The Case for Federal Criminal Courts—and Sentencing Reform

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Sculptural Group by Daniel Chester French. Photo by Eden, Janine and Jim via Flickr

The establishment of separate federal courts specializing in criminal cases, backed by a National Court of Criminal Appeals, along with a “modernized regime” of indeterminate sentencing would relieve overcrowded dockets in the federal justice system and reduce the federal prison population, argues a Vanderbilt University law professor.

A growing criminal case backlog has put federal judges in a position where they are forced to speed through evidence just to keep up with the workload, often at the cost of losing focus on civil cases, Christopher Slobogin says in a forthcoming paper for the California Law Review.

Figures cited by Slobogin show the average number of traditional criminal cases has increased by almost 80 percent between 1970 and 2017, but the number of new federal judges has failed to keep track with the heightened workload.

“The federal system is less likely now than it was 50 years ago to forge uniform, nationally applicable law in criminal cases,” Slobogin wrote, noting that this had led to conflicts in the lower  courts that the Supreme Court—usually unsuccessfully—is forced to adjudicate.

“A specialized (federal) judiciary would significantly enhance trial court efficiency and appellate court capacity to produce quality decisions.”

Slobogin proposed establishing a separate federal system for criminal cases, comprising criminal trial courts, circuit courts of appeal and a national Court of Criminal Appeals which he said would ensure consistency in the interpretation of federal law and “minimize the likelihood of poorly reasoned opinions from novices to the field.”

At the same time, he called for replacing the current “much-maligned” system of mandatory federal sentencing guidelines with a different system that would “rejuvenate and modernize the indeterminate sentencing regime that once existed throughout the country.”

Under his plan, judges would have a “diminished” role in sentencing. Instead, “the nature of the offense, not the judge, would automatically place the defendant in one of five or so ranges for felonies.”

He added: “The specific length of sentence would depend, as it once did in virtually every jurisdiction, on the parole board’s assessment of the offender’s progress in rehabilitative program”—a change which he claimed would lead to “less reliance” on prisons  as the primary form of  punishment.

The paper argued that, with the inability of federal courts to process cases efficiently and the mounting number of unresolved conflicts in lower courts, his twin proposals would put the current justice system on track for more consistent and fairer outcomes in the future.

“A separate federal criminal judiciary, together with a modernized indeterminate sentencing regime, could be the beginning of a formula for streamlining the criminal justice process, ensuring high-quality and more consistent judicial decision-making, and reducing our reliance on prison,” the paper said.

Slobogin, the Milton Underwood Professor of Law at the Vanderbilt University Law School,  acknowledged that similar proposals for separate criminal and civil branches of the federal judiciary had been advanced as early as 1996, but he maintained that the current state of the federal justice system, where decisions dragged on for lengthy periods, made a change long overdue.

“Many commentators have noted that the criminal docket is a dominant, or perhaps even the primary, reason for delays in civil cases,” he wrote. “With criminal cases removed, that backlog would abate.”

Slobogin also acknowledged critics of specialization, such as Judge Diane Wood, Chief United States Circuit Judge of the U.S. Court of Appeals for the Seventh Circuit, who  said in a 1997 speech that “expert” criminal court judges could “hide behind specialized vocabulary” to speed up cases.

But he argued that things would only get worse under the current system.

“Without major structural  change in the federal court system of some sort now or in the near future, criminal defendants will continue to pay the price for overworked courts and overflowing prisons,” Slobogin wrote.

The paper’s emphasis on the need for federal court reform captures a widely held sentiment at the grassroots level, particularly in the wake of growing national outrage over racism in the justice system. A 2017 report by the U.S. Sentencing Commission, for example, found federal sentences for African-American men are 19 percent longer than for whites.

“We got a justice system where two people can do the exact same crime, in the exact same place, at the exact same time and get a different sentence,” comedian Chris Rock said in his 2018 Netflix special, Tambourine:

“We gotta change the justice system.”

The full paper can be downloaded here.

One thought on “The Case for Federal Criminal Courts—and Sentencing Reform

  1. My non violent first time offender loved one who had a negative one point on the feds stupid point system is still stuck out in Elkton where he ahs had transfer papers since BEFORE CoVid hit! The judge may of ordered inmates to be moved BUT NO INMATES ARE LEAVING unless in body bags..they are successfully infecting every inmate with Co-vid as now my loved one has tested positive..at 56yr old and with having already had 2previous heart attacks I guess he too will get to leave in a body bag? How will I tell our two sons this as he was always their PRIMARY CAREGIVER?

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