Criminal Law Professors Should Think Globally But Write Locally

Don’t ignore the federal side, but state and local issues can be just as important.

In this post I will focus on two sets of data that, in my view, illustrate the disproportionate focus on the federal system: articles written about the Armed Career Criminal Act (ACCA) and articles written about Blakely and Booker (two cases that affected state and federal sentencing guidelines under the same rationale). I will also suggest some theories about why legal scholars focus on the federal system—but, just to preview, it’s not because the federal system is bigger (it’s only about 13% of the total prison population and there are no jail sentences or parole), nor is it because there’s a Supremacy Clause in criminal law.

The ACCA. Here is what I learned from the Quick Facts briefing about the ACCA. In 2015, just over 71,000 people were sentenced in the federal system. 428 of them were sentenced under the ACCA, or about .6% of the total. While there was a recent notable case about the ACCA in the U.S. Supreme Court—Johnson v. United States (pdf) (holding that the residual clause of the statute violates due process)— this case was about statutory construction of a federal statute. That is, it only applies to the federal system as part of the sentencing of federal offenders. It doesn’t apply to states—unlike, say, a case decided on 4th Amendment grounds.

But this one statute, applied to a few hundred people in the federal system each year, has attracted a staggering number of articles. I had a research assistant search Westlaw for “Armed Career Criminal Act.” She found 588 law review articles.   That’s right—more than one article for every person sentenced in 2015! For those of you who don’t have access to Westlaw, Google Scholar searches turn up 51 articles with the ACCA in their titles, and over 700 articles that contain the phrase “Armed Career Criminal Act” (though not all of these are law review articles).   I get that the ACCA is relatively old (it passed in 1984), and that, again, something need not be popular to be interesting. But other states have very similar laws. Florida has a “10-20-life” gun enhancement law and California has a “Use a Gun and You’re Done” law, both of which mirror the ACCA—even though the interpretation of these statutes isn’t governed by cases like Johnson. Yet only 28 articles in the LexisNexis database address Florida’s law, for example.

Booker and Blakely.  The much bigger problem—though without a Quick Facts news blast to make it timely—is the disproportionate scholarship on these two cases. Both cases applied the holding in Apprendi v. New Jersey (all facts which increase the statutory maximum must be admitted by the offender or found by a jury beyond a reasonable doubt). Blakely, which was first, applied Apprendi to Washington state’s sentencing guidelines. The U.S. Supreme Court held that statutory scheme, which allowed judges to increase sentences based on facts found by a judge, violated the 6th Amendment. Booker, which was issued about 6 months later, held the exact same thing with respect to the (federal) U.S. Sentencing Guidelines, and applied Blakely in the very first paragraph (“the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines.”).   Booker was also notable for its bizarre alignment of justices (Ginsburg joined a 5-4 majority in the holding, and a mirror/opposite 5-4 majority in the remedy, which rendered the Sentencing Guidelines advisory), but, as with the ACCA cases, the unique part of the decision had only to do with the construction of a federal statute. (If you really want more of my opinion on this, please see my article Heinous, Atrocious, and Cruel.) The details aren’t ultimately important—just keep in mind that both cases applied the same law, the one applied to the states was first, they reached the same result, and Blakely applied more widely (including not just the states but the federal guidelines, as in Booker itself).

Nevertheless, Booker has been the subject of much more criminal law scholarship than Blakely. Using Westlaw, Booker is mentioned in 2,634 law reviews, Blakely in 1420. 241 articles mention Booker in the title; 138 mention Blakely. Analyzing for depth of treatment in Westlaw, Booker still comes out on top: 897 articles mention the case at least 10 times (489 for Blakely), 532 journals mention it at least 20 times (292 for Blakely), and 209 journals mention it at least 50 times (121 for Blakely).

It bears repeating that the federal system has fewer cases than state systems, that there are more state systems than federal ones (50 to 1!), that there are many more state judges than federal ones, and that local law enforcement (including prosecutors) vastly outnumber federal ones.

So what explains the difference? Here I only have some guesses. Many law professors (including me) clerked at the federal level, so it’s the system with which they’re most familiar. There aren’t as many state court clerkships, nor are they as prestigious as federal ones. The second-year law students who make many of the publication decisions are doubtless also focused on obtaining federal clerkships, which might bias them against state and local scholarship. It is also true that there are great articles written about the federal system, and the federal system could, in theory, be held up as a model (that is certainly what many people whom I greatly respect think about the federal guidelines, and I, for one, deeply appreciate their policy and data reports, which I wish more states would emulate).

But the federal system isn’t more complex than local systems. Issues of policing are much more pronounced at the local level, as is the relationship between politics and crime policy (DA’s are always and judges are often are elected locally, while federal prosecutors are judges aren’t). Anyone interested in moving the needle on mass incarceration needs to go where the prisoners are—and that’s the states. This analysis doesn’t even include the millions of people sentenced to jail terms or those released on parole—or the fact that federal probation is such a small part of the probation population as a whole. I think there are lots of fascinating issues at the state and local level—and they have the advantage of being relatively un(der)explored. If Brandeis is right that states are the laboratories of democracy, legal academics should follow the example of criminologists and others and heed the criminal justice experiments taking place there.

My point is not that the federal system should be ignored, but I think there is so much more going on elsewhere—and so much less legal scholarship being written about it—that I hope to encourage others to investigate it, joining the ranks of scholars like Lisa Miller, Mona Lynch, David Weisburd, John Pfaff (who has a new book coming out), and others.  My own most recent work is about bail: it affects everyone who is arrested, and the number of folks processed in large counties in California rival the total number sentenced under the federal system. But most of the insights I’ve learned come from studying just one county in depth, copying (in my own inadequate way) the same method behind the pioneering studies of pretrial release in Philadelphia and New York so many years ago. So, to paraphrase a local (if antebellum) saying from here in California, there’s gold in them near hills. Why not look for it, especially since the federal system has already been claimed?

[Cross-posted at The Reality-Based Community]

David Ball

David Ball is an Associate Professor at Santa Clara School of Law. He writes and teaches primarily in the fields of criminal law and criminal procedure, with a special focus on sentencing and corrections. He also serves as the Co-Chair of the Corrections Committee of the American Bar Association.