Judge Sessions and fellow Members of the United StatesSentencing Commission, thank you for giving me the opportunity tospeak today on the subject of mandatory minimum sentencingprovisions under federal law. My name is Erik Luna, and I am a lawprofessor at Washington and Lee University School of Law and anadjunct scholar with the Cato Institute.1 In my allottedtime, I will briefly discuss some concerns about the rise andpersistence of mandatory minimums in the federal criminal justicesystem.
1. THE CASE AGAINST FEDERAL MANDATORYMINIMUMS
The basic critique of mandatory minimum sentencing schemes is wellknown and becoming more widely accepted. To begin with, mandatoryminimums do not serve the traditionally accepted goals ofpunishment. All theories of retribution (and some conceptions ofrule utilitarianism) require that punishment be proportionate tothe gravity of the offense, and any decent retributive theorydemands an upper sentencing limit.2 The notion ofproportionality between crime and punishment expresses a commonprinciple of justice, a limitation on government power that hasbeen recognized throughout history and across cultures,3and a precept “deeply rooted and frequently repeated in common‐lawjurisprudence.“4 Mandatory minimums eliminate judicialdiscretion to impose a prison term lower than the statutory floor,making case‐specific information about the offense and offenderirrelevant, at least to the extent that these facts might call fora below‐minimum sentence. For this reason, mandatory minimums areindifferent to proportionality concerns and can pierce retributiveboundaries through obligatory punishment.
Mandatory minimums may not fulfill consequentialist goalseither, by failing to provide effective, efficient deterrence ormeaningful incapacitation. Clarity and certainty of punishment arenot synonymous with deterrence, which requires that a defendant notonly know the rule, but also believe that the costs outweigh thebenefits from violating the law and then apply this understandingto decision‐making at the time of the crime. Most offenders neitherperceive this balance of costs and benefits nor follow the rationalactor model.5 In turn, incapacitation is only effectiveif: (1) the person imprisoned would otherwise commit crime, and (2)he is not replaced by others. Mandatory minimums prove problematicon both criteria. Offenders typically age out of the criminallifestyle, with long obligatory sentences requiring the continuedincarceration of individuals who would not be engaged in crime.Moreover, certain offenses subject to mandatory minimums can drawupon a large supply of potential participants; with drugorganizations, for instance, an arrested dealer or courier isquickly replaced by another. It is not surprising, then, that mostresearchers reject crime‐control arguments for mandatory sentencinglaws.6
Mandatory minimums generate arbitrary outcomes aswell.7 They can have a “cliff effect” by drawingseemingly trivial lines that carry huge consequences. One of themore notorious examples is provided by the compulsory 5‑yearsentence for the possession of 5.0 grams of cocaine base. Crackcocaine offenders face a steep cliff under this law, where someonecaught with 4.9 grams receives a relatively short sentence — butadd a fraction of a gram and a half‐decade in federal prisonnecessarily follows, with the defendant falling off the “cliff.“Mandatory minimums can also have a “tariff effect,” where somebasic fact triggers the same minimum sentence regardless of whetherthe defendant was, for instance, a low‐level drug courier orinstead a narcotics kingpin. Perversely, the tariff may be leviedon the least culpable members in a criminal episode, given thatthose in leadership positions often have valuable information thatis unavailable to low‐level offenders (i.e., the type of materialthat can be used as a bargaining chip withprosecutors).8
This raises the more general question as to the propriety ofextracting information and guilty pleas through the threat ofmandatory minimums. Such practices impose a “trial tax” ondefendants who exercise their constitutional rights to trial byjury, proof beyond a reasonable doubt, and other trial‐relatedguarantees — the tax being the mandatory minimum sentence thatotherwise would not have been imposed.9 Sometimesmaximum leverage is obtained through a process known as “chargestacking” (or “count stacking”), whereby the government divides upa single criminal episode into multiple crimes, each carrying itsown mandatory sentence that can then be stacked, one on top of theother, to produce heavier punishment.10 This may beparticularly troubling when law enforcement procures further crimesthrough its own actions, such as arranging a number of controlleddrug buys in order to achieve a lengthy sentence.11 Inmulti‐defendant cases, there is also an issue of fairness whendisparate punishment is the result of a “race to the prosecutor’soffice,” with the defendant who pleads first — sometimes the onewho has the savviest or most experienced defense counsel — avoidinga long mandatory sentence.
Moreover, the mechanical nature of mandatory minimums canentangle all criminal justice actors in an oxymoronic process wherefacts are bargainable, from the amount of drugs to the existence ofa gun. The participants will figuratively “swallow the gun” toavoid a factual record that would require a mandatorysentence.12 To be sure, these machinations appearreasonable in difficult cases by evading excessive sentencesdemanded under the federal regime. But the end result is a legalsubterfuge that can only undercut the legitimacy of the criminaljustice system and its actors. The moral authority of law dependsnot merely on just outcomes but also justifiable procedures inreaching such results. “Our government is the potent, theomnipresent teacher,” Justice Louis Brandeis once warned, and “ifthe government becomes a lawbreaker, it breeds contempt forlaw.“13 It almost goes without saying that a legitimate,properly functioning criminal justice system would not toleratesuch deception and instead would demand that the case facts betrue, not from some kind of God’s eye perspective, but as best ashumans can discern. This is not something that results from anoutcome‐based bargaining process and simply maintains a sufficientdegree of truthiness, to use Stephen Colbert’s phrase. “Facts arelike flint,” one federal judge noted several years ago, and“whether a defendant pleads or goes to trial, the facts shouldtheoretically remain the same.“14
All of the above problems tend to generate different punishmentsamong similarly situated offenders — a sadly ironic consequence,given that determinate sentencing in general and mandatory minimumsin particular were intended to eliminate the perceived disparitiesunder the previous federal sentencing system.15 Theconcept of equality — that all people are equal before the law andthat any legal distinction requires justification — is embedded inliberal thought and considered fundamental to a justsociety.16 Equality in the Aristotelian sense requiresdecision‐makers to treat like cases alike, and just as importantly,to treat dissimilar cases differently.17 It would thusbe a violation of equality for disparate sentences to be given torelevantly similar offenders and for comparable sentences to bedoled out to relevantly dissimilar offenders.18Inconsistent application of mandatory minimums has exacerbateddisparities in both ways — expanding the sentencing differentialsbetween analogous cases and requiring the same base sentences inpatently dissimilar cases.19 Particularly disturbing isthe appearance, if not reality, of disparities along racial orethnic lines.20
The source of this problem is clear: Mandatory minimumseffectively transfer sentencing authority from trial judges tofederal prosecutors, who may pre‐set punishment through creativeinvestigative and charging practices, producing troublingpunishment differentials among offenders with similar culpability.Undoubtedly, federal law enforcement is well‐intentioned in manycases. But it would be naÃ¯ve to assume that good faithwill prevent the misuse of mandatory minimums. Serious and violentoffenders may have served as the inspiration for mandatoryminimums, but the statutes themselves are not tailored to thesecriminals alone and instead act as grants of power to federalprosecutors to apply the laws as they see fit,21 even tominor participants in non‐violent offenses. Expressing a view heldby many jurists, Justice Anthony Kennedy described as “misguided“the “transfer of sentencing discretion from a judge to an AssistantU. S. Attorney, often not much older than the defendant.”
Often these attorneys try in good faith to be fair inthe exercise of discretion. The policy, nonetheless, gives thedecision to an assistant prosecutor not trained in the exercise ofdiscretion and takes discretion from the trial judge. The trialjudge is the one actor in the system most experienced withexercising discretion in a transparent, open, and reasoned way.Most of the sentencing discretion should be with the judge, not theprosecutors.22
Prosecutors and judges occupy distinct but overlapping roles inthe criminal justice system. The prosecutor is empowered with thediscretion to instigate charges against a defendant, amass evidenceof crime, and seek convictions as an adversary in the trialprocess. The U.S. Attorney is more than an ordinary party, however,given the power he wields and the principal herepresents.23 Moreover, prosecutors are influenced byordinary human motivations that may at times cause a loss ofperspective — career advancement, path dependence, immodesty,occasional vindictiveness, and so on24 — leading to themisapplication of mandatory minimums. Under the current sentencingregime, no external check prevents the imposition of an unjustmandatory term.
In turn, the judiciary functions as an impartial decision‐makerin individual cases. A sentencing judge is the one neutral actor inthe courtroom who benefits from neither harsh punishment norlenient treatment; he has no vested interest in the outcome of acase other than that justice be done. Trial court judges are alsoin the best position to make the highly contextual, fact‐ladendecisions about the proper punishments in particular cases. Theyare familiar with the environment in which offenses occur; theyhave been involved in every part of the court process; they haveseen the evidence firsthand; and they have been in a position toevaluate the credibility of each witness and each argument.Moreover, as Justice Kennedy mentioned, trial judges have thebenefit of experience in reasoned, transparent discretion, makingthem the precise entity that should decide the complicated,fact-specific issues of federal sentencing.25 Judges aredenied this power when mandatory sentences inevitably follow fromprosecutorial choices in charging.
But the shift in authority is more than misguided — itimplicates the separation of powers doctrine. Liberal society haslong been concerned with arbitrary, oppressive action stemming fromthe accumulation of too much power in too few hands. The Framers’solution was to create a system of checks and balances,distributing power across government institutions in a manner thatprecludes any entity from exercising excessive authority and setseach body as a restraint on the others.26 Along theselines, the U.S. Constitution employs a pair of structural devices,the first being the separation of powers among co‐equal branches ‑the legislative, executive, and judicial27 — each having“mutual relations” in a series of checks andbalances.28
As a matter of history and experience, an autonomous courtsystem under the guidance of impartial jurists is considered themost indispensable aspect of American constitutionaldemocracy.29 An independent judiciary was meant toprotect individuals from the prejudices and heedlessness ofpolitical actors and the public.30 The courts werehistorically entrusted with certain fundamental legal decisions,including dispositive criminal justice issues that demandedevenhanded judgment, such as the imposition of punishment onanother human being.31 “It has been uniform and constantin the federal judicial tradition for the sentencing judge toconsider every convicted person as an individual and every case asa unique study in the human failings that sometimes mitigate,sometimes magnify, the crime and the punishment toensue.“32 There is “wisdom, even the necessity, ofsentencing procedures that take into account individualcircumstances,“33 drawing upon the judge’s familiaritywith each case and “face‐to‐face contact with the defendants, theirfamilies, and their victims.“34 By taking away thisauthority and giving it to the executive branch, mandatory minimumshave undermined a fundamental check on law enforcement.
Federal mandatory minimums also affect the Constitution’s secondstructural device intended to prevent the problems associated withconcentrated authority — the division of power between national andstate governments. Grounded in the text and context of theConstitution,35 federalism limits the powers of nationalgovernment and prevents federal interference with the core internalaffairs of the individual states.36 Among the areas thatthe Framers sought to reserve to the states was “the ordinaryadministration of criminal and civil justice.“37 TheConstitution mentioned only a handful of crimes in its text, all ofwhich were consistent with the design and limits offederalism.38 In fact, it was unthinkable to the Framersthat the federal government would adopt a full‐scale penal code,let alone displace or substantially interfere with the statecriminal justice systems.39 As Chief Justice JohnMarshall would later opine, Congress “has no general right topunish murder committed within any of the States,” and “it is clearthat Congress cannot punish felonies generally.“40 Inmore recent times, the Supreme Court has reiterated theselimitations on federal involvement in local criminal justicematters, given that the “[s]tates possess primary authority fordefining and enforcing the criminal law.“41Constitutional concerns are thus raised whenever Congress effects“a significant change in the sensitive relation between federal andstate criminal jurisdiction.“42
Unfortunately, Congress has assumed such power over criminalmatters, occasionally with a nod to an enumerated power, usuallythe regulation of interstate commerce. This does not mean, however,that politicians, courts, and commentators have been or should beoblivious to considerations of federalism.43 In thepresent context, mandatory minimums represent a federalencroachment on state prerogatives and the implementation ofpolicies that may conflict with local choice. For instance, mostdrug and weapons crimes amenable to federal mandatory minimums areactually prosecuted in state courts pursuant to state laws carryingfar lower sentences.44 Yet it is hardly disputed thatthe possibility of severe punishment influences the choice ofwhether to bring a case in federal or state court. This raises thespecter of abusive forum shopping where a federal prosecution ispursued not because the case raises a special national interest,but because it jacks up the potential punishment.
Federal mandatory minimums also impinge on another core benefitof federalism, namely, pluralistic decision‐making and localchoice.45 In a diverse society like ours, citizens indifferent jurisdictions are likely to have distinct views on thesubstance and process of criminal justice. State and localdecision‐makers tend to be more attuned to such preferences, giventheir closeness to constituents and the greater opportunity ofcitizens to be involved in state and local government. Unencumberedby national dictates, states may even become laboratories ofexperimentation in criminal justice. In the oft‐repeated words ofJustice Brandeis, “It is one of the happy incidents of the federalsystem that a single courageous state may, if its citizens choose,serve as a laboratory; and try novel social and economicexperiments without risk to the rest of the country.“46Should individuals find unbearable the local or state approach tocrime and punishment, federalism allows them to vote with theirfeet, so to speak, by moving to another county or state. Federalmandatory minimums can overwhelm such decision‐making on issues ofcriminal justice, effectively and powerfully nullifying state andlocal judgments. For example, the federal government mayeffectively override a state’s decision that certain drug‐relatedconduct should not be a crime in the first place or should besubject to far more lenient punishment.47
2. FEDERAL MANDATORY MINIMUMS ANDOVER-CRIMINALIZATION
As a conceptual matter, federal mandatory minimums can be viewed asa particularly troubling iteration of larger trends:over-criminalization and, more specifically, over-federalization.Over-criminalization refers to the constant expansion of criminaljustice systems, through the creation of novel crimes, harsherpunishments, broader culpability principles, and heightenedenforcement, often in the absence of moral or empiricaljustification and without regard for statutory redundancy orjurisdictional limitations.48 The phenomenon is hardlynew. In a 1967 critique of extending the criminal sanction, SanfordKadish warned that “until these problems of over‐criminalizationare systematically examined and effectively dealt with, some of themost besetting problems of criminal‐law administration are bound tocontinue.“49 He was right. In the ensuing decades,lawmakers have relentlessly added to American penal codes, despiteequally relentless criticisms by scholars and public interestgroups.50
Although much of this expansion has occurred at the statelevel,51 the most virulent form of over‐criminalization‐ and certainly the most criticized52 — has occurred inthe federal system. Congress has slowly but surely obtained ageneral police power to enact virtually any offense, adoptingrepetitive and overlapping statutes, criminalizing behavior that isalready well‐covered by state law,53 creating a vast webof regulatory offenses,54 and extending federaljurisdiction to all sorts of deception55 orwrongdoing56 virtually anywhere in theworld.57 At last count, there were about 4,500 federalcrimes on the books,58 with the largest portioninstituted over the past four decades.59
Like the growing opposition to mandatory minimums,over-federalization has been criticized by a broad band oforganizations and by politicians on both the left and theright.60 Indeed, mandatory minimums constitute a speciesof over‐criminalization and over‐federalization.61 Theyare part of a punishment spree of unprecedented proportions thathas helped make America the single most punitive Western nation andthe world’s imprisonment leader.62 Since 1980, thefederal prison population has increased tenfold, for instance,while the average federal sentence has doubled and the averagefederal drug sentence has tripled, due in no small part tomandatory minimums.63 So what is the cause ofover‐criminalization, over‐federalization, and overly broad andharsh mandatory minimums’ Some thirty years after his originalcritique, Professor Kadish suggested a commonsensical explanationfor the “creeping and foolish federal overcriminalization.”
Some dramatic crimes or series of crimes are givenconspicuous media coverage, producing what is perceived, and oftenis, widespread public anxiety. Seeking to make political hay, somelegislator proposes a new law to make this or that a major felonyor to raise the penalty or otherwise tighten the screws. Sinceother legislators know well that no one can lose voter popularityfor seeming to be tough on crime, the legislation sails through ina breeze. That the chances of the legislation working to reducecrime are exceedingly low, and in some cases the chances of itdoing harm are very high, scarcely seems to be a relevantissue.64
This account is supported by other scholars, as well as thereports of legal groups and former federal officials.65Sensationalistic news coverage tends to increase the publicsalience of crime, generating fear and attendant calls foraction.66 Even in areas where concern may be unfounded,populist pressures create incentives for lawmakers to enact newcrimes and harsher punishments. Such legislation is readily graspedby constituents, produces few opponents, permits the public to ventits moral outrage, and most importantly, gives politicians the“tough on crime” credentials that can fill campaign coffers andgarner votes at election time.67 As Professor Kadishmentioned, the process can be set off by a string of crimes or evena single traumatic episode that grabs news headlines and the publicimagination. These events may trigger what social scientists havetermed a “moral panic,” where intense outbursts of emotion impederational deliberation, lead people to overestimate a perceivedthreat and to demonize a particular group, and generate a publicdemand for swift and stern government action.68 Althoughany resulting legislation will almost certainly be touted for itsinstrumental benefits, the law will serve as a symbolic gesture forpoliticians and their constituents, expressing condemnation of therelevant act and actors.69
Law enforcement also has an interest in the expansion ofcriminal justice. Although aspirational language may describe theprosecutorial function as an impartial “minister ofjustice,“70 there should be little doubt that Americanprosecutors see themselves as advocates in a sometimes brutallyadversarial process.71 This role conception isexacerbated by prosecutorial incentive structures, where thesuccess and career prospects of both lead and line prosecutors aretypically measured by the rate of convictions and the aggregateamount of punishment.72 Naturally, over‐criminalizationserves this incentive structure. The more crimes on the books andthe harsher the punishments, the more power law enforcement canexercise throughout the criminal process.73 By raisingthe potential punishment through harsh sentencing schemes, forinstance, or by charging multiple counts for a single course ofconduct, defendants are given every reason to cooperate with theprosecution by providing information, entering into pleaagreements, and waiving their constitutional rights. All of thisenhances the power of prosecutors, who can obtain more and cheaperconvictions via plea bargaining or, if that fails, deploy potentcriminal provisions against their opponents at trial. As one formerJustice Department official recently said, “[I]t is not surprisingthat the federal agency charged with preventing, solving, andpunishing federal crimes is not aggressively attempting to shrinkthe federal code.“74
This understanding helps explain the rise and persistence ofmandatory minimums. Chief Justice William Rehnquist noted thattheir enactment often does not involve “any careful consideration“of the ultimate effect. Instead, “[m]andatory minimums … arefrequently the result of floor amendments to demonstrateemphatically that legislators want to … get tough oncrime.’ ”75 In fact, federal lawmakers have explicitlyused the phrase “tough on crime” in their support of mandatoryminimums,76 with some of the most notorious mandatoryminimum laws originating from symbolic politics. Consider, forinstance, the enactment of 18 U.S.C. § 924© as part of theGun Control Act of 1968 (which itself was part of the Omnibus CrimeControl and Safe Streets Act of 1968). The legislation was aresponse to public fear over street crime, civil unrest, and theshooting of Martin Luther King, Jr. The day after the assassinationof Robert F. Kennedy, § 924© was proposed as a flooramendment and passed that same day with no congressional hearingsor committee reports, only a speech by the amendment’s sponsorabout its catchphrase goal “to persuade the man who is tempted tocommit a federal felony to leave his gun at home.“77Since then, Congress has amended § 924© several times andconverted it from a one‐year mandatory minimum to one of thenation’s most draconian punishment laws.78
Another example comes from the passage of the Anti‐Drug AbuseAct of 1986, the law that instituted the crack‐powder cocainesentencing differential and created the basic structure of federalmandatory minimums for drug trafficking.79 The drivingforce behind these provisions was the cocaine overdose ofbasketball star Len Bias, which triggered a remarkable level ofmedia attention and a moral panic about crack cocaine. Tellingly,the bill was enacted without hearings or input from the judiciary.“Much of the [standard] procedure was circumvented,” a House staffmember recounted. “In essence, the careful, deliberate proceduresof Congress were set aside in order to expedite passage of thebill.“80 The legislation was a blatant attempt toappease an electorate that was distraught over the death of agifted athlete and hysterical about an alleged epidemic ofcrack.81 A Washington Post editorial suggested that inthe prevailing can‐you‐top‐this atmosphere, “if someone offered anamendment to execute pushers only after flogging and hacking them,it probably would have passed.“82 Ironically, it waslater determined that Bias died from ingesting powder cocaine, notcrack.83 But by then, it didn’t matter.
3. THE PROSPECTS FOR REFORM
This general political dynamic has stymied efforts to reformmandatory minimums in Congress in the past. Even during periods oflow crime, the public has expressed fear of victimization and abelief that criminals are not receiving harsh enough punishment.Lawmakers have responded in kind with new crimes and stifferpenalties, including mandatory sentences. Conversely, any reformefforts have carried the danger of being labeled “soft on crime.“As a result, no federal mandatory minimum has been repealed in thelast forty years, with harsh sentencing provisions remainingpolitically popular well into the new millennium. As one U.S.Attorney noted in 2007, “[E]very Administration and each Congresson a bipartisan basis has … supported mandatory minimumsentencing statutes for the most serious ofoffenses.“84
There are, however, some promising signs. The need for reformhas been recognized by practitioners, researchers, public interestgroups, and prominent legal organizations like the American BarAssociation and the American Law Institute.85 Likewise,a litany of federal judges has voiced their dismay at the excessivepunishment they are required to dole out,86 includingChief Justice Rehnquist, Justice Kennedy, and Justice StephenBreyer.87 But the most interesting and potentiallyinfluential opposition to mandatory minimums has come from thepolitical branches and conservative commentators. At various timesin their careers, the past three Presidents have all doubted thewisdom of long mandatory sentences.88 Likewise, federallawmakers and even a former federal “Drug Czar” have disputed thejustice of mandatory minimums.89
In a much publicized case involving a long mandatory sentence,dozens of former federal prosecutors and high‐ranking JusticeDepartment officials (including former U.S. Attorneys General and aformer Director of the F.B.I.) filed amici curiae briefs in supportof the defendant.90 After the punishment was upheld onappeal and certiorari was denied, a conservative federal lawmaker“question[ed] some severe mandatory minimum sentencing laws,especially in the context of drug enforcement,” adding that “[i]nthe long run, it may be just as important to provide rehabilitationand treatment programs, instead of imposing unreasonably harshsentences.“91 A few conservative commentators havespoken out against mandatory minimums as well.92 Mostimportantly, the support of the American public for mandatoryminimums has waned in recent times.93
Given changes in the Presidency and Congress, it is now appearsthat considerable interest exists in moving beyond a verbalcritique of these laws to actually enacting statutory reforms. Infact, we may be approaching a sort of “tipping point” on mandatoryminimums. Early indications include the formation of a JusticeDepartment‐led working group to examine federal sentencing andcorrection policy and to make recommendations for reform; thebipartisan support for Senator Jim Webb’s “National CriminalJustice Commission,” which would conduct a comprehensive review ofthe criminal justice system;94 and the Senate’s passageof the Fair Sentencing Act of 2009, which would eliminate themandatory minimum for simple crack possession and reduce thesentencing disparity between crack and powder cocaine.95Needless to say, Congress’s direction to this body to submit acomprehensive report on mandatory minimum sentencing seems to bodewell for reform efforts.96
My preference would be for federal lawmakers to eliminatemandatory minimums in one‐fell swoop. But given the aforementionedreality that Congress has yet to repeal a contemporary mandatoryminimum, I fully recognize that every journey must begin with afirst step. In a forthcoming article co‐authored with Judge PaulCassell, we propose some reforms that are more minimalist innature.97 The first proposal contains two parts: (1) alegislative authorization for the U.S. Sentencing Commission to setguidelines ranges where it deems them to be appropriate, withoutautomatically being required to peg guidelines to existingmandatory minimums; and (2) a broader and more detailed “safetyvalve” provision that would permit federal judges to departdownward whenever the guidelines provide for the possibility of alower sentence than a mandatory minimum. We also offer severalchanges that could build upon initial reforms, such as theelimination of the stacking function of 18 U.S.C. § 924©,converting it into a true recidivist statute, and a limited revivalof the U.S. Parole Commission to review sentences for inmatesserving extremely long prison terms. An updated draft of thearticle will be submitted to the U.S. Sentencing Commission in afew weeks, and, of course, we would be happy to discuss theseproposals with the Commissioners at their convenience.
But whatever the vehicle, the federal scheme of mandatoryminimums needs to be reformed. To sum up my views, let me borrow aline from former federal Judge John Martin.98 Mandatoryminimums are over‐inclusive, they’re unfair, and they can even bedraconian. They transfer sentencing power from neutral judges topartisans in the criminal process. They make for poor criminaljustice policy and raise all sorts of constitutional problems.Other than that, they’re a great idea.
Again, thank you very much for the invitation to testifytoday.
1. All opinions expressed and any errorsherein are my own.
2. See generally ANDREW VON HIRSCH & ANDREWASHWORTH, PROPORTIONATE SENTENCING: EXPLORING THE PRINCIPLES(2005); see also JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 52 – 54(5th ed. 2009); JOHN KAPLAN, ROBERT WEISBERG & GUYORA BINDER,CRIMINAL LAW: CASES AND MATERIALS 28 (6th ed. 2008).
3. See U.S. CONST. amend. VIII (banning “cruel andunusual punishments”); see also Universal Declaration of HumanRights, art. 1, G.A. Res. 217A, U.N. Doc. A/810, art. 5 (1948) (“Noone shall be subjected to torture or to cruel, inhuman or degradingtreatment of punishment.”); International Covenant on Civil andPolitical Rights, Dec. 19, 1966, arts. 7, 10, 999 U.N.T.S. 171;Convention Against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. No.51, U.N. Doc. A/RES/39/708 (1984). Mosaic Law and the Code ofHammurabi formulated the principle as an “eye for an eye,” commonlyunderstood as requiring that punishment be commensurate to theoffense. See Exodus 21:24, THE HOLY BIBLE 97 (C.I. Schofield ed.,Oxford U. Press 1945); MARTHA T. ROTH, LAW COLLECTIONS FROMMESOPOTAMIA AND ASIA MINOR 121 (2d ed. 1997) (translatingHammurabi’s Laws). In the Classical Age, Aristotle opined that itwas the judge’s duty to impose punishment equivalent to the crime,see THE NICOMACHEAN ETHICS 179 – 82 (J.A.K. Thomson trans., 1976);while the Roman statesman and author Cicero proclaimed the maximthat “the punishment should fit the offense.” See CICERO, DE REPUBLICA, DE LEGIBUS 513 (Clinton Walker Keyes trans., 1928).”[T]here are certain duties that we owe even to those who havewronged us,” Cicero averred, “[f]or there is a limit to retributionand to punishment.” CICERO, DE OFFICIIS 35 (Walter Miller trans.,1938). See generally Anthony F. Granucci, “Nor Cruel and UnusualPunishments Inflicted’: The Original Meaning, 57 CAL. L. REV. 839,844−47 (1969) (discussing historical limits on excessivepunishment). Post‐Enlightenment scholars promoted the concept ofproportionality as well. For instance, Montesquieu wrote that”[a]ll punishment which is not derived from necessity istyrannical.” MONTESQUIEU, THE SPIRIT OF THE LAWS 357 (Thomas Nugenttrans., 1914) (1748). Liberty is protected “when criminal lawsderive each punishment from the particular nature of the crime.There are then no arbitrary decisions [when] the punishment doesnot flow from the capriciousness of the legislator, but from thevery nature of the thing.” Id. at 222. Likewise, the first modernpenologists argued for proportionality between crime and penalty.See, e.g., CESARE BECCARIA, ON CRIMES AND PUNISHMENTS ch. 6 (1764)(“Of the Proportion Between Crimes and Punishments”); JEREMYBENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS ANDLEGISLATION ch. 14 (1789) (“Of the Proportion Between Punishmentsand Offences”). Blackstone also argued for proportionality inpunishment and decried excessive penalties as violating “thedictates of conscience and humanity,” being ineffective at“preventing crimes and amending the manners of people,” andevincing “a bad symptom of the distemper of any state, or at leastof its weak constitution.” 4 WILLIAM BLACKSTONE, COMMENTARIES, at*10 — 19. Proportionality was enshrined in the Magna Carta, theEnglish Bill of Rights, and British jurisprudence. See Solem v.Helm, 463 U.S. 277, 284 – 85 (1983); Trop v. Dulles, 356 U.S. 86, 100(1958); see also Hodges v. Humkin, 80 Eng. Rep. 1015, 1016 (K.B.1615) (“[I]mprisonment ought always to be according to the qualityof the offence.”); RICHARD L. PERRY, SOURCES OF OUR LIBERTIES 236(1959) (describing “the longstanding principle of English law thatthe punishment … should not be, by reason of its excessive lengthor severity, greatly disproportionate to the offense charged”). Theproportionality principle was carried over to America and codifiedin both colonial law and post‐revolutionary state constitutions.See, e.g., RICHARD L. PERRY, SOURCES OF OUR LIBERTIES 107 (1959)(noting that the Maryland Charter of 1632 permitted punishment if“the Quality of the offense require[d] it”); PA. CONST. §38(1776) (calling for punishments “proportionate to the crime”); S.C.CONST. §XL (1776) (similar).
4. Solem, 463 U.S. at 284 – 85. Admittedly, principles ofproportionality and equality raise difficult issues in sentencing.In measuring the gravity of an offense for proportionalityanalysis, one might look to, inter alia, “the harm caused orthreatened to the victim or society.” Id. at 288 – 93; see alsoRummel v. Estelle, 445 U.S. 263, 275 (1980). Although harm is anotoriously tricky idea, see, e.g., Bernard E. Harcourt, TheCollapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY109 (1999); most agree that basic criminal harms involve acts orthreats of physical violence and the non‐consensual or fraudulentdeprivation of other’s property. See, e.g., PAUL H. ROBINSON &JOHN M. DARLEY, INTUITIONS OF JUSTICE: IMPLICATIONS FOR CRIMINALLAW AND JUSTICE POLICY (2007).
5. See, e.g., DAVID S. LEE & JUSTIN MCCRARY, CRIME,PUNISHMENT, AND MYOPIA (Nat’l Bureau of Econ. Research, WorkingPaper No. 11491, 2005); Paul H. Robinson & John M. Darley, TheRole of Deterrence in the Formulation of Criminal Law Rules: At ItsWorst When Doing its Best, 91 Geo. L.J. 949, 953 (2003); A.Mitchell Polinsky & Steven Shavell, On the Disutility andDiscounting of Imprisonment and the Theory of Deterrence, 28 J.LEGAL STUD. 1, 4 – 7 (1999).
6. See, e.g., Michael Tonry, The Mostly UnintendedEffects of Mandatory Penalties: Two Centuries of ConsistentFindings, 38 CRIME & JUST. 65, 90 – 100 (2009) [Tonry, MostlyUnintended Effects]; JONATHAN P. CAULKINS ET AL., MANDATORY MINIMUMDRUG SENTENCES: THROWING AWAY THE KEY OR THE TAXPAYER’S MONEY’(1997); BARBARA S. VINCENT & PAUL J. HOFER, THE CONSEQUENCES OFMANDATORY MINIMUM PRISON TERMS: A SUMMARY OF RECENT FINDINGS 11 – 16(1994); U.S. SENTENCING COMMISSION, SPECIAL REPORT TO THE CONGRESS:MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM(1991).
7. Mandatory minimums have also been criticized fortheir distortive impact on the federal sentencing guidelines.Justice Breyer, a former U.S. Sentencing Commissioner, has arguedthat mandatory minimums thwart the Commission in its fundamentalduty: “the development, in part through research, of a rational,coherent set of punishments.” Hon. Stephen Breyer, FederalSentencing Guidelines Revisited, 11 FED. SENT’G REP. 180 (1999);see also Hon. Orrin G. Hatch, The Role of Congress in Sentencing:The United States Sentencing Commission, Mandatory MinimumSentences, and the Search for a Certain and Effective SentencingSystem, 28 WAKE FOREST L. REV. 185, 194 (1993). Among other things,mandatory minimums may preclude the Commission from calibratingsentences based on normatively or empirically relevant factors,such as the defendant’s role or culpability in a crime. Alloffenders thus receive the same minimum sentence once the basicstatutory predicates are met, regardless of very real and morallysignificant differences. What is more, mandatory minimums candistort sentences for an entire class of crimes. Given that theCommission seeks continuity and consistency among similar offenses,a mandatory minimum for one crime may generate a type of sentencinginflation, skewing punishment upwards for all related crimes.
8. Most recipients of drug mandatory minimums arecouriers, mules, and street‐level dealers, not kingpins or leadersin international drug cartels. See, e.g., U.S. SENTENCINGCOMMISSION, SPECIAL REPORT TO THE CONGRESS: COCAINE AND FEDERALSENTENCING POLICY 20 – 21, 85 (2007).
9. See, e.g., United States v. Green, 346 F. Supp. 2d259 (D. Mass. 2004) (discussing use of mandatory guidelines toextract plea bargains); STEVE BOGIRA, COURTROOM 302: A YEAR BEHINDTHE SCENES IN AN AMERICAN COURTHOUSE 37 – 48, 83 (2005) (describingtrial tax in state context); see also Ronald F. Wright, TrialDistortion and the End of Innocence in Federal Criminal Justice,154 U. PA. L. REV. 79 (2005).
10. See, e.g., Erik Luna, The OvercriminalizationPhenomenon, 54 AM. U. L. REV. 703, 723 – 24 (2005) [hereinafter Luna,Overcriminalization]; William J. Stuntz, The Pathological Politicsof Criminal Law, 100 MICH. L. REV. 505, 519 – 20 (2001) [hereinafterStuntz, Pathological Politics].
11. See, e.g., United States v. Fontes, 415 F.3d 174(1st Cir. 2005); United States v. Williams, 372 F. Supp. 2d 1335,1339 (M.D. Fla. 2005); United States v. Nellum, 2005 WL 300073(N.D. Ind. 2005); United States v. Angelos, 345 F. Supp. 2d 1227,1253 (D. Utah 2004).
12. See, e.g., United States v. Mercer, 472 F. Supp. 2d1319, 1323 (D. Utah. 2007); David M. Zlotnick, Shouting into theWind: District Court Judges and Federal Sentencing Policy, 9 ROGERWILLIAMS U. L. REV. 645, 674 – 75 (2004); Henry Scott Wallace,Mandatory Minimums and the Betrayal of Sentencing Reform, 40 FED.B. NEWS & J. 158, 161 (Mar./Apr. 1993).
13. Olmstead v. United States, 277 U.S. 438, 485 (1928)(Brandeis, J., dissenting); see also Erik Luna, TransparentPolicing, 85 IOWA L. REV. 1107, 1154 – 65 (2000).
14. Berthoff v. United States, 140 F. Supp. 2d 50, 63n.24 (D. Mass. 2001).
15. Some works have challenged the assumption that theprevious federal sentencing regime was rife with disparity. See,e.g., DOUGLAS MCDONALD & KENNETH CARLSON, U.S. DEP’T OFJUSTICE, BUREAU OF STATISTICS, SENTENCING IN THE FEDERAL COURTS:DOES RACE MATTER’ THE TRANSITION TO SENTENCING GUIDELINES, 1986 – 90,at 24 – 26 (1993); KATE STITH & JOSE A. CABRANES, FEAR OFJUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 105 – 42 (1998).Moreover, there is a lively empirical debate as to whether theguidelines have reduced sentencing differentials. Compare U.S.SENTENCING COMMISSION, DEMOGRAPHIC DIFFERENCES IN FEDERALSENTENCING PRACTICES: AN UPDATE OF THE BOOKER REPORT’S MULTIVARIATEANALYSIS (Mar. 2010), available athttp://www.ussc.gov/general/Multivariate_Regression_Analysis_Report_1.p….; and Ryan W. Scott, The Effectsof Booker on Inter‐Judge Sentencing Disparity, 22 FED. SENT’G REP.104 (2009); with JEFFREY T. ULMER ET AL., DOES INCREASED JUDICIALDISCRETION LEAD TO INCREASED DISPARITY’: THE “LIBERATION” OFJUDICIAL SENTENCING DISCRETION IN THE WAKE OF THE BOOKER/FANFANDECISION (Mar. 2010), available athttp://papers.ssrn.com/sol3/papers.cfm’abstract_id=1577238.
16. See, e.g., THE DECLARATION OF INDEPENDENCE para. 2(U.S. 1776) (“all men are created equal … endowed by theircreator with certain unalienable rights”); JOHN LOCKE, TWOTREATISES OF GOVERNMENT ch. 2, § 6 (1689) (denominating peopleas “all equal and independent”); A.V. DICEY, INTRODUCTION TO THESTUDY OF THE LAW OF THE CONSTITUTION 198 (8th ed. 1915) (the ruleof law means “equality before the law, or the equal subjection ofall classes to the ordinary law of the land”); JOHN RAWLS, A THEORYOF JUSTICE 53, 220, 266 (rev. ed. 1999) (arguing that thepredominant principle in a just society requires that “[e]achperson is to have an equal right to the most extensive total systemof equal basic liberties compatible with a similar system ofliberty for all”); WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY5 (1990) (suggesting that moral equality establishes an“egalitarian plateau” for all modern political theories); FRIEDRICHA. HAYEK, THE CONSTITUTION OF LIBERTY 209 – 10 (1960).
17. Cf. NICOMACHEAN ETHICS, supra note 3. Of course, onecan debate whether particular facts or circumstances should berelevant for purposes of equality in punishment. But as evinced bymany modern sentencing schemes, there appears to be someconcurrence on pertinent factors, such as the gravity of theoffense, the defendant’s criminal history, and his prospects forreform or recidivism. Compare, e.g., 18 U.S.C. § 3553(a)(listing purposes of criminal sentences); with, e.g., AK. STAT.§ 12.55.005 (same).
18. Defendants are not the only ones concerned aboutproportionality and equality in sentencing. When victims of actualviolence notice that their assailant received a shorter term thanimposed on a non‐violent offender via mandatory minimums, themessage received is that their pain and suffering is less importantthan abstract governmental objectives, like winning the “war ondrugs.” See Angelos, 345 F. Supp. 2d at 1251. Over the long haul,conscientious jurors might refuse to render guilty verdicts, notbecause they believe the defendant to be innocent or theallegations unproven, but out of fear that an unjust sentence willnecessarily ensue. See id. at 1252.
19. See, e.g., U.S. GEN. ACCOUNTING OFFICE, FEDERAL DRUGOFFENSES, DEPARTURES FROM SENTENCING GUIDELINES AND MANDATORYMINIMUM SENTENCES, FISCAL YEARS 1999 – 2001 (2003); StephenSchulhofer & Ilene Nagel, Plea Negotiations Under the FederalSentencing Guidelines: Guideline Circumvention and Its Dynamics inthe Post‐Mistretta Era, 91 NW. U. L. REV. 1284 (1997); U.S. GEN.ACCOUNTING OFFICE, MANDATORY MINIMUM SENTENCES: ARE THEY BEINGIMPOSED AND WHO IS RECEIVING THEM’ (Nov. 1993); Ilene H. Nagel& Stephen J. Schulhofer, A Tale of Three Cities: An EmpiricalStudy of Charging and Bargaining Practices under the FederalSentencing Guidelines, 66 S. CAL. L. REV. 501 (1992); BARBARA S.MEIERHOEFER, THE GENERAL EFFECT OF MANDATORY MINIMUM PRISON TERMS:A LONGITUDINAL STUDY OF FEDERAL SENTENCES IMPOSED (1992); SPECIALREPORT, supra note 6, at 47 – 52; VINCENT & HOFER, supra note6.
20. See, e.g., U.S. SENTENCING COMMISSION, STATISTICALOVERVIEW FOR “MANDATORY MINIMUMS AND UNINTENDED CONSEQUENCES,“HEARING BEFORE THE U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON THEJUDICIARY (2009), available athttp://www.ussc.gov/MANMIN/man_min.pdf. Of course, there may be acorrelation without causation — the disproportionate impact ofmandatory minimums on minorities may be based on any number offactors other than race or ethnicity. Nonetheless, a relationshiphas emerged between mandatory punishments and people of color,which can have a profoundly harmful meaning and effect regardlessof causation. See, e.g., Erik Luna, Race, Crime, and InstitutionalDesign, 66 LAW & CONTEMP. PROBS. 183, 183 – 87 (2003).
21. See Stuntz, Pathological Politics, supra note 10, at549.
22. Hon. Anthony M. Kennedy, “Speech at the American BarAssociation Annual Meeting,” Aug. 9, 2003, available athttp://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx’Filen….
Thus, the government, not only has theauthority to prosecute crime and to decide the nature of thecriminal charge to be preferred, but now has the power to determinethe severity of the punishment. As a result, courts are required toreact passively as automatons and to impose a sentence which thejudge may personally deem unjust.
United States v. Sidhom, 144 F. Supp. 2d 41, 41 (D.Mass. 2001).
23. See, e.g., Berger v. United States, 295 U.S. 78, 88(1935); see also Robert H. Jackson, The Federal Prosecutor, 31 J.AM. INST. CRIM. L. & CRIMINOLOGY 3 (1940).
24. See, e.g., Richard T. Boylan & Cheryl X. Long,Salaries, Plea Rates, and the Career Objectives of FederalProsecutors, 48 J.L. & ECON. 627 (2005); Richard T. Boylan,What Do Prosecutors Maximize’: Evidence from the Careers of U.S.Attorneys, 7 AM. LAW & ECON. REV. 379 (2005); Darryl K. Brown,The Decline of Defense Counsel and the Rise of Accuracy in CriminalAdjudication, 93 CAL. L. REV. 1585, 1599 – 1600 (2005); Bruce A.Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS.L. REV. 837, 902 – 03; MICHAEL TONRY, THINKING ABOUT CRIME: SENSE ANDSENSIBILITY IN AMERICAN PENAL CULTURE 207 (2004) [hereinafterTONRY, THINKING ABOUT CRIME]; Daniel S. Medwed, The Zeal Deal:Prosecutorial Resistance to Post‐Conviction Claims of Innocence, 84B.U. L. REV. 125, 134 – 35 (2004); Todd Lochner, Strategic Behaviorand Prosecutorial Agenda Setting in United StatesAttorneysâ€™ Offices: The Role of U.S. Attorneysand Their Assistants, 23 JUST. SYS. J. 271 (2002); ROBERT A. KAGAN,ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 61 – 96 (2001); EdwardL. Glaeser et al., What Do Prosecutors Maximize’: An Analysis ofthe Federalization of Drug Crimes, 2 AM. L. & ECON. REV. 259(2000); David T. Johnson, The Organization of Prosecution and thePossibility of Order, 32 LAW & SOC’Y REV. 247 (1998); DAVIDBURNHAM, ABOVE THE LAW: SECRET DEALS, POLITICAL FIXES, AND OTHERMISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE (1996); Tracey L.Meares, Rewards for Good Behavior: Influencing ProsecutorialDiscretion and Conduct with Financial Incentives, 64 FORDHAM L.REV. 851 (1995); Stanley Z. Fisher, In Search of the VirtuousProsecutor, 15 AM. J. CRIM. L. 197 (1988).
25. Moreover, the vast majority of Americans, bothDemocrats and Republicans, believe that courts are the properbodies to make sentencing judgments. See Families Against MandatoryMinimums Omnibus Survey (Sept. 2008), available athttp://www.famm.org/Repository/Files/FAMM%20poll%20no%20embargo.pdf[her… Omnibus Survey]. The constitutional appointmentprocess helps ensure the bona fides of federal judges. Nominees arevetted and selected by the President, and then put through apainstaking process in the Senate. See, e.g., United States v.Boshell, 728 F. Supp. 632, 637 (E.D. Wash. 1990):
Regardless of which political party holdssway, the process for selecting federal judges is much the same.Nominees are hung out like fresh meat to be poked, prodded andexamined in minute detail as to every aspect of their personal andprofessional lives. The first step is to gain the confidence of anominating senator who will conduct such investigation as he deemsappropriate. Then the FBI, Department of Justice, the American BarAssociation, and the Judiciary Committee get into the act. Onlyafter surviving scrutiny that far will the Senate consider grantingits stamp of approval.
Those who are confirmed are provided constitutionalprotection of salary and tenure to guarantee an independent andimpartial federal court system. See U.S. CONST. art. III, §1.The level of scrutiny placed on these nominees not only verifiestheir qualifications and temperament, but helps make the federaljudiciary the most credible and competent government body in thenation.
26. See, e.g., MONTESQUIEU, supra, at bk. 11, ch. 6; THEFEDERALIST NO. 47 (James Madison).
27. U.S. CONST. arts. I‑III.
28. THE FEDERALIST NO. 51, at 267 (Madison).
29. See, e.g., LEARNED HAND, THE SPIRIT OF LIBERTY 155,164 (3d ed. 1974); Robert M. Howard & Henry F. Carey, Is anIndependent Judiciary Necessary for Democracy’, 87 JUDICATURE 284(2004).
30. See, e.g., THE FEDERALIST NO. 78, at 405 – 06(Hamilton).
31. Sidhom, 144 F. Supp. 2d at 41 (“In the longtradition of the common law, it was the judge, the neutral arbiter,who possessed the authority to impose sentences which he deemedjust within broad perimeters established by thelegislature.”).
32. See, e,g, Koon v. United States, 518 U.S. 81, 113(1996). One district court even described individualized sentencingas “required by the Due Process Clause of the Fifth Amendment.”
The concept of individualized sentencing isdeeply rooted in our legal tradition and is a fundamental libertyinterest. This due process right arises at sentencing becausesentencing involves the most extreme deprivation of personalliberty and therefore calls for a highly individualized processwhere a person must be assessed and sentenced as anindividual.
United States v. Dyck, 287 F. Supp. 2d 1016, 1020 (D.N.D. 2003).
33. Koon, 518 U.S. at 92.
34. Dyck, 287 F. Supp. 2d at 1019.
35. Specifically, federalism was enshrined in the U.S.Constitution by enumerating the powers of the federal government,see U.S. CONST. art. 1, §8; and by declaring that all otherpowers were “reserved to the States respectively, or to thepeople.” U.S. CONST. amend X.
36. See, e.g., THE FEDERALIST NO. 45, at 292 – 93 (JamesMadison).
37. THE FEDERALIST NO. 17, at 120 (AlexanderHamilton).
38. See U.S. CONST. art. 1, §8, cl. 6(counterfeiting); U.S. CONST. art. 1, §8, cl. 10 (piracy,felonies on the high seas, offenses against the law of nations);U.S. CONST. art. 3, §3 (treason).
39. See, e.g., RUSSELL CHAPIN, UNIFORM RULES OF CRIMINALPROCEDURE FOR ALL COURTS 2 (1983).
40. Cohens v. Virginia, 19 U.S. 264, 426, 428(1821).
41. United States v. Lopez, 514 U.S. 549, 561 n.3(1995).
43. At times, both liberals and conservatives haveexpressed such concerns about particular government policies. See,e.g., Jonathan R. Macey, Federal Deference to Local Regulators andthe Economic Theory of Regulation: Toward a Public‐ChoiceExplanation of Federalism, 76 VA. L. REV. 265, 265 (1990); SanfordH. Kadish, The Folly of Overfederalization, 46 HASTINGS L.J. 1247,1247 (1995) [hereinafter Kadish, Overfederalization].
44. See, e.g., SOURCEBOOK OF CRIMINAL JUSTICE STATISTICSONLINE tbls. 5.17.2004, 5.38.2008, 5.44.2004, available athttp://www.albany.edu/sourcebook/; Wallace, supra note 12; UnitedStates v. Snyder, 954 F.Supp. 19 (D. Mass. 1997).
45. See, e.g., Michael W. McConnell, Federalism:Evaluating the Foundersâ€™ Design, 54 U. CHI. L.REV. 1484 (1987).
46. New State Ice Co. v. Liebmann, 285 U.S. 262, 311(1932) (Brandeis, J., dissenting).
47. Consider, for instance, federal efforts to nullifyCalifornia’s medical marijuana law and Oregon’s assisted suicidelaw. See, e.g., Gonzales v. Oregon, 546 U.S. 243 (2006); Gonzalezv. Raich, 545 U.S. 1 (2005); United States v. Oakland CannabisBuyers’ Coop., 532 U.S. 483 (2001).
48. See generally Luna, Overcriminalization, supra note10.
49. Sanford H. Kadish, The Crisis ofOvercriminalization, 374 ANNALS AM. ACAD. POL. & SOC. SCI. 157(1967); see also Sanford H. Kadish, Some Observations on the Use ofCriminal Sanctions in Enforcing Economic Regulations, 30 U. CHI. L.REV. 423 (1963).
50. See, e.g., Luna, Overcriminalization, supra note 10,at 703 — 11, 712 nn.48 – 51.
51. See, e.g., Paul H. Robinson & Michael T. Cahill,The Accelerating Degradation of American Criminal Codes, 56HASTINGS L.J. 633 (2005). But see Darryl K. Brown, Democracy andDecriminalization, 86 TEX. L. REV. 223 (2007).
52. See, e.g., ABA CRIMINAL JUSTICE SECTION, THEFEDERALIZATION OF CRIMINAL LAW 59 — 78 (1999) (providingbibliography).
53. One example is Congress’s enactment of a federal“carjacking” statute. See 18 U.S.C. § 2119 (2000) (imposingfederal criminal liability on those who take motor vehicles byforce, violence, or intimidation); Commonwealth v. Jones, 267 Va.284, 286 (2004) (detailing Virginia’s common law definition ofrobbery, which prohibits the taking of any property of another byviolence or intimidation); Spencer v. Commonwealth, 42 Va. App.443, 448 (2004) (“carjacking is a species of robbery”).
54. See United States v. Park, 421 U.S. 658, 663 — 64,670 — 73 (1975); see generally Paul Rosenzweig, TheOver‐Criminalization of Social and Economic Conduct, 7 HERITAGEFOUND. LEGAL MEM. 1, 3 — 12 (2003).
55. See 18 U.S.C. § 1001(a)(2) (2000)(criminalizing false statements made pursuant to “any matter“within any branch of the federal government); 18 U.S.C. § 1341(2000) (proscribing various fraudulent transactions utilizing thePostal Service or private interstate mail carriers); 18 U.S.C.§ 1343 (2000) (prohibiting similar fraudulent transactionsover interstate wire, radio, and television signals); 18 U.S.C.§ 1346 (2000) (defining “scheme or artifice to defraud” under§ 1341 and § 1343 as including a plan to “deprive anotherof the intangible right to honest services”); see also JeffreyStanden, An Economic Perspective on Federal Criminal Law Reform, 2BUFF. CRIM. L. REV. 249, 289 (1998) (citing over three hundredfederal proscriptions against fraud and misrepresentation).
56. See, e.g., United States v. Welch, 327 F.3d 1081,1090 — 1103 (10th Cir. 2003) (upholding a federal felony indictmentfor violation of Utah’s commercial bribery statute, a misdemeanorunder state law).
57. See, e.g., Pasquantino v. United States , 544 U.S.349 (2005) (affirming a defendant’s federal conviction forviolating Canadian tax law through the use of interstate wires);United States v. McNab, 331 F.3d 1228 (11th Cir. 2003) (upholdingfederal conviction for violation of Honduran fishing regulations);Ellen Podgor & Paul Rosenzweig, Bum Lobster Rap, WASH. TIMES,Jan. 6, 2004, at A14 (criticizing the McNab prosecution and notingthat the Honduran government believed that its laws had not beenviolated and had filed an amicus curiae brief in support of theMcNab defendants).
58. See JOHN S. BAKER, JR., REVISITING THE EXPLOSIVEGROWTH OF FEDERAL CRIMES (2008), available athttp://www.heritage.org/Research/LegalIssues/upload/Im_26.pdf.
59. See ABA CRIMINAL JUSTICE SECTION, supra note 52, at7.
60. See, e.g., Adam Liptak, Right and Left Join Forces,N.Y. TIMES, Nov. 24, 2009.
61. See, e.g., Hearing on Over‐Criminalization ofConduct/Over‐Federalization of Criminal Law before the Subcommitteeon Crime, Terrorism, and Homeland Security of the House JudiciaryCommittee, 111 Cong., 1st Sess. 52 – 67 (2009) (testimony of StephenA. Saltzburg on behalf of the American Bar Association).
62. See, e.g., Adam Liptak, More Than 1 in 100 AdultsAre Now in Prison in U.S., N.Y. TIMES, Feb. 29, 2008 at A14;Michael Tonry & David P. Farrington, Punishment and CrimeAcross Space and Time, in 33 CRIME & JUST. 1, 6 (Michael Tonryand David P. Farrington eds., 2006); Alfred Blumstein et al.,Cross-National Measures of Punitiveness, in 33 CRIME & JUST.347 (Michael Tonry & David P. Farrington eds., 2006);SENTENCING AND SANCTIONS IN WESTERN COUNTRIES (Michael Tonry &Richard S. Frase eds., 2001); see also JAMES Q. WHITMAN, HARSHJUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEENAMERICA AND EUROPE (2003).
63. See, e.g., Heather C. West & William J. Sabol,Prisoners in 2007, BUREAU OF JUST. STAT. BULL., Dec. 2008,available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p07.pdf;SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbl. 6.57; U.S.SENTENCING COMMISSION, FIFTEEN YEARS OF GUIDELINES SENTENCING: ANASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM ISACHIEVING THE GOALS OF SENTENCING REFORM ch.2 (2004); Paul J. Hofer& Courtney Semisch, Examining Changes in Federal SentenceSeverity: 1980 – 1998, 12 FED. SENT’G REP. 12 (1999).
64. Kadish, Overfederalization, supra note 43, at1248‐49.
65. See, e.g., THE 2009 CRIMINAL JUSTICE TRANSITIONCOALITION, SMART ON CRIME: RECOMMENDATIONS FOR THE NEXTADMINISTRATION AND CONGRESS 1 – 12, 30 – 74 (2008); Rachel Brand,Making It a Federal Case: An Inside View of the Pressures toFederalize Crime, 30 HERITAGE FOUND. LEGAL MEM. 1 (2008); EdwinMeese III, The Dangerous Federalization of Crime, WALL ST. J., Feb.22, 1999; ABA CRIMINAL JUSTICE SECTION, supra note 52, at 16 – 17. Inthe words of former U.S. Attorney General Ed Meese,
Because crime, particularly violent orstreet crime, concerns virtually every citizen, congressionalcandidates and officeholders find such legislation politicallypopular. Likewise, Congress frequently criminalizes crimes afternotorious incidents that have received extensive media attention.This type of “feel‐good” legislation often causes the public tofeel that “something is being done” and creates the illusion ofgreater crime control.
66. Sara Beale’s scholarship has been particularlyenlightening on the influence of media (and other non‐legalfactors) on criminal justice policy. See Sara Sun Beale, The NewsMediaâ€™s Influence on Criminal Justice Policy:How Market‐Driven News Promotes Punitiveness, 48 WM. & MARY L.REV. 397 (2006); Sara Sun Beale, Still Tough on Crime’: Prospectsfor Restorative Justice in the United States, 2003 UTAH L. REV.413; Sara Sun Beale, Whatâ€™s Law Got to Do withIt’: The Political, Social, Psychological and Other Non‐LegalFactors Influencing the Development of (Federal) Criminal Law, 1BUFF. CRIM. L. REV. 23 (1997); see also Erik Luna, Criminal Justiceand the Public Imagination, 7 OHIO ST. J. CRIM. L. 71 (2009)[hereinafter Luna, Public Imagination]; Robert Reiner, Media‐MadeCriminality: The Representation of Crime in the Mass Media, in THEOXFORD HANDBOOK OF CRIMINOLOGY 302 (Mike Maguire et al. eds., 4thed. 2007).
67. See, e.g., Luna, Overcriminalization, supra note 10,at 719 – 24.
68. See, e.g., Luna, Public Imagination, supra note 66,at 81 – 85; see generally STANLEY COHEN, FOLK DEVILS AND MORALPANICS: THE CREATION OF THE MODS AND ROCKERS (1972) (articulating atheory of moral panics).
69. See, e.g., Erik Luna, The .22 Caliber RorschachTest, 39 HOUS. L. REV. 53, 61 – 72 (2002); Erik Luna, PrincipledEnforcement of Penal Codes, 4 BUFF. CRIM. L. REV. 515, 537 – 40(2000); see generally JOSEPH R. GUSFIELD, SYMBOLIC CRUSADE: STATUSPOLITICS AND THE AMERICAN TEMPERANCE MOVEMENT (2d ed. 1986)(discussing the symbolic politics underlying alcohol prohibition);KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD (1984)(analyzing symbolic politics in the abortion debate).
70. See, e.g., MODEL RULES OF PROF’L CONDUCT R. 3.8 cmt.1 (2007).
71. See, e.g., KAGAN, supra note 24, at 61 – 96; see alsoMichael Asimow, Popular Culture and the Adversary System, 40 LOY.L.A. L. REV. 653 (2007); Elizabeth G. Thornburg, Metaphors Matter:How Images of Battle, Sports, and Sex Shape the Adversary System,10 WIS. WOMEN’S L.J. 225 (1995); William T. Pizzi, UnderstandingProsecutorial Discretion in the United States: The Limits ofComparative Criminal Procedure as an Instrument of Reform, 54 OHIOST. L.J. 1325 (1993).
72. See, e.g., supra note 24. Moreover, many youngattorneys stay in a prosecutorial office only for a few years,seeking to build their resumes and credentials as a means toachieve a high‐paying job in the private sector. See, e.g., TONRY,THINKING ABOUT CRIME, supra note 24, at 208.
73. William Stuntz’s work has been especially insightfulon these issues. See, e.g., Stuntz, Pathological Politics, supranote 10; William J. Stuntz, Plea Bargaining and CriminalLawâ€™s Disappearing Shadow, 117 HARV. L. REV.2548 (2004); William J. Stuntz, The Political Constitution ofCriminal Justice, 119 HARV. L. REV. 780 (2006).
74. Brand, supra note 65, at 1 – 2.
75. Hon. William H. Rehnquist, Luncheon Address, in U.S.SENTENCING COMMISSION, DRUGS AND VIOLENCE IN AMERICA 283, 287(1993).
76. See, e.g., Rachel E. Barkow, Institutional Designand the Policing of Prosecutors: Lessons from Administrative Law,61 STAN. L. REV. 869, 873 n.14 (2009) (quoting federallawmakers).
77. See 114 CONG. REC. 22,231 (1968) (statement of Rep.Poff).
78. See Gun Control Act of 1968, Pub. L. No. 90 – 618,tit. I, § 102, 82 Stat. 1213, 1223 – 24; Comprehensive CrimeControl Act of 1984, Pub. L. No. 98 – 473, tit. II, § 1005, 98Stat. 2028, 2138; Firearms Owners’ Protection Act, Pub. L. No.99 – 308, § 104(a), 100 Stat. 449, 459 (1986); Act to ThrottleCriminal Use of Guns, Pub. L. No. 105 – 386, &sec