needed to improve the federal sentencing system. This FSR Issue prompts consideration of these matters through its focus on the findings and recom- mendations in two massive new research reports that the U.S. Sentencing Commission published in early 2013. These two reports—one concerning the post-Booker federal sentencing system in general, the other concerning the operation and application of the child pornography guidelines—identify what the Com- mission considers problem areas in the operation of the federal sentencing system and suggest means to address them. But other materials in this Issue concerning these reports—including a set of original commentary from researchers and practitioners, as well as a lengthy letter from the Department of Justice to the Commission—highlight challenges posed by efforts to respond effectively to data-driven assess- ments of the functioning (and perceived dsyfunctioning) of the post-Booker federal sentencing system. The primary goal of this FSR Issue is to facilitate a better understanding of the nature and limitations of the new data and recommendations appearing in the USSC's two new reports. The Editors hope this FSR Issue enables participants and observers of the federal sentencing system to assess effectively what these reports tell us—and fail to tell us—about modern federal sentencing policies and practices. The U.S. Sentencing Commission's ''Hot Spot'' Mandate and Limitations The Sentencing Reform Act expressly gives the U.S. Sentencing Commission a duty to periodically ''review and revise, in consideration of comments and data coming to its attention, the (federal sen- tencing) guidelines.'' 1 The SRA further instructs that, in ''fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system;'' 2 it even calls upon certain authorities to ''at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work.'' 3 Through these statutory instructions, Congress has essentially mandated that the Commission, aided by key federal criminal justice stakeholders, adopt a kind of ''hot spot'' approach to reviewing and revising the federal sentencing guidelines.

New Data and New Questions: TRAC’s Contribution to Federal Sentencing

Even in an era of advisory federal guidelines, it is still easy to focus on the technical minutiae of the Guidelines. The minutiae still matter because the Supreme Court has told us the Guidelines must still be considered and calculated accurately. But the Sentencing Reform Act and its overarching—although often conflicting and widely debated—goals for sentencing demand more. We must continue to resist allowing the Guidelines’ trees to obscure the sentencing forest. Data can help us evaluate sentencing systems and guide sentencing decision-making. Generally speaking, more data is better; though, as we have previously written in these pages, ‘‘Information is a tool and not a panacea.’’ To what use will and should we put sentencing information? Our current federal sentencing structure developed partially out of a concern about unwarranted disparity, but it can be challenging to understand exactly how that concern should inform data collection, what the extant sentencing data truly reveal about unwarranted disparities, and what else should be considered in any analysis of sentencing decisions. This isue of FSR implicates all these matters as we take stock of an important new data set concerning federal sentencing outcomes in recent years. In March 2012, the Transactional Records Access Clearinghouse (TRAC) released an analysis of more than 370,000 criminal cases sentenced in the federal courts during a five-year period. TRAC described its work as a ‘‘first-of-its-kind, judge-by-judge review of federal sentences imposed for drugs, white collar and other kinds of crimes,’’ and highlights from TRAC’s analysis were posted on its website under the heading ‘‘Surprising Judge-to-Judge Variations Documented in Federal Sentencing.’’ The press coverage of TRAC’s data spotlighted concerns about sentencing disparity; the Federal Public Defenders, in turn, were quick to issue a ‘‘Fact Sheet’’ spotlighting limitations and problems with TRAC’s raw data and initial analysis. Recognizing the import and potential impact of TRAC’s data, the Editors of FSR committed this issue primarily to the TRAC data and materials exploring the data’s meaning and import. The result is an issue brimming with updated data and expanded analyses from TRAC and the Defenders. In fact, this issue of FSR not only provides a guided tour of and a healthy debate between TRAC and the Defenders concerning the TRAC data, but also includes additional original commentary from others involved in the federal sentencing system concerning the TRAC data and its broader implications. These Editors’ Observations briefly highlight some of what the TRAC data do and do not add to our basic understanding of federal sentencing policies and practices in the post-Booker era. These Observations also suggest that, though new types of federal sentencing data should always be welcomed and assessed, it may now be time to ask (again) broader questions about the fundamental goals of the federal criminal justice system and Guideline sentencing practices.

Cost-Benefit Analysis in Criminal Law

[p325 This Article explores the prospects for integrating criminal law into the widespread trend elsewhere in the executive branch of using cost-benefit analysis (CBA) to improve criminal justice policy making and enforcement practice. The Article describes an array of unnoticed and under-valued costs created by America’s unique and fairly recent commitment to severe incarceration policies. It then maps the challenges for employing CBA in criminal enforcement practice. Those challenges include CBA’s own methodological and conceptual limitations, public choice problems created by the populist structure of criminal justice administration, constraints on CBA in criminal justice in light of theoretical commitments to retributivism, and practical limits to employing such a policy in the executive branch when legislatures are unwilling to reduce statutory punishment mandates. Despite these obstacles, the Article argues that a properly devised, CBA-based decision procedure—one that takes account of distributive and other non-quantifiable, qualitative concerns—is a promising avenue for rationalization and reform of state and federal criminal justice.