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Congress made its own critical sentencing determinations for a range of crimes by passing sweeping mandatory minimum sentencing laws and harsh penalties for recidivists. This included passing the 'Armed Career Criminal Act' (ACCA) as part of the 1984 package and later amending it in the 'Anti-Drug Abuse Act of 1986' so that the statute imposed a fifteen-year mandatory minimum sentence on recidivist offenders convicted of a federal felon-in-possession offense who had three or more prior \"serious drug\" or \"violent felony\" convictions.

Federal prosecutors wield enormous power. They have the authority to make charging decisions, enter cooperation agreements, accept pleas, and often dictate sentences or sentencing ranges. There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion. As a result, in the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the 95% of cases that are not tried before a federal judge or jury. In a government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. They have the authority to take away liberty, yet they are often the final judges in their own cases. One need not be an expert in separation-of powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Although scholars have made persuasive cases for greater external controls on prosecutors, these calls for reform are unrealistic in the current political climate. The solution must be sought elsewhere. This Article looks within the prosecutor's office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors' offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. The problems posed by federal prosecutors' combination of adjudicative and enforcement functions are the very same issues raised by the administrative state—and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law would not only be effective, it would also be more politically viable than the leading alternative proposals for curbing prosecutorial discretion.

James Forman Jr.'s 'Locking Up Our Own' is that rare nonfiction work that is a page turner even when you know the ending. That is the product of exceptional writing, meticulous historical research, and the deep empathy of the author that gives the book its voice throughout. That is why it was both a worthy recipient the Pulitzer Prize and a feature on 'The Daily Show' with Trevor Noah. It is as insightful as it is entertaining, and if you do not already own a copy, you should.

Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. States have the option of vesting authority in a state-level actor—typically, the attorney general—or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority in that states are weighing the same issues. This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state or federal level). A comprehensive empirical survey of criminal law enforcement responsibility in the states—including a review of state codes and caselaw and interviews with state prosecutors—reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the relatively small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. The state experience thus provides an alternative model of central—local cooperation to the one used at the federal level. The Article explains that a main source of the difference in approach is sentencing policy. In the states, questions of procedure and sentencing are irrelevant to the allocation of power because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides whether to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal prosecutions of local crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government's decision to get involved with questions of local crime.

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist on any of these requirements in noncapital cases. This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court's poor legal reasoning that makes its sentencing jurisprudence misguided. It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If, as a matter of constitutional law, death were no longer different, our criminal justice system would be—and almost certainly for the better.

The goal of this Article is to move the conversation about insulation beyond the traditional hallmarks of independence and identify overlooked elements of agency design, deemed \"equalizing factors,\" that are particularly well-suited to addressing the problem of capture in the context of asymmetrical political pressure. The Article identifies five such equalizing factors that have received little or no attention in the legal literature on independent agencies but that are critically important for insulation against one-sided interest group dominance. The Article then compares the effectiveness of traditional and equalizing factors in the context of consumer protection, an area with the kind of one-sided interest group pressure that is a breeding ground for capture. The Article explores the relationship between the institutional design of the Consumer Product Safety Commission and its effectiveness and uses those lessons to analyze the Bureau of Consumer Financial Protection, the most significant new federal agency created in decades.

The use of the pardon power is a necessary element in a fully functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as many have sought to expand the power of the office in other ways. This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of a clemency commission with a standing, diverse membership. While this commission should have representation from the DOJ and take the views of prosecutors seriously, the commission itself should exist outside the Justice Department, and its recommendations should go directly to the White House. This new model of clemency should also pay attention to data, both to create uniform standards and to focus the use of the pardon power as a management tool. An emphasis on data will also help the new pardon commission make evidence-based decisions about risk and reentry. This is the time to create a better machine of mercy that will serve the Constitution's mandate no matter who holds the presidency.

Kenneth Culp Davis1 The Supreme Court cited the Kenneth Culp Davis quote above when it rejected a challenge to Georgia's capital punishment scheme as racially discriminatory in McCleskey v. Kemp? McCleskey provided the Court with powerful evidence of racial bias in Georgia's administration of the death penalty.3 Specifically, McCleskey relied on a study by David Baldus and his colleagues finding that a defendant who killed a white victim was 4.3 times more likely to get the death penalty than a similarly situated defendant who killed a Black victim.4 The Court assumed the validity of Baldus's findings but still ruled against McCleskey because it accepted disproportionate results as the price to be paid for allowing juries to spare some defendants a death sentence.5 As the opinion by Justice Powell put it, \"a capital punishment system that did not allow for discretionary acts of leniency 'would be totally alien to our notions of criminal justice. Officials have discretion to dispense mercy across the range of decisions in the administration of criminal law and punishment.11 Police officers could elect not to stop or arrest someone. While we could use better data on who is applying for clemency to better analyze grant rates in terms of the total applicant pool, the available information shows that women are more likely to get clemency than men and that white clemency seekers are generally more likely to get relief than Black people and other people of color seeking clemency.17 The most recent comprehensive study looked at data from thirty-nine states and found \"a significant and troubling racial gap in grants,\" with non-white applicants being far less likely to receive relief.18 Studies of clemency grants in particular jurisdictions have mirrored these findings.

When Minnesota created the first sentencing commission in 1978 and the first sentencing guidelines in 1980, it was hard to predict where the guidelines movement would go. More than three decades and twenty sentencing guideline regimes later, it is still not easy to foresee what will become of sentencing commissions and guidelines. The past decade alone has witnessed tremendous changes in sentencing law and policy that were hard to imagine even just a few years before they occurred. The Supreme Court's landmark sentencing decisions in 'Apprendi v. New Jersey, Blakely v. Washington', and 'United States v. Booker', the reform of federal crack cocaine laws, and a financial crisis that has sparked significant sentencing reforms have all been monumental and, to some extent, unexpected developments. These seismic shifts will undoubtedly alter the landscape going forward in similarly unpredictable ways.