CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 15, 2024

Merchant on A World Without Federal Sentencing Guidelines

Sam J. Merchant (University of Oklahoma College of Law) has posted A World Without Federal Sentencing Guidelines (Washington University Law Review, Vol. 102, 2025) on SSRN. Here is the abstract:
 
Most participants and observers of the criminal-justice system perceive the Federal Sentencing Guidelines as excessively harsh. A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing? For decades, analysts have resorted to hypothetical cases to explore this issue. But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1. This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.

The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity). Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment). Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, “Capitol Breach” cases, have led to an explosion in the number of these cases in many districts.

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May 15, 2024 | Permalink | Comments (0)

Robinson & Seaman on Electronic Prison and Decarceration

Paul H. RobinsonJeffrey Seaman (University of Pennsylvania Carey Law School and University of Pennsylvania) have posted Electronic Prison: A Just Path to Decarceration on SSRN. Here is the abstract:
 
The decarceration movement enjoys enthusiastic support from many academics and activists who point out imprisonment’s failure to rehabilitate and its potential criminogenic effects. At the same time, many fiscal conservatives and taxpayer groups are critical of imprisonment’s high costs and supportive of finding cheaper alternatives. Yet, despite this widespread support, the decarceration movement has made little real progress at getting offenders out of prison, in large part because community views, and thus political officials, are strongly committed to the importance of doing justice – giving offenders the punishment they deserve – and decarceration is commonly seen as inconsistent with that nonnegotiable principle. Indeed, almost no one in the decarceration movement has attempted to formulate a large-scale decarceration plan that still provides for what the community would see as just punishment.

In this Article, we offer just such a plan by demonstrating that it is entirely possible to avoid the incarceration of most offenders through utilizing non-incarcerative sanctions that can carry a total punitive effect comparable to physical prison.

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May 15, 2024 | Permalink | Comments (0)

Tuesday, May 14, 2024

Grewal on The President's Criminal Immunity

Andy Grewal (University of Iowa - College of Law) has posted The President's Criminal Immunity (77 SMU L. Rev. F. -- (forthcoming, Jun. 2024)) on SSRN. Here is the abstract:
 
This Article addresses a monumental question that the Supreme Court will soon decide: Does the President enjoy criminal immunity for her official acts? This Article argues that she does.

The potential criminal immunity for official acts has drawn exceptionally sharp critiques. Some scholars believe that the immunity is nonsensical, absurd, or downright offensive. Judge Florence Pan of the D.C. Circuit even posited that criminal immunity would allow the President to murder her political enemies with SEAL Team 6.

This Article shows that the critics are profoundly mistaken. Criminal immunity for a President’s official acts finds a strong foothold in Supreme Court jurisprudence. As important, criminal immunity for official acts applies more narrowly than the critics believe. Immunity would allow a President to fearlessly exercise her constitutional prerogatives but would not allow her to bribe, steal, or murder.

May 14, 2024 | Permalink | Comments (0)

Atrey on Cybercrime

Ishan Atrey (University of Petroleum & Energy Studies (UPES) School of Law) has posted Cybercrime and its Legal Implications: Analysing the challenges and Legal frameworks surrounding Cybercrime, including issues related to Jurisdiction, Privacy, and Digital Evidence (International Journal of Research and Analytical Reviews, July 2023, Volume 10, Issue 3) on SSRN. Here is the abstract:
 
This research paper delves into the complex landscape of cybercrime and its legal implications within India. The advent of the digital age has given rise to numerous challenges for law enforcement agencies, policymakers, and legal systems worldwide. This paper examines the multifaceted issues surrounding cybercrime, focusing on jurisdictional challenges, privacy concerns, and the admissibility of digital evidence. Through an analysis of existing legal frameworks, case studies, and scholarly research, this paper aims to shed light on the evolving nature of cybercrime and the legal responses required to address this growing threat. Cybercrime has emerged as one of the most significant threats in the digital age. Cyberattacks' frequency, scale, and sophistication continue to increase, affecting individuals, organisations, and governments worldwide. It is essential to comprehend the nature of cybercrime to develop effective strategies to prevent, detect, and respond to these threats. cybercrime represents a significant challenge in the digital era, requiring a comprehensive understanding of its nature, scope, and legal implications. By studying cybercrime, researchers, policymakers, legal professionals, and law enforcement agencies can develop proactive measures to combat this growing threat, safeguard individuals and organisations, and ensure a secure digital environment. This research paper seeks to provide insights into the evolving nature of cyber threats, identify areas of improvement in legal frameworks, and offer recommendations for enhancing responses to cybercrime regarding jurisdictional issues, privacy concerns, and the admissibility of digital evidence. privacy concerns in cybercrime investigations require striking a balance between effective law enforcement and protecting individual privacy rights. This can be achieved through adherence to legal safeguards, such as obtaining proper warrants, conducting targeted surveillance, minimising data collection and retention, implementing strong security measures, and ensuring transparent oversight and accountability mechanisms.

May 14, 2024 | Permalink | Comments (0)

Hoag-Fordjour on Ineffective Assistance of Counsel

Alexis Hoag-Fordjour (Brooklyn Law School) has posted Back to the Future: (Re)Constructing Ineffective Assistance of Counsel (UC Davis Law Review, Vol. 58, 2025) on SSRN. Here is the abstract:
 
This Article explores a new way of determining whether a criminal defendant received constitutionally ineffective assistance of counsel. Under existing law, a defendant must show (1) that counsel’s performance was deficient, and (2) that such deficiency resulted in prejudice. Defendants have encountered great difficulty in meeting this two-prong standard. Even when a defendant demonstrates deficient performance, a reviewing court will deny the claim if the defendant is unable to prove prejudice. The standard fails to adequately protect defendants against poor representation, eroding defendants’ primary protection against unfair and unjust proceedings.

The current standard is young and ripe for reimagining. In constructing a new standard, this Article relies on the aims espoused during Reconstruction, a period in which lawmakers extended citizenship, rights, and legal protections to formerly enslaved people. Beyond adding text, the Reconstruction amendments had the potential to transform constitutional law. Combined, the Reconstruction amendments ended slavery, extended citizenship to formerly enslaved people, and guaranteed enslaved people protections against the deprivation of certain fundamental rights, including life and liberty. Lawmakers intended these rights to be unencumbered. Rooted in the spirit of Reconstruction, the new ineffectiveness standard removes a barrier to relief: the prejudice requirement. Instead, defendants would need only to demonstrate that counsel’s conduct was deficient relative to prevailing professional norms and considering the circumstances of the case.

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May 14, 2024 | Permalink | Comments (0)

Monday, May 13, 2024

Swisher on Algorithmic Judicial Ethics

Keith Swisher (University of Arizona - James E. Rogers College of Law) has posted Algorithmic Judicial Ethics (Wisconsin Law Review, Forthcoming 2024) on SSRN. Here is the abstract:
 
Judges have a brand new bag—an algorithmic accessory in criminal adjudication. It scores criminal defendants, aiming to inform judges which defendants are likely reoffenders or flight risks and which ones are not. The downsides, however, include that the algorithms score defendants primarily on the basis of other defendants’ (mis)conduct and that certain races effectively score lower than other races. This article explores these algorithmic developments in criminal courts across the country and makes four contributions: (1) a survey and preliminary application of judicial ethics to this development; (2) a preliminary moral argument, informed by related judicial ethics and legal standards, suggesting that judges should use these algorithmic tools only to help, not hurt, individual defendants; (3) an approach to judicial decision-making in the shadow of structural injustice that promises to deal less algorithmic damage to defendants and their family members; and (4) a technical constraint on algorithmic design that ensures equal (indeed, better than equal) protection on the basis of race.

May 13, 2024 | Permalink | Comments (0)

Conklin on Rap Lyrics at Trial

Michael Conklin (Angelo State University - Business Law) has posted The Admissibility of Rap Lyrics in Court: A Review of As We Speak (J. OF L. & SOC. DEVIANCE, Forthcoming) on SSRN. Here is the abstract:
 
The use of rap lyrics at trial is a timely issue given the current confluence of events, including the Young Thug trial, the Black Lives Matter movement, a growing “tough on crime” sentiment due to rising violent crime, the introduction of the Restoring Artistic Protection (RAP) Act in Congress, and societal debate about separating the artist from the art. This review provides a critical analysis of the 2024 documentary As We Speak: Rap Music on Trial, a film that advocates against the use of rap lyrics as evidence in criminal trials. The cinematography is beautiful, creating an aesthetically pleasing experience. And it is engagingly structured as a road movie with the guide, rapper Kemba, taking the viewer to Chicago, Atlanta, Los Angeles, New York City, and London to interview rappers and legal experts. This results in a powerful documentary that has received glowing reviews from both film critics and audiences. Unfortunately, while the film’s subject is certainly a legitimate topic of discussion, the film suffers from significant shortcomings. This review will analyze how the leading study regarding rap on trial is deceptively presented, misrepresentations of the topic as a free-speech issue whereby rap lyrics are “criminalized,” ineffective attempts to analogize rappers to Shakespearian actors, and claims regarding race that are contrary to the evidence.

May 13, 2024 | Permalink | Comments (0)

van Rooij et al. on How Punishment Affects Crime

Benjamin van RooijMalouke Esra Kuiper, and Alexis Piquero (University of California, Irvine School of Law, University of Amsterdam - Faculty of Law, University of Amsterdam - Faculty of Law and University of Miami Department of Sociology) have posted How Punishment Affects Crime: An Integrated Understanding of the Behavioral Mechanisms of Punishment on SSRN. Here is the abstract:
 
Legal punishment, at least in part, serves a behavioral function to reduce and prevent offending behavior. The present paper offers an integrated review of the diverse mechanisms through which punishment may affect such behavior. It moves beyond a legal view that focuses on just three such mechanisms (deterrence, incapacitation, and rehabilitation), to also include other socializing, delegitimizing, compliance obstructing, and offence adapting mechanisms in how punishment may influence offending. The paper assesses the quality of existing empirical knowledge about the different effects of punishment and the conditions under which these effects exist. It concludes that punishment has at least thirteen different influences on crime prevention, five positive and eight negative. It shows that such effects are conditional, depending on the offender, offence, punishment, and jurisdiction. Furthermore, it shows that the effects vary in their directness, proximity, onset and longevity. It concludes that our current empirical understanding does not match the complex reality of how punishment comes to shape crime. In light of this, the paper develops a research agenda on the integrated effects of punishment moving beyond limited causal mechanisms to embrace the fuller complexity of how sanctions shape human conduct by adopting a complexity science approach.

May 13, 2024 | Permalink | Comments (0)

Sunday, May 12, 2024

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Brain Science for Lawyers, Judges, and Policymakers

Vanderbilt University - Law School & Dept. of Biological Sciences, York University, University of Minnesota Law School, Second Judicial District Court Judge, State of Colorado and Stanford University - Department of Psychology
316
2.

Criminal Law Minimalisms

Washington University in St. Louis - School of Law
220
3.

Safe-T for Whom? How Legislative Overreach Transformed Criminals into Victims

Southern Illinois University - Southern Illinois University School of Law
185
4.

A Sentiment Analysis on the Resumption of ICC Investigation on the Philippine Drug War

University of Mindanao and University of the Immaculate Conception
181
5.

Police Vigilantism

Florida State University College of Law
180
6.

Ad Hoc Constructions of Penal Statutes

Pepperdine University - Rick J. Caruso School of Law
177
7.

Prosecutors in Robes

The Pennsylvania State University (University Park) – Penn State Law
171
8.

Criminal Recordkeeping

Emory University School of Law
138
9.

Beyond Caste Carcerality: Re-imagining Justice in Sexual Violence Cases

Columbia Law School
138
10.

Inchoate Offences: Valid Crime or Unnecessary Constraint?

University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University
126

May 12, 2024 | Permalink | Comments (0)

Saturday, May 11, 2024

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
Vanderbilt University - Law School & Dept. of Biological Sciences, York University, University of Minnesota Law School, Second Judicial District Court Judge, State of Colorado and Stanford University - Department of Psychology

Date Posted: 15 Mar 2024

314
2.
Duke University School of Law, University of Chicago - Law School and University of Chicago - Law School

Date Posted: 20 Mar 2024 

234
3.
Washington University in St. Louis - School of Law

Date Posted: 19 Mar 2024

220
4.
William & Mary Law School

Date Posted: 11 Mar 2024 

212
5.
Southern Illinois University - Southern Illinois University School of Law

Date Posted: 20 Feb 2024 [7th last week]

185
6.
Florida State University College of Law

Date Posted: 08 Mar 2024 [8th last week]

180
7.
The Pennsylvania State University (University Park) – Penn State Law

Date Posted: 18 Mar 2024 [9th last week]

170
8.
King's College London - The Dickson Poon School of Law

Date Posted: 19 Feb 2024 [new to top ten]

154
9.
University of Pittsburgh - School of Law

Date Posted: 14 Mar 2024 [new to top ten]

129
10.
Duke University School of Law

Date Posted: 19 Mar 2024 [new to top ten]

117

May 11, 2024 | Permalink | Comments (0)

Friday, May 10, 2024

Davidson on Administrative Enslavement

Adam Davidson (The University of Chicago Law School) has posted Administrative Enslavement (Columbia Law Review, Vol. 124, No. 3, 2024) on SSRN. Here is the abstract:
 
There are currently over a million people enslaved in the United States. Under threat of horrendous punishment, they cook, clean, and even fight fires. They do this not in the shadow of the law but with the express blessing of the Thirteenth Amendment’s Except Clause, which permits enslavement and involuntary servitude as punishment for a crime.

Despite discussions of this exception in law reviews, news reports, and Netflix documentaries, few have recognized that this enslavement happens silently. No prosecutor, judge, or defense attorney tells convicted people that they will be enslaved as punishment for their crime. It is only once they are incarcerated that a prison administrator informs them they will be forced to work.

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May 10, 2024 | Permalink | Comments (0)

Brooks on State Misconduct Mitigating Individual Punishment

Thom Brooks (Durham University - Law School) has posted The Relevance of State Misconduct for Mitigating Individual Punishment (In Julian V. Roberts, Jesper Ryberg and Leo Zaibert (eds.), Responding to the Culpable State: Is Sentence Mitigation Appropriate? Oxford: Hart, 2024(forthcoming)) on SSRN. Here is the abstract:
 
This chapter is focused on the possible relevance of state misconduct for mitigating individual sentences. I argued that state misconduct can justify mitigation where a sufficient connection is made between the state misconduct and the offender in one of two ways. First, this may take the form of systematic discrimination whether or not intentional where offenders are subjected to overly harsh punishments as a result of bias against their protected characteristics, like race. Secondly, this may take the form of deliberate bad faith that may not be systematically applied, but no less problematic.

It is argued that state misconduct matters for mitigation as a form of provocation that impacts culpability. This might be understood differently by different penal theories, whether desert-based or consequentialist. Either way, this view of mitigation is coherent with a variety of very different penal theories even if each might justify mitigation in different ways.

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May 10, 2024 | Permalink | Comments (0)

Meeler & Todres on Youth Justice and Deprivation of Liberty

Lauren Meeler and Jonathan Todres (affiliation not provided to SSRN and Georgia State University College of Law) have posted Deprivation of Liberty as a Last Resort: Understanding the Children's Rights Law Mandate for Youth Justice (Stanford Journal of International Law Vol. 60, pp 1-27 (2024)) on SSRN. Here is the abstract:
 
International law is consistent in affirming that the deprivation of liberty should be a “last resort” for children. This norm is affirmed by the extensive evidence that detention is detrimental to the wellbeing and healthy development of young people. Yet while it is broadly understood that detention of children and youth should be uncommon, there is much less clarity around what the “last resort” mandate means in practice—that is, under what circumstances is detention permissible and what, if anything, must states do prior to considering the detention of a young person. Drawing on scholarship on criminal justice and human rights, the work of international treaty bodies, and other human rights sources, this Article explores the meaning of “last resort” under international law, focusing in particular on the use of arrest, detention, and imprisonment in the youth justice context. The Article then proposes a framework for operationalizing the “last resort” mandate so that governments can respond in a more rights-affirming manner to children who are in conflict with the law.

May 10, 2024 | Permalink | Comments (0)

Thursday, May 9, 2024

Farber on Police Reports and Review of Video Evidence

Hillary B. Farber (University of Massachusetts School of Law at Dartmouth) has posted Write Before You Watch: Policies for Police Body-worn Cameras That Advance Accountability and Accuracy (61 American Criminal Law Review 60 (2024)) on SSRN. Here is the abstract:
 
In the wake of high-profile killings and abuse by police officers over the past few years, the public has come to expect that officers will be equipped with body-worn cameras (BWCs). These cameras capture and preserve encounters between police and civilians, and the footage they record often becomes critical evidence in criminal, civil, or administrative proceedings. Reformers believe BWCs can improve police accountability, build public trust in police, and potentially reform police behavior.

Considering the reliance on BWCs, a key question has emerged: should officers be allowed to review BWC footage before preparing a report or giving a statement, or only after doing so? The question comes as policymakers across the country, from the White House to local municipalities, are attempting to reform criminal justice policy. Given that police departments design their internal policies, it is perhaps unsurprising that most of the nation’s largest police departments using BWCs permit their officers, in most instances, to view the footage before writing an incident report. But this policy has profound negative consequences, both for the accuracy of police reports and the potential for police accountability. As cognitive science recognizes, an officer’s memory of an incident is susceptible to being altered by details in BWC footage that the officer may not have noticed or remembered. These differences could be legally and factually significant. Moreover, permitting officers to view BWC footage before writing their reports undermines public confidence that officers will be truthful in memorializing their own perception of events. Access and exposure to the footage creates the appearance, if not the likelihood, that an officer will conform their report to match the recording.

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May 9, 2024 | Permalink | Comments (0)

Jiang on Rape and Authoritarian Legality in China

Jue Jiang (SOAS - University of London) has posted Casting Gender Light on Authoritarian Legality in China: An Inquiry of Sentencing and Punishment in Rape Cases (The Albert Hirschman Centre on Democracy series Law and Authoritarianism, 2023) on SSRN. Here is the abstract:
 
This research provides a rare yet much-needed gender perspective on authoritarian legality in China, drawing upon sentencing and punishment for the crime of rape. First, several controversial cases – cases extensively discussed in the media or online – are reviewed to identify the attributes that triggered the controversy. Four categories of cases were selected, based on four sexual relationships embodying various power dynamics between the offender and the victim: public official and citizen/sex worker; husband and wife; adult and child; caregiver and dependent. A search was then made for “like cases” using these attributes as keywords in the China Judgments Online database. Finally, a qualitative analysis of these cases was carried out, in particular of the judicial reasoning provided by the judges, to explore how these controversial cases are handled by the judiciary, and the implications of this on the interplay between gender, sex, sexuality and authoritarian power in the context of authoritarian legality in China. This research argues that the criminal justice system in China embodies and reinforces a particular gendered order and “sex hierarchy,” instrumentalised by the state to maintain its authoritarian power.

May 9, 2024 | Permalink | Comments (0)

Opinion on hearing required in forfeiture proceedings

Justice Kavanaugh delivered the opinion of the Court in Culley v. Marshall. Justice Gorsuch concurred, joined by Justice Thomas. Justice Sotomayor, joined by Justice Kagan and Jackson, dissented.

May 9, 2024 | Permalink | Comments (0)

Booth on Policing after Slavery

Jonathon Booth (University of Colorado at Boulder - University of Colorado Law School) has posted Policing after Slavery: Race, Crime, and Resistance in Atlanta (University of Colorado Law Review, Forthcoming) on SSRN. Here is the abstract:
 
This Article places the birth and growth of the Atlanta police in context by exploring the full scope of Atlanta’s criminal legal system in the four decades after the end of slavery. To do so, it analyzes the connections Atlantans made between race and crime, the adjudication and punishment of minor offenses, and the variety of Black protest against the criminal legal system. This Article is based in part on a variety of archival sources, including decades of arrest and prosecution data that, for the first time, allow for a quantitative assessment of the impact of the new system of policing on Atlanta’s residents.

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May 9, 2024 | Permalink | Comments (0)

Wednesday, May 8, 2024

Feingold on Carbado on The Fourth Amendment

Jonathan Feingold (Boston University School of Law) has posted Constitutionalizing Racism (104 Boston University Law Review Online 1 (2024)) on SSRN. Here is the abstract:
 
"Unreasonable" is Devon Carbado at his best. Through accessible prose, carefully crafted hypotheticals, effective visualizations, and some cross-examination (for the reader), Carbado reintroduces us to the Fourth Amendment. In arresting detail, "Unreasonable" exposes how the Supreme Court has turned the Fourth Amendment against “the people”—and specifically, against people racialized as Black. Part of the “Bill of Rights,” the Fourth Amendment was adopted to protect “the right of the people” from police overreach. Yet over the past half-century, the Supreme Court has systematically repositioned the Fourth Amendment as a weapon of police power. Or as Carbado argues: whereas many assume that the Bill of Rights was intended to “protect and empower ‘we the people,’ [Unreasonable] contends that Fourth Amendment law overly protects and empowers ‘we the police.’”

May 8, 2024 | Permalink | Comments (0)

Franssen on Cross-Border Gathering of Electronic Evidence in the EU

Vanessa T.O. Franssen (University of Liège - School of Law) has posted Cross-border Gathering of Electronic Evidence in the EU: Toward More Direct Cooperation under the e-Evidence Regulation (BERGSTRÖM, M., MITSILEGAS, V. and QUINTEL, T. (eds), Research Handbook on EU Criminal Law, 2nd ed., Edward Elgar, Forthcoming) on SSRN. Here is the abstract:
 
This chapter will examine the legal framework of the European Union (EU) on cross-border gathering of electronic evidence. It will first present some of the main challenges encountered by police and judicial authorities when seeking to obtain electronic evidence and the traditional tools that are at their disposal for collecting such evidence in a cross-border context (Part 2). Second, it will turn to the so-called e-Evidence Proposal of the European Commission, which aimed to facilitate the cross-border gathering of electronic evidence based on direct cooperation with service providers. The legislative context of this proposal and ensuing institutional discussions will be briefly discussed (Part 3). In Part 4, the adopted e-Evidence Regulation will be analysed in more details and critically assessed in light of the challenges it intends to address. Then, before concluding, the chapter will highlight a few remaining challenges, some of which may become more tangible once the e-Evidence Regulation will be applicable (Part 5).

May 8, 2024 | Permalink | Comments (0)

Merchant on The Severity of the Jan. 6 Sentences

Sam J. Merchant (University of Oklahoma College of Law) has posted The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases on SSRN. Here is the abstract:
 
Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders. Some have even suggested a racial or political motivation for lighter sentences. Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason—the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021. There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.” English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order. Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

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May 8, 2024 | Permalink | Comments (0)