Issues

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda. This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system. The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual. This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and oversubscribing to carceral punishments. These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment. This framework leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of offenders while increasing public safety.

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. This is particularly concerning for the military because the demographics of its jury pool are predominantly white male. The purported need for deviations from the Sixth Amendment right to trial by jury and deference to the military system in order to preserve discipline is undercut by the history of jurisdiction for murder in peacetime. The military has not historically had jurisdiction over murder in peacetime for the majority of this country’s history. These concerns of non-representative courts-martial, coupled with the need for heightened reliability in capital cases, warrant a change to Article 118 (the crime of murder) to only allow capital courts-martial for murder if there is a nexus to war or armed conflict.

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they faced, and the punishments federal judges imposed on them. On demographics, the data suggest that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects, right-wing extremists, or residents of former President Trump strongholds. Rather, it was committed by a cohort that more closely resembles mainstream White America. On punishment, the aggregate results are notable for their leniency. The cases were much more likely to result in a conviction for only a misdemeanor than typical federal criminal cases. Prison sentences were imposed much less frequently than usual for federal criminal defendants, and were much shorter in length. This Article also explores the relationships between defendant age and sex, the sentences that judges imposed, and the sex and political party of the President who nominated the sentencing judge. Several intriguing findings raise questions about scholarship on the politics of sentencing. It also examines where individual judges varied in the imposition of incarceration, sometimes in surprising ways, even accounting for the severity of the offense of conviction. Finally, this Article posits three alternative narratives supported by the data. One is a story of preserving political stability and the rule of law through prosecution, threatened by lenient sentencing. Another is judicial corrective to prosecutorial overreach. A third centers the role of politics, demographics, and bias in the administration of criminal justice.