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The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. How has greater judicial discretion affected interjudge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering almost 400,000 criminal defendants linked to sentencing judges to undertake the first national empirical analysis of interjudge disparities after Booker.

The results are striking: Interjudge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed post-Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effects of various actors on sentencing disparities, I find that prosecutorial charging is likely a prominent source of disparities. Rather than charging mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of the sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, this Article suggests that recent sentencing proposals calling for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

Madison Lecture

This lecture is titled Our Broken Death Penalty. But the title is misleading, for it suggests that our death penalty might, at some earlier time, have been something other than broken. It has always been broken. And, as you will hear tonight, it cannot be repaired.

The Federal Sentencing Guidelines are riddled with policy oversights. In United States v. Kimbrough, the Supreme Court permitted district courts to vary from the Guidelines based on categorical policy disagreements. Yet, although district courts often vary from the Guidelines for individualized reasons, the policy variance power has been underutilized. This Note provides a case study of the history of one obscure Guideline, section 2M5.1, as applied to one particular type of case, a nonmilitary-related embargo violation. The case study exposes the United States Sentencing Commission’s systemic oversights in the history of creating Guideline section 2M5.1 and demonstrates how lawyers and judges can rely on that history on a case-by-case basis to expose categorical problems with Guidelines policy. Employing such a categorical policy approach to supplement an individualized approach promotes fairness, transparency, and feedback for future refinement of the Guidelines.

In the wake of the Supreme Court’s 2009 decision in Arizona v. Gant, lower courts continue to debate whether Gant represents an overhaul of the search incident to arrest doctrine or is instead a minor tweak. This Note argues that the answer lies somewhere in the middle. It proposes that courts conduct a more searching inquiry into whether an arrestee has a reasonable possibility of access to the area searched at the time of the search, rather than apply the more lenient standard that some courts have adopted. This middle ground is more faithful to the policy considerations underpinning the search incident to arrest doctrine, while additionally providing the proper balance between officer safety and defendants’ rights.

Mass incarceration in the United States has led many state governments to hand over the management and construction of prisons to private corporations, which are able to meet demand more quickly and are perceived as more cost-effective. There are approximately 100 private prisons housing about 62,000 inmates today, and this number is expected to increase to 360,000 in the coming decade. Unfortunately, private prisons have failed to effectively address many of the issues pervasive in public prisons—namely recidivism, violence, and poor living conditions. Furthermore, the government-customer has failed to effectively hold private prisons accountable for their failures. As a solution this Note proposes the Private Prisoner Rehabilitation (PPR) credit: a performance-based, refundable tax credit that incentivizes private prisons to address some of the key issues plaguing the criminal justice system.

Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite—that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.

This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for “sex-positive” law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.

This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices—such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures—should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically accountable footing.

Substantial Assistance and the Cooperator’s Dilemma

The “substantial assistance” provisions of the U.S. Sentencing Guidelines dominate the practice of modern federal criminal law. This primary mechanism by which criminal defendants who provide valuable information to federal prosecutors are compensated for their cooperation—namely, in the form of a sentence either below the calculated Guidelines sentencing range or, more significantly, below any mandatory minimum—has created a system where defendants are incentivized to incriminate themselves and as many others as possible, all without any guarantee that their cooperation will actually result in a lesser sentence. This Note explores the operation of this provision; the consequent “cooperator’s dilemma” it creates for defendants considering cooperation; and the unreliable, unfair, and unethical results it generates. It offers a novel incremental solution: an intermediate departure provision called “good faith cooperation,” whereby defendants who have attempted to cooperate but do not obtain substantial assistance motions can move to receive sentences below guidelines ranges and mandatory minimums on the basis of their attempted assistance. This provision provides a politically feasible option for legislators and commissioners that addresses multiple concerns regarding the current system without entirely upending the practice of federal criminal law as it exists.

Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve public safety. While these federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, they also encourage harmful policing. Of course, policing often interferes with our interests in autonomy, privacy, and property, and those harms are often worthwhile in exchange for security and order. Federal public safety programs, however, are designed, implemented, and evaluated without reference to the nonbudgetary costs of policing. When those costs are high, federal programs can make local policing seem cheaper for communities, but actually make it more costly in its impacts and therefore less efficient.

The coercion costs of policing are overlooked in most assessments of policing policy, not just in federal programs. Ordinarily, however, even when they are not formally recognized, those costs are accounted for, at least to some degree, in local political processes because local government officials experience public ire when the harms of policing become too great. Unfortunately, federal programs also frequently undermine this check on the intrusiveness of local policing. Internalizing the nonbudgetary costs of policing depends on public capacity to monitor harmful police conduct and on city officials’ capacity to influence police conduct. Some federal programs interfere with these conditions by clouding responsibility for law enforcement coercion and by giving money directly to departments rather than to municipalities. Thus, federal programs not only ignore significant costs of the policies they subsidize, they also interfere with the usual local mechanisms for man- aging those costs. Until federal public safety programs are approached with a more complete understanding of policing—one that attends to its full costs and the need for accountability—federal programs will continue to promote policing practices that do more harm than necessary and maybe even more harm than good.

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives—including in the field of criminal law—has sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front end to achieve policy goals. What about enforcement decisions already made, either by the President’s own agents or by actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. This clemency power is a powerful tool for the President to oversee federal criminal administration. But while centralized authority over enforcement discretion at the front end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been largely overlooked: It is a critical mechanism for the President to control the executive department in criminal matters. Those in favor of strong presidential administration or advocates of a unitary executive theory should encourage a more robust employment of the clemency power. But even critics of strong presidential powers or unitary executive theory in other contexts should embrace clemency as a mechanism of control in the criminal sphere. Whatever the merits of other unitary executive or presidential administration claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it has an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law.