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The literature treats overcriminalization (and, at the federal level, the federalization of crime) as a quantitative problem. Legislatures, on this view, have simply enacted too many crimes, and those crimes are far too broad in scope. This Article uses federal criminal law as a basis for challenging this way of conceptualizing the overcriminalization problem. The real problem with overcriminalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of overcriminalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable—its enormous scope and its severity—and made them considerably worse. By changing how they interpret criminal statutes, the federal courts can help overcome overcriminalization even if Congress continues to be unrestrained in its use of the criminal sanction.

Most bodies of substantive law define citizens' obligations. Criminal law is different. Its primary role is not to define obligations, but to create a menu of options for prosecutors. If the menu is long enough - and it usually is - prosecutors can dictate the terms of plea bargains. When that is so, litigants in criminal cases do not bargain in the shadow of the law. Rather, they bargain in the shadow of prosecutors' preferences, budget constraints, and political trends. Law's shadow disappears.

Most analyses of pretextual prosecutions-cases in which prosecutors target defendants based on suspicion of one crime but prosecute them for another, lesser crime-focus on the defendant's interest in fair treatment. Far too little attention is given to the strong social interest in non-pretextual prosecutions. Charging criminals with their \"true\" crimes makes criminal law enforcement more transparent, and hence more politically accountable. It probably also facilitates deterrence. Meanwhile, prosecutorial strategies of the sort used to \"get\" Al Capone can create serious credibility problems. The Justice Department has struggled with those problems as it has used Capone-style strategies against suspected terrorists. That is no surprise: Pretextual charging is primarily a phenomenon of the federal criminal justice system, where law enforcers are less politically accountable than in state justice systems. The solution is to make the federal justice system more accountable. A variety of forces are pushing in that direction; federal courts could help speed the process along with appropriate jurisdiction and statutory interpretation doctrines. If those things happen, pretext cases will become less common, and the justice system will be healthier.

In a speech, US Attorney Eric Holder discusses America's justice system. While the entire US population has increased by about a third since 1980, the federal prison population has grown by almost 800% over the same period.

Felman talks about the Sentencing Commission's 2015 proposed amendments to the federal sentencing guideline for economic crimes which make a number of small but welcome changes that will have an overall ameliorative impact. The proposed amendments did not reduce the guideline's unwarranted emphasis on both loss and multiple specific offense characteristics that, alone and especially in combination, tend to overstate the seriousness of many offenses.

The politics of sentencing over the past three decades have been onesided. Voices in favor of tougher sentences dominate the legislative debate at the state and federal levels. Those advocating on behalf of sentencing reform or alternatives to incarceration garner little attention. Although there are various options for improving deliberation in light of this political imbalance, one mechanism appears to be having an impact in many jurisdictions: a focus on the direct costs of incarceration. There is evidence from the states that tight budgets and a corresponding concern with the rising costs of existing incarceration policies have prompted greater deliberation, a consideration of alternatives to incarceration, and a rethinking of sanctions for some crimes. This focus on costs has served in some sense as a surrogate for typically ignored voices, such as prisoners and their families. When legislators take incarceration costs into account, they necessarily consider more than one side of the sentencing issue, and they begin to see that longer terms of incarceration involve at least some tradeoffs. I explain that looking at costs in this context therefore serves some of the same deliberation-enhancing values that proponents of risk tradeoff and cost-benefit analyses have identified in other regulatory contexts. Firm conclusions must await empirical research, but a preliminary analysis suggests that, because the states seem institutionally predisposed to place greater weight on these costs than the federal government, the state decisionmaking process on sentencing is susceptible to greater balance and is therefore likely to be more informed.

May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is \"yes.\" From the Progressive era to the present, scholars have urged that state courts be allowed to entertain federal criminal prosecutions prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress's unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.

Berman talks about the federal fraud guidelines which have long had many critics among judges and commentators. District judges have called the economic crime guidelines a black stain on common sense and have asserted they can recommend extreme sentencing ranges that are patently irrational on their face. Commentators have been no kinder, asserting that in many cases the guidelines are completely untethered from both criminal law theory and simple common sense, and that they produce sentencing ranges often greater than necessary to satisfy the traditional sentencing goals of specific and general deterrence--or even retribution.

Recent literature on optimal sanctions for corporations has focused on coordination and refinement of criminal, civil, and market‐based sanctions. This paper contributes to emerging evidence on the reputational penalties that public corporations pay for federal crimes. First, it is shown that offenses harming only private parties and not government tend to be addressed through civil or market‐based and not criminal sanctions. Second, when criminal allegations do arise, they are often surrounded by reports of terminated or suspended customer relationships and of management or employee turnover. These reports are more frequent if damaged parties are customers, as in fraud, than if they are third parties, as in environmental crime, and if stock prices decline significantly at the first news of crime. All of these features are consistent with characterizations of reputational penalties found in the literature. Findings on the nonatomistic nature of damaged parties suggest directions for future research.

While the assaults on American Indian and Alaska Native women are more violent than rapes suffered by the general population, their rapes often go unprosecuted. A complex concurrent jurisdictional system and mixed messages about state, federal, and tribal responsibilities lessen accountability for all law enforcement agencies involved and result in a lack of justice for victims. This Comment starts with an overview of the problem of sexual violence in Indian Country to provide a clear picture of the unique problems facing American Indian and Alaska Native rape victims, and an understanding of why modifications to the new legislation are necessary. Part II.A explains the extent of the violence, II.B describes criminal jurisdiction over Indian Country, and 0 illustrates problems of implementation of the current system. This Comment then takes an in-depth look at the Tribal Law and Order Act; Part III.A describes how the Act changes tribal jurisdiction and Part III.B details the practical effect of those changes. Part IV considers the Tribal Law and Order Acts viability as a solution to the problems discussed in Part II. Finally, Part V suggests modifications that would make the legislation more effective in combating sexual violence against American Indian and Alaska Native women. Adapted from the source document.