Introduction The Armed Career Criminal Act (ACCA) mandates an enhanced sentence when a felon in possession of a firearm was previously convicted of at least three predicate offenses committed on “occasions different from one another.” This statute transforms a maximum ten-year sentence into a mandatory minimum sentence of fifteen years and a maximum sentence of life. Over twenty years ago in Apprendi v. New Jersey, the Supreme Court held that any fact that increases the maximum sentence for an offense must be charged in the indictment and proven to a jury beyond a reasonable doubt. Currently ..read more

In 1997, the Supreme Court explicitly sanctioned the use of acquitted conduct in sentencing, a “Kafka-esque” policy that judges, practitioners, and scholars have condemned ever since. Despite this backlash and evolving sentencing law, the Court has not revisited its original holding, issued in a per curiam opinion without the benefit of oral argument. Recently, the Seventh Circuit confronted a case that brought into sharp relief the problems with the use of acquitted conduct at sentencing. In United States v. McClinton, the Seventh Circuit had to assess whether the district court erred in cons ..read more

In 1995, the term “superpredator” was coined by political scientist John J. DiIulio, Jr. to describe an alleged wave of “brutally remorseless . . . youngsters who pack[ed] guns instead of lunches” and had “no respect for human life.” The term seized on stereotypes of Black and Brown youth as violent and criminal and fueled a “tough-on-crime” reaction toward these youth. In courtrooms in the late 1990s, the superpredator myth hung over trials and sentencing hearings of juvenile defendants. As a defense lawyer who worked at that time said, the myth “had a profound effect on t ..read more

The Armed Career Criminal Act (ACCA) imposes a minimum fifteen-year sentence for violating 18 U.S.C. § 922(g) after three “violent felony” or “serious drug offense” convictions. The ACCA disproportionately impacts people of color and imposes significant costs on the federal judiciary and the criminal justice system overall. This Essay contributes to ACCA recidivism analysis by studying, for the first time, all people sentenced under ACCA and released in 2009, 2010, and 2011 during an eight-year follow-up period. This Essay uses nonpublicly available criminal history information from the F ..read more

For almost forty years, federal inmates have had very limited access to early release from their sentences, even when those sentences proved to be excessively punitive. But in 2018, Congress passed the First Step Act (FSA), “the most far-reaching overhaul of the criminal justice system in a generation.” Among other things, the FSA amended the compassionate release statute, 18 U.S.C. § 3582, which had previously allowed courts to consider sentence reductions for “extraordinary and compelling reasons” only at the request of the Bureau of Prisons (BOP). The FSA empowers defendants to file co ..read more

The day that ended the Trump Presidency also confirmed its lasting hold on the Eighth Amendment’s future. On November 3, 2020, I argued before the U.S. Supreme Court in Jones v. Mississippi on behalf of Brett Jones, who was sentenced to life without parole as a juvenile. The question presented was: “Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.” The answer: no. The majority behind that answer included all three Trump appointees. Leading up to Jones v. Mississip ..read more

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity.  This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable.  We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan.  We offer t ..read more

At the sentencing stage, federal criminal judges must use the factors outlined in 18 U.S.C. § 3553(a) to guide sentencing decisions. Occasionally, judges must decide whether evidence of speech and association protected by the First Amendment is relevant to sentencing. In Dawson v. Delaware, the Supreme Court partially tackled the issue, finding that while no per se rule prohibited courts from considering evidence of a defendant’s beliefs or associations, the evidence needed to show more than the defendant’s “abstract beliefs,” and needed to be relevant to the crime and the factors outline ..read more

Congress fundamentally changed the punishment of federal crimes in the 1980s and almost entirely for the worse. The Comprehensive Crime Control Act of 1984 (CCCA) cabined the discretion of judges, eliminated parole, and gave greater power to prosecutors (through the use of mandatory minimum sentences, higher maximum sentences, and increased pretrial detention, all of which increased prosecutorial leverage to extract pleas). The Sentencing Reform Act was contained within the larger CCCA, and it created the United States Sentencing Commission, which was initially charged with creating mandatory ..read more

Introduction The Armed Career Criminal Act1×1. Pub. L. No. 98-473, tit. II, ch. XVIII, 98 Stat. 2185 (1984) (codified as amended at scattered sections of the U.S. Code). (ACCA) mandates an enhanced sentence when a felon in possession of a firearm was previously convicted of at least three predicate offenses committed on “occasions different from one another.”2×2. 18 U.S.C. § 924(e)(1). This statute transforms a maximum ten-year sentence into a mandatory minimum sentence of fifteen years and a maximum sentence of life.3×3. See id.; see also United States v. Brame, 997 F.2d 1426, 1428 (11th ..read more