All Things Considered: The Effect on Tribal Sovereignty of Using Tribal Court Convictions in United States Sentencing Guideline Calculations

By Neil Fulton*

Volume 46.2

*Neil Fulton is the 14th Dean of University of South Dakota School of Law. He is a graduate of Yale University and the University of Minnesota School of Law. Prior to becoming Dean, he was Federal Public Defender for North and South Dakota. He worked regularly with sentencing issues from Indian Country and was a member of the United States Sentencing Commission’s ad hoc and standing Tribal Issues Advisory Groups. The author wishes to thank his friends in the FPD community for their work and for helpful comments on initial drafts of this article.


Criminal justice in the United States is a balancing act between local and national enforcement, policies, and priorities. The common refrain “don’t make a federal case out of it” is perhaps nowhere as palpable a consideration as in criminal prosecutions. Elevating a case into the courts of the United States is a serious consideration for the Department of Justice.[1] In addition to front-end decisions about investigation and prosecution of offenses, the federal and local criminal justice systems are deeply intertwined through the consideration of prior convictions in determining federal sentences.[2] Which local convictions are given weight in federal sentencing and under what circumstances are central questions[3]

Both of these questions are common and complicated in the relationship between the United States and Indian tribes. Indians are subject to federal court jurisdiction for a broad swath of crimes that would typically be left to state courts when committed by non-Indians.[4] Under the separate sovereigns doctrine, Indians may be prosecuted in tribal court and federal court for the same conduct.[5] Tribal court convictions are not automatically included in the calculation of criminal history for federal sentencing as are prior federal or state court convictions.[6]

A fundamental question in federal criminal sentencing is what convictions are counted to determine criminal history based on their type, age, court of origin, and other factors.[7] A fundamental question in federal Indian law is what level of tribal government sovereignty is recognized and accommodated.[8] This article explores the intersection of those questions. It does so in light of a recent reevaluation by the United States Sentencing Commission (U.S.S.C) of how tribal court convictions are factored into criminal history calculations in federal sentencing. It seeks to explore different visions of “sovereignty” attributed to tribal governments by scholars and how those visions are effectively or ineffectively advanced by federal sentencing policy.

Part I of this article briefly traces the development of the relationship between the governments of the United States and Indian tribes. Part II traces the history of the United States Sentencing Guidelines. In particular, it reviews the history of the debate regarding how to consider tribal court convictions in calculating criminal history scores for federal sentences and the work of the ad hoc Tribal Issues Advisory Group (“TIAG”) appointed by U.S.S.C. in 2016 to consider sentencing issues relating to Indians and Indian Country. Part III considers how tribal sovereignty relates to federal sentencing policy. That section identifies and assesses competing views of tribal sovereignty and how those views relate to the consideration of tribal court judgments in federal sentencing. Part IV considers how the policy proposals recommended by TIAG and considered by the U.S.S.C. advance or fail to advance these visions of tribal sovereignty. Part V proposes a different vision of what tribal sovereignty can be in the context of federal sentencing and assesses whether the TIAG proposals effectively advance this vision of sovereignty. Lastly, it briefly discusses if this view of sovereignty is normatively superior.

It is an important caveat at the outset that this article includes both broad and highly specific considerations. Considering how tribal and federal courts interact and view their respective judgments goes to the heart of the right of tribes to self-determination and self-governance. In that sense, the article puts on the table the most fundamental questions of federal Indian law. However, these issues are assessed through the very specific lens of how prior convictions from tribal courts are, or are not, considered by federal courts in imposing sentences in criminal cases. In that sense, the article deals with a very discrete question.

But we must begin at the beginning. The current state of affairs is, inevitably, a product of history. The future requires some understanding of that history and, to a degree, a struggle against it.

     [1]   See e.g., U. S. Dep’t of Justice, Justice Manual, 9-2.030 (addressing general provisions for authorizing federal prosecution), 9-2.031 (“Petite Policy”) (addressing considerations for dual federal prosecution of crimes prosecuted in state courts).

     [2]   U.S.S.G. § 4A1.1. Criminal history points are assigned to prior convictions. A higher criminal history score results in a higher Sentencing Guideline range.

     [3]   U.S.S.G. § 4A1.2.

     [4]   See e.g., 18 U.S.C. §§1152, 1153.

     [5]   See United States v. Wheeler, 435 U.S. 313, 329-30 (1978); United States v. Lara, 541 U.S. 193, 208-10 (2004). In both of these cases, a significant question was whether the authority of the Indian tribal government to prosecute was inherent or delegated federal power. What powers a government possesses and who, if anyone, may limit those powers are key aspects of sovereignty. This question of “what is sovereignty” runs throughout the background of this paper.

     [6]   See U.S.S.G. § 4A1.2(i).

     [7]   See supra note 3.

     [8]   See e.g., Montana v. United States, 450 U.S. 544, 565–66 (1997) (outlining the scope of tribal adjudicatory and regulatory jurisdiction).

The Constitutional Basis For Requiring Continuing Immunity For Witnesses Immunized Before The Grand Jury

By Reetu Sinha*

Volume 46.2

*J.D. Candidate 2020, The University of Texas School of Law. The author is currently Managing Editor of the American Journal of Criminal Law; she played no part in the consideration of this article for publication.


In United States v. Salerno, seven defendants were indicted on various RICO charges.[1]  One of the central issues in the case was interference with unions at a particular construction firm. In the course of the grand jury investigation to obtain these indictments, AUSAs from the Southern District of New York called two owners of the firm to talk with them about the defendants’ involvement and any illegal activity they or their firm might have been involved with. Both owners testified before the grand jury under a grant of immunity. However, the testimony, despite being elicited by the prosecution, was exculpatory in nature for the defendants. When it came time for trial, the defendants attempted to call the two owners to give the exculpatory evidence on their behalf. However, the prosecution did not extend the owners’ immunity to trial. And so, when called, both witnesses invoked their Fifth Amendment right against self-incrimination and refused to testify. Defendants attempted to introduce the grand jury testimony, but the Supreme Court ultimately held that the testimony did not meet a hearsay exception to render it admissible.

However, the issue that was not raised and therefore not addressed by the Supreme Court was the constitutionality of the prosecution’s decision not to extend the witnesses‘ immunity through trial or otherwise allow the defendants to introduce testimony the witnesses gave before the grand jury.[2] The Second Circuit itself, before the case went up to the Supreme Court on certiorari, considered the Brady implications of Salerno, noting that the practice of withholding exculpatory evidence from the defendant “was not true to the letter or spirit of Brady.”[3] The court did not give a thorough analysis of the Fifth Amendment issues at play because of the doctrine of constitutional avoidance.[4] But it did conclude that denying the defendants access to exculpatory power that was within the government’s possession would be “nothing more than a semantic somersault.”[5] Before being reversed by the Supreme Court, the Second Circuit utilized a hearsay analysis to avoid reaching the constitutional claims.[6] The case was remanded to the Second Circuit to comply with the Supreme Court’s opinion, and went through a series of opinions, but the Constitutional questions were not revisited.[7]

When the Supreme Court struck down the Second Circuit’s alternate basis for allowing the defendant to utilize grand jury testimony, all that was left were the constitutional arguments. [8]The doctrine of constitutional avoidance was embraced partly as a method to avoid broad judicial overreach into areas that are better addressed through democratic processes and public discussion.[9] The most influential articulation of the doctrine is in Justice Brandeis’s concurrence in Ashwinder v. Tennessee Valley Authority, where he lays out seven rules the Court has used to avoid answering constitutional questions.[10] The most applicable of the seven rules to this case is the Last Resort Rule, or the rule that “[t]he Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”[11] When there is an alternative basis for the Court to grant relief, then it should rely on that ground.[12] However, when that ground has been removed as a basis for the Court to grant relief, then it has no alternative to rely on to avoid the constitutional issues.[13] Therefore, the defendants were entitled to have their constitutional claims addressed. So, the question must be answered: do defendants’ constitutional rights to compulsory process, confrontation, and due process entitle them to either continued immunity for witnesses already immunized by the police or access to grand jury testimony? Yes, they do.

     [1]   United States v. Salerno, 505 U.S. 317, 317–20 (1992).

     [2]   See Salerno, 505 U.S. at 317–20; see also United States v. Salerno, 937 F.2d 797, 807–08 (2nd Cir. 1991) rev’d, 505 U.S. 317 (1992).

     [3]   Salerno, 937 F.2d at 807 (2nd Cir. before Supreme Court). 

     [4]   Id. (“However, we rest our decision on our interpretation and application of Fed. R. Evid. 804(b)(1), and not Brady v. Maryland, keeping in mind the time-honored rule that we should not reach constitutional issues unless absolutely necessary.”).

     [5]   Id.

     [6]   Id.

     [7]   See United States v. DiNapoli, 8 F.3d 909 (2nd Cir. 1993).

     [8]   See Salerno, 937 F.2d at 808 (2nc Cir. before Supreme Court). 

     [9]   See Andrew Nolan, The Doctrine of Constitutional Avoidance: A Legal Overview, Congressional Research Service, 8 (2014).

     [10]  Id. at 8–10.

     [11]  Id. at 10 (citing Ashwander v. TVA, 297 U.S. 288, 345–48 (1936) (Brandeis, J., concurring)).

     [12]  Id. at 16 (citing Bond v. United States 572 U.S. 844 (2014)).

     [13]  See id.

Prior Convictions as Moral Opportunities

By Benjamin Ewing*

Volume 46.2

*Assistant Professor, Queen’s University Faculty of Law. Earlier versions of this paper were presented at USC Gould School of Law, Princeton University, the University of Alabama School of Law, Queen’s University Faculty of Law, Yale Law School, Duke Law School, the conference on “Overcriminalization and Indigent Legal Care” at Georgia State University, and the Mid-Atlantic Junior Faculty Forum at the University of Richmond School of Law. For useful comments and fruitful exchanges in those and other contexts, I am particularly grateful to Matt Adler, Michael Adler, Scott Altman, Emad Atiq, Ian Ayres, Jack Balkin, Kate Bartlett, Sara Sun Beale, Charles Beitz, Stuart Benjamin, Jamie Boyle, Curt Bradley, Sam Buell, Guy-Uriel Charles, Walter Dellinger, Deborah DeMott, Mihailis Diamantis, Charles Ewing, Kim Ferzan, John de Figueiredo, Chad Flanders, Lisa Griffin, Ben Grunwald, Paul Haagen, Sharon Harris-Ewing, Eisha Jain, Greg Keating, Alex Kirshner, Doug Kysar, Robert Leider, Marin Levy, Stephen Macedo, Jesse McCarthy, Erin Miller, Philip Pettit, Jed Purdy, Jonathan Quong, Barak Richman, Stephen Sachs, Richard Schmalbeck, Steven Schwarcz, Neil Siegel, Tim Stoll, Tom Tyler, Gary Watson, Ernest Young, my assistant at Duke, Sue Hinson, and my advanced criminal law students at Duke in the spring of 2017. Finally, many thanks to Tori Easton Clark, Rebecca Yung, and the editorial staff of the American Journal of Criminal Law for their work preparing this article for publication.


This paper presents a novel theory of why recidivists appear to have a weaker moral complaint about punishment than first-timers: we implicitly assume that crime and punishment give people valuable “moral” opportunities to reflect upon the sources of their fallibility as agents and take steps to guard against them. This helps to secure them against succumbing to crime, thereby diminishing the reasonableness of their objection to future punishment. Though compelling in theory, this line of thought is problematic in practice because ex-offenders’ opportunities to avoid reoffending are arguably worsened by criminogenic prison conditions and collateral consequences of conviction to a greater extent than they are improved by the moral opportunities inherent in crime and punishment for it. The moral link between ex-offenders’ opportunities and recidivist “premiums” implies we should bolster the former or scale back the latter.


Our response to a crime depends on its perpetrator’s history of offending. We see this in both the administration and the content of criminal law: in exercises of discretion by police,[1] prosecutors,[2] and judges;[3] in laws that single out first-time offenders for special solicitude;[4] in sentencing guidelines that accord significant weight to criminal history in the sentencing recommendations they generate;[5] and in three-strikes laws and similar “habitual offender” statutes dictating exceptionally harsh punishments for serious crimes by offenders with multiple serious past convictions.[6] What could justify such systematic lenience toward first-time offenders and harshness toward recidivists?[7]

Responding to crimes of recidivism with increasing harshness may help us to attain a lower crime rate for any given level of punishment and to avoid punishment that is useless or nearly so (a particularly attractive goal for those who see punishment as a necessary evil that must be justified by instrumental goods it produces).[8] Yet a practice of punishing equally culpable offenders differently based on their race, sex, age, associations, education, employment, or family status—among other variables[9]—might also help us to achieve those valuable ends.[10] And lay intuitions and legal practices accord greater and more systematic significance to criminal history,[11] implying that past convictions are a sturdier basis for differential punishment than other offender characteristics that might be used to estimate an offender’s future dangerousness and otherwise predict the usefulness of punishing him. That suggests the moral justification for treating prior convictions as aggravating does not lie exclusively in the significance of minimizing crime and avoiding useless punishment.[12]

Perhaps recidivists have often had greater legal or moral knowledge, acted with more defiance or premeditation, or shown worse character than first-timers.[13] But treating crimes as necessarily more culpable simply in virtue of being acts of recidivism would require us to adopt a conspicuously broad conception of criminal culpability. And that in turn would cut against the grain of criminal law’s vaunted narrow focus on bad acts rather than bad people—which is reflected in the minimal and occasional roles it accords idiosyncratic differences in (a) offenders’ legal or moral knowledge,[14] (b) exceptionally repugnant, unexpressed motives with which they happen to have committed their crimes,[15] and (c) their free floating bad character over and above the inadequate regard for other people that each of their crimes has itself manifested.[16]

The limits of crime control and the awkwardness of moral culpability as explanations of our treatment of recidivists may not seem troublesome for those inclined toward functionalist explanation and instrumentalist justification.[17] Yet to ground our relative lenience toward first-timers and harshness toward recidivists in a mishmash of prudential generalizations and inchoate sentiments is unsatisfying. Our practice of scaling sanctions to wrongdoers’ prior transgressions is pervasive, intuitive, and consequential and, as such, appears to reflect a coherent and foundational moral ideal.

Tailoring our response to wrongdoing to its perpetrator’s history of offending is pervasive in that it is entrenched across not only the criminal justice systems of the United States and other countries, but also the sanction schemes enforcing the rules of a broad range of public and private institutions across history and around the world.[18] Its pervasiveness reflects and reinforces its intuitive moral appeal, which has been confirmed by surveys of public opinion and of offenders themselves.[19]

Our tendency to take prior wrongs to license enhanced responses to subsequent ones is also enormously consequential. Contrary to popular belief, there is evidence that most felons—perhaps two-thirds—are not reimprisoned after their initial release.[20] But this evidence is consistent with the idea—for which there is also empirical support—that at any given time most felony defendants have prior felony arrests (and very often convictions). A Bureau of Justice Statistics report on felony defendants in the 75 most populated counties in the United States found that in 2009 roughly 62 percent of felony defendants had a prior felony arrest (more than one, in more than 8 in 10 instances) and 43 percent had a prior felonyconviction (more than one, in about 7 of 10 instances).[21] Moreover, the impact of scaling punishment to criminal history is a function not only of the frequency of recidivism but also the magnitude of recidivist sentencing enhancements—which is often substantial. Prior convictions are accorded a place and weight in sentencing that appears unrivaled by any other aggravating or mitigating factors and is sometimes on the same order of magnitude as the seriousness of one’s present offense itself.[22]

Given how pervasive, intuitive, and consequential it is—and how intimately connected our treatment of recidivists is to mass incarceration—the practice of scaling sanctions to an offender’s history of transgressions is woefully undertheorized.[23] Moreover, leading critics of mass incarceration have recently stressed that we cannot hope to end it if we push only for fewer and more lenient punishments for non-serious offenders—particularly non-violent offenders.[24] A similar point can and should be made about recidivists. We succumb to wishful thinking if we suppose that we could undo mass incarceration merely by keeping more first-time offenders out of prison.

The problem, however, is that it is easy to muster sympathy for the plight of “good people” who have made mistakes and difficult to rethink our harshness toward people who commit crimes of violence, people who are seemingly incorrigible recidivists, and especially people who commit multiple violent crimes. Is it possible to make effective use of the special sympathy most people have for first-time offenders without perversely hardening our deep-seated commitment to increasing harshness toward successive acts of recidivism?[25] The most extreme ways of scaling punishment to criminal history—such as California’s three-strikes law prior to a recent reform[26]—have engendered substantial public criticism.[27] But legal theorists who reject the idea of scaling punishment to criminal history altogether are at risk of missing the full force of first-timers’ claims to special sympathy and failing to critique the so-called recidivist “premium”[28] in a way that can speak to the vast majority of people whose support for it is deep and intuitive.[29]

This paper takes seriously the intuitive appeal of scaling punishment to criminal history. And it uses that appeal to mount an internal critique of the practices of scaling punishment to criminal history that we find in the criminal justice systems of America. Unfortunately, there are good reasons to believe those practices fail to do justice to the importance people attribute to second chances, on the one hand, and learning one’s lesson, on the other.

In Part II of the paper, I offer a brief account of why scaling punishment to criminal history might be useful for controlling crime but also why this cannot, alone, fully explain or justify our attitudes and practices toward first-timers and recidivists. The problem is that there are many different distinguishing characteristics of an offender besides his criminal history that likely increase the marginal usefulness of punishing him for controlling crime. Nor can we convincingly fill the gap by arguing that a recidivist’s past crimes somehow necessarily make his present ones more morally culpable in a way that licenses greater state condemnation and punishment. Rather than stretch our conception of criminal culpability and conclude that the state is warranted in condemning and punishing recidivists for non-criminal personal failings over and above their crimes themselves, we do better to start anew: in search of a third determinant of justified punishment beyond crime control and moral culpability.

Part III fills the void by presenting a novel theory of the deep-seated intuition that a wrongdoer has a weaker complaint about a harsh response if she has already transgressed before. The idea behind this theory of “prior convictions as moral opportunities” is that we implicitly view a wrongful act and a process of accountability for it as valuable “moral” opportunities that help us to guard against the external and internal sources of our fallibility as moral agents. Hence, we suppose that repeat offenders have had better opportunities to avoid their second crimes than their first and thus less complaint about punishment for them. This explains well why harsher punishments for subsequent offenses can seem both intuitive in theory and suspect in practice. For whereas some practices of accountability do more than others to buttress the moral opportunities inherent in them, others—including American criminal punishment—impose countervailing constraints on ex-offenders’ opportunities that arguably make it more difficult and costly for them to reform.

In Part IV, I venture from theory to practice and back. First, I consider implications of the theory for such concrete questions of law and policy as whether, why, and how recidivist premiums should depend on (1) the presence of an intervening conviction, (2) the kind of crimes a defendant has committed, (3) the elapsed time between crimes, and (4) the number of previous convictions a defendant has accrued. Second, I discuss reasons for thinking that in America ex-offenders may have poorer opportunities to avoid reoffending than they had to avoid their initial crimes. And I contend that if we are to persist in scaling punishment to criminal history, fairness requires that we take steps to ensure that the moral opportunities arising from prior convictions are not outweighed in significance by criminogenic prison conditions and collateral consequences of a criminal record.  Finally, I suggest that the theory of prior convictions as moral opportunities points to a novel and attractively minimalist conception of the rehabilitative ideal. Rather than see rehabilitation as an affirmative aim that justifies punishing people, or some people more than others, we might instead conclude that securing rehabilitative opportunities for ex-offenders is a moral precondition we must satisfy to be warranted in punishing them more harshly the next time around.

     [1]   Police officers may and often do, for instance, respond to low-level crimes, such as misdemeanors, with warnings or other forms of “non-enforcement.” See, e.g., Michael K. Brown, Working the Street: Police Discretion and the Dilemmas of Reform 182–220 (1981). Warnings are by nature a less attractive option for repeat offenders.

     [2]   See, e.g., Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 261–66 (1980).

     [3]   For instance, although the advisory sentencing ranges of the federal sentencing guidelines are themselves determined by the intersection of a defendant’s offense level and criminal history category, the guidelines manual also authorizes judges to depart upward from a guideline range “[i]f reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history . . . .” United States Sentencing Commission, Guidelines Manual § 4A1.3(a)(1) p.s. (Nov. 2016).

     [4]   See, e.g., Wash. Rev. Code § 9.94A.650(2) (2018) (“In sentencing a first-time offender [defined in the previous subsection to exclude those who have committed a “violent offense,” “sex offense,” or certain drug or alcohol related offenses] the court may waive the imposition of a sentence within the standard sentence range and impose a sentence which may include up to ninety days of confinement . . . .”); Nora V. Demleitner, Douglas A. Berman, Marc L. Miller & Ronald F. Wright, Sentencing Law and Policy: Cases, Statutes, and Guidelines 361 (2d ed. 2007) (“As the statute from Washington highlights, this tendency to cut first-time offenders a break has been codified in many structured sentencing systems.”).

     [5]   See, e.g., USSG Ch.4; Minn. Sentencing Guidelines and Commentary § 2.B (2018).

     [6]   “[B]etween 1993 and 1995, 24 States and the Federal Government enacted new laws using the ‘three strikes’ moniker . . . .” John Clark, James Austin & D. Alan Henry, National Institute of Justice, “Three Strikes and You’re Out”: A Review of State Legislation 1 (1997). Clark et al. found that “violent felonies such as murder, rape, robbery, arson, aggravated assault, and carjacking [we]re typically included as strike offenses,” though several states’ provisions have swept more broadly, including certain drug offenses, for instance. Id. at 7.

     [7]   In the most obvious and central case, a person sentenced as a “recidivist” or someone with a “criminal history” is someone who committed a crime and was convicted of it before he committed his present offense. However, as Richard Frase has emphasized:

[S]ome recidivist enhancements require an intervening conviction between the ‘prior’ and current offences . . . . [O]ther recidivist enhancements apply with or without an intervening conviction. For example, under the federal, Kansas, Minnesota and Washington guidelines, criminal history is calculated as of the date of sentencing, not the date on which the offence being sentenced . . . was committed . . . .

Richard S. Frase, Prior-conviction Sentencing Enhancements: Rationales and Limits Based on Retributive and Utilitarian Proportionality Principles and Social Equality Goals, in Previous Convictions at Sentencing: Theoretical and Applied Perspectives 117, 119 (Julian V. Roberts & Andrew von Hirsch eds., 2010). When speaking of criminal history and recidivism, unless I indicate otherwise, I have in mind principally—but not exclusively—cases in which a defendant committed a prior crime, and was convicted of it, before the present offense for which his sentencing is at issue.

     [8]   See infra Part II.A.

     [9]   For an empirical overview of the usefulness of a long list of variables as predictors of recidivism, see J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1347–68 (2011).

     [10]  Recognizing that many factors beyond prior convictions might be used to estimate more precisely an offender’s risk of reoffending, one prominent commentator has argued that criminal history-based sentencing enhancements are a covert way of “punishing dangerousness” that obscures the tradeoff between punishment of the deserving and incapacitation of the dangerous. See Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Harv. L. Rev. 1429 (2001).

     [11]  See generally Julian V. Roberts, Punishing Persistent Offenders: Exploring Community and Offender Perspectives (2008).

     [12]  One might argue that a defendant’s criminal history is simply a predictor of dangerousness that is especially salient, familiar, and strong. However, reviewing evidence on potential predictors of recidivism, Oleson suggests that criminal history is high on the list but not clearly an outlier with greater predictive value than such factors as a defendant’s “criminal companions,” “criminogenic needs,” “antisocial personality,” or race. See Oleson, supra note 9, at 1347–68. Criminal history differs, of course, from many other actuarial factors in the degree to which it was once under a defendant’s control through choice. But to appeal to that difference is to give up the game of trying to show that the reasons for favoring criminal history over other predictive offender characteristics in sentencing are merely administrative and epistemic—not moral.

     [13]  See infra Part II.B.

     [14]  In unusual cases in which the moral or legal wrongfulness of a crime would otherwise be far from obvious, the law sometimes requires that to commit it, a defendant needs to have acted in willful violation of the law, or with “consciousness of wrongdoing.” See Samuel W. Buell & Lisa Kern Griffin, On the Mental State of Consciousness of Wrongdoing, 75 Law & Contemp. Probs. 133 (2012).

     [15]  Although criminal guilt does not generally presuppose that an accused acted with any particular motive, there are offences for which some ulterior aim is required, and motive is arguably relevant in a range of direct and indirect ways to various forms of partial exculpation, as well as aggravation and mitigation. See generally Carissa Byrne Hessick, Motive’s Role in Criminal Punishment, 80 S. Cal. L. Rev. 89 (2006) (arguing that motive plays more of a role in the criminal law than is often supposed and should play an even greater one).

     [16]  Despite the criminal law’s famed resistance to punishing mere bad character, evidence of character may have some impact at sentencing, particularly in the capital context, in which mitigation inquiries are most protected and expansive. See generally Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (holding that a capital sentencer generally must be allowed to consider “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”) (emphasis added) and 18 U.S.C. § 3592(a)(8) (2012) (specifying that facts about a defendant’s character are among the potential grounds for mitigation in a capital case).

     [17]  Scaling punishment to criminal history may achieve a range of potential penal ends—and perhaps even constitute the subject of an overlapping consensus (in Rawls’s sense), or an incompletely theorized agreement (in Cass Sunstein’s sense), among reasonable citizens whose shared commitment is supported by a range of diverse, non-foundational arguments. See John Rawls, Political Liberalism 133–72 (expanded ed. 2005); Cass R. Sunstein, Incompletely Theorized Agreement, 108 Harv. L. Rev. 1733 (1995).

     [18]  See Roberts, supra note 11, at 2–7.

     [19]  See id. at 137–84.

     [20]  One must be careful about the “recidivism rate” for several reasons. First, when recidivism is defined to include rearrests without convictions, or to focus on reincarceration but even for parole violations, it is much more prevalent than the kind of recidivism about which I am concerned—namely, recidivism as rearrest, conviction, and sentencing for a new offense. See Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 101–04 (2015). Second, as John Pfaff has observed, frequently cited data on recidivism compiled by the Bureau of Justice Statistics capture recidivism rates of prisoners released in particular years, which are likely to be much higher than the recidivism rate of all felons ever released from prison. Pfaff notes that a more recent study tracking specific individuals reimprisoned over 13 years “found that only about one-third of all people admitted to prison at any point ended up returning at any later time—not one-half as the BJS reports suggested.” See John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform 66–68 (2017) (quoting 67). Cf. Patrick A. Langan & David J. Levin, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994 (2002), and Matthew R. Durose, Alexia D. Cooper & Howard N. Snyder, Bureau of Justice Statistics, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (2014), with William Rhodes et al., Following Incarceration, Most Released Offenders Never Return to Prison, 62 Crim. & Delinquency 1003 (2016). As Marie Gottschalk notes, “Pew’s findings [from data on prisoners released in 2004 and 1999] were comparable to those of the 2002 Bureau of Justice Statistics recidivism report and of studies of recidivism rates in other developed countries.” Gottschalk, supra note 20, at 102 (citing Pew Center on the States, States of Recidivism: The Revolving Door of America’s Prisons (2011) and Amanda Petteruti & Jason Fenster, Justice Policy Institute, Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations 41–42 (2011)).

     [21]  Brian A. Reaves, Bureau of Justice Statistics, Felony Defendants in Large Urban Counties 2009—Statistical Tables 11, 13 (2013).

     [22]  For example, the federal sentencing range for a defendant with an offense level of 14 (out of a possible 43) would be as low as 15–21 months of imprisonment if he were in the lowest criminal history category and as high as 37–46 months if he were in the highest criminal history category. A defendant with an offense level of 28 could face a sentencing range of anywhere from 78–97 months to 140–175 months, depending on his criminal history category. See USSG § 5A.

     [23]  Two collections of essays on the moral foundations of recidivist punishment have been published in recent years, and their tone is tentative and exploratory. See Recidivist Punishments: The Philosopher’s View (Claudio Tamburrini & Jesper Ryberg eds., 2012); Previous Convictions at Sentencing, supra note 7.

     [24]  See especially Pfaff, supra note 20;Gottschalk, supra note 20, at 165–95; James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21, 45–52 (2012).

     [25]  Reforms focused on non-serious offenders may redound to the detriment of their “serious” counterparts when scaled-back punishment for the “non-serious” is paired and sold with ramped-up punishment for the “serious.” See, e.g.,Gottschalk, supra note 20, at 167–68.

     [26]  A recent ballot measure brought California in line with the standard practice of restricting third strikes to a narrow set of “serious” offenses.  See generally J. Richard Couzens & Tricia A. Bigelow, The Amendment of the Three Strikes Sentencing Law 5 (May 2017),

     [27]  See, e.g., Matt Taibbi, Cruel and Unusual Punishment: The Shame of Three-Strikes Laws, Rolling Stone,March 27, 2013, available at

     [28]  Use of the term “recidivist premium” is ubiquitous in discussions of sentencing enhancements based on criminal history and dates back at least as far as to George P. Fletcher, The Recidivist Premium, 1 Crim. Just. Ethics 54 (1982).

     [29]  Cf. Frase, Prior-conviction Sentencing Enhancements, supra note 7, at 120 (“Strict theories, rejecting repeat-offender enhancements or positing reduced desert only for offenders with little or no criminal history, would invalidate so much of current sentencing practice that they are likely to be ignored by policymakers and courts.”).

Crime Fantasies

By John Felipe Acevedo*

Volume 46.2

*Visiting Lecturer of Law, University of Alabama School of Law. J.D., University of Southern California Gould School of Law and Ph.D., The University of Chicago. I would like to thank Richard Delgado, Jean Stefancic, Jenny Carroll, Ron Krotoszynski, Al Brophy, Eve Hanan, Ben Levin, and Anna Roberts for comments on various aspects of the project; Richard Helmholz for his guidance on earlier work exploring the criminal law of colonial Massachusetts; the members of the Junior Faculty Workshop at the University of Alabama School of Law; the participants of CrimFest!; and the faculty at Duquesne School of Law for their comments. As always, I thank Deepa Das Acevedo for her comments, corrections, and inspiration. All errors remain mine alone.


Throughout American history the public has been gripped by fantasies of criminal activity. These crime fantasies manifest in two distinct but related typologies: witch-hunts and crime panics. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that exacerbate deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. President Trump’s relentless focus on undocumented immigration can be seen as a partially successful attempt to create a crime panic, while, perhaps surprisingly, the investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations and highlights areas for future reform.

The President and First Lady, who hated being a political wife, were barely speaking anymore. An “aide, joked that his duties included briefing [The President] on how to kiss his wife.”[1] The President was himself “increasingly moody, exuberant at one moment, depressed the next, alternately optimistic and pessimistic, especially in his nocturnal phone calls.”[2] Longtime friends who had no direct involvement in the core of the Special Prosecutor’s case were being ensnared in the investigation.[3] His closest aides, even his White House counsel, were talking with the Special Prosecutor and trying to cut deals.[4] The President and his allies called the investigation a “purge” and a “witch-hunt.”[5] “He wondered aloud . . . whether it was worth it to stick things out and fight and then vowed he would never be driven from office.”[6] President Nixon would not finish his term in office.

The Watergate scandal transfixed the nation.[7] Two of the primary investigators, Bob Woodward and Carl Bernstein, would write a bestselling book even before all of the trials had ended.[8] Whether it involves high-profile defendants or specific types of criminal activity, social theorists have attributed this fixation as arising from both fear[9] and voyeuristic tendencies.[10] Watching crime shows—true-crime shows in particular—allows the audience to experience fear in a controlled and safe environment.[11] Similarly, crime entertainment allows the public to indulge in voyeuristic fantasies similar to viewing pornography from the comfort of their homes.[12]

But when the public’s fantasization of crime begins to influence the criminal justice system, it creates profound issues of unfairness.[13] This article shows that there are two distinct types of crime fantasies: witch-hunts and crime panics. Witch-hunts create new crimes by penalizing people because of their beliefs, while crime panics involve the overzealous prosecution of a particular type of crime. These two types of related, but distinct, crime fantasies ought to be kept separate for the sake of conceptual clarity and to enable tailored criminal justice reform.

In true witch-hunts new laws are passed to target a disfavored ideological group. The type of ideology involved is not significant—as Part II will show, both religious and political ideologies have been the focus of witch-hunts over the course of American history. Instead, the defining feature of a witch-hunt is that the criminal system is deployed to target a group of persons because of the group’s beliefs. In other words, witch-hunts reflect a breakdown of substantive due process or equal protection through the passing of unfair laws designed to target the disfavored group. Paradigmatic American examples include the targeting of Quakers by the colonists in the Massachusetts Bay colony and the Red Scares of the twentieth century.

In contrast, crime panics focus on an existing type of criminal activity but with a zeal that exacerbates weak points in the criminal law system. Crime panics produce unjust trials, overly harsh punishments (including the passing of new punishments for existing crimes), and, at their worst, wrongful convictions.[14] Consequently, they exacerbate either existing flaws in criminal procedure or a breakdown in procedural due process. Unlike witch-hunts, crime panics are unrelated to ideological position, although they may rely on stereotypes of particular groups and thus disproportionately affect protected classes.[15] Crime panics are exemplified by the Salem Witchcraft trials and the Satanic Panic of the late twentieth century, among numerous others.

As discussed above, both witch-hunts and crime panics contain an element of fantasy in them. This fantasy can be seen in witch-hunts in the disproportionate and unjust fear of a group of persons because of their beliefs. Similarly, crime panics are based on a disproportionate fixation on a type of criminal activity. Nevertheless, a distinction needs to be drawn between the types of crime fantasies—to more accurately understand landmark events in American criminal law and, more importantly, to enact criminal justice reform. Witch-hunts—although more odious, given their intentional targeting of specific groups—are easier to identify and cure. Religious minorities are now largely (if not always satisfactorily) protected under the First Amendment.[16] Similarly, the Red Scares have abated and have not risen again. To be sure, there is great room for improvement.[17] But true witch-hunts are increasingly unlikely to occur in American society.[18] In contrast, crime panics are far more difficult to resolve as they criminalize behavior that society wants criminalized but introduce or rely on processes that undermine individual rights.[19]

Additionally, although both witch-hunts and crime panics can appear to target individuals solely on the basis of suspect classifications—particularly race and national origin—this is not a required or even dominant feature of either phenomenon.[20] Indeed, some events that would seem to be either a crime panic or a witch-hunt precisely because they turn on suspect classifications (such as the internment of Japanese during World War II) do not fit well into either category because no ideology is implicated and no criminal activity triggered state action.[21] The interplay of race with  witch-hunts and crime panics will be discussed in Section I(c) and Section II(d).

Part I explores two paradigmatic incidents of witch-hunting: the seventeenth-century persecution of Quakers in the Massachusetts Bay colony and the Red Scares of the twentieth century. Part II examines the Salem witchcraft trials and the Satanic Panic of the 1980s and 90s and shows why they are exemplary crime panics. This part also explains why the investigation by Special Prosecutor Robert Mueller is neither a witch-hunt nor a crime panic despite considerable political rhetoric to the contrary. As this broad cross-section of American history demonstrates, the distinction between witch-hunts and crime panics is both deep seated and wide ranging. Finally, Part IV articulates why the distinction between the two types of crime fantasies, witch-hunts and crime panics, matters—they exacerbate different weaknesses in the American criminal system and demand different solutions—and suggests some possible reforms to the criminal law. When we haphazardly lump these events under one descriptive term, we hamper our ability to engage targeted and effective criminal law reform.

     [1]   Bob Woodward & Carl Bernstein, The Final Days 165 (1976) (The authors attribute the comment to Lieutenant Colonel Jack Brennan).

     [2]   Id. at 104.

     [3]   Lawrence Mayer, Rebozo Blasts Hill Unit Staff, Wash. Post, May 21, 1974, at A7 (Rebozo was not involved with any aspect of the Watergate break-in or cover-up, but was ensnared in the investigation for his role in campaign finance irregularities associated with Nixon’s re-election).

     [4]   John Dean, The Nixon Defense: What He Knew and When He Knew It 363 (2014).

     [5]   See, e.g., Mayer, supra note 3, at A7 (Rebozo called the congressional investigation a witch-hunt); see also, e.g., Aldo Beckman, Nixon Complains Probe has become a Purge, Chi. Trib., April 21, 1974, at 6; see also, e.g., William Safire, Why the President should not Step Down, Chi. Trib., November 7, 1973 (arguing that investigation was a miscarriage of justice that harmed the country).

     [6]   Woodward & Bernstein, supra note 1, at 104.

     [7]   See e.g., Christopher Lehmann-Haupt: Books of the Times: Story of an Unfinished Story, N.Y. Times, May 14, 1974, at 35 (noting that All the President’s Men was published at the same time as three editions of the White House transcripts, which distracted readers from their book).

     [8]   See generally Carl Bernstein and Bob Woodward, All the President’s Men (1974); see also Best Sellers, N.Y. Times, Dec. 29, 1974, at 25 (noting that at the end of 1974, Woodward & Bernstein’s book had been on the New York Times’ Best Sellers list for 31 weeks); see also Doris Kearns, A Whodunit Without an Ending, N.Y. Times, June 9, 1974, at 7-1 (discussing that Woodward and Bernstein published their book before the end of the trials, making it feel unfinished).

     [9]   See Thomas H. Pauly, The Criminal as Culture, 9 Am. Lit. Hist. 776, 776–77 (1997) (stating that criminals represent fear of the other, which can lead to scapegoating of unpopular groups for the ills of society. But, under social pressures, such as the Great Depression, the public can see criminals as heroic and the system as corrupt); see also Scott Bonn, Why we are Drawn to True Crime Shows, Time Mag., Jan. 8, 2016 (discussing his own research into the subject and concluding that the fixation on crime, and especially murders, is a form of spectacle-gazing that is made powerful as it triggers fear in an exciting and controlled way; viewers do not actually face the killer directly).

     [10]  Slavoj Zizek, Looking Awry, 50 Oct. 30, 35–39 (1989) (discussing crime movies, such as Manhunter, as being equivalent to pornography as both involve a voyeuristic tendency).

     [11]  Bonn, supra note 9.

     [12]  Zizek, supra note 10, at 35–39 (noting that while crime movies involve us taking on the Lacanian gaze of the other, pornography inverts this paradigm by turning the gaze back onto the pornography viewer who is the target of the arousal seen on film and thus the true object of the film rather than the pornography actors).

     [13]  See Lisa A. Kort-Butler & Kelly J. Sittner Hartshorn, Watching the Detectives: Crime Programming, Fear of Crime, and Attitudes about the Criminal Justice System, 52 Soc. Q. 36, 51–53 (2011) (describing a correlation between the types of programming that people watch and their fear of crime and attitudes toward how to deal with crime; the more police shows watched the higher the fear in crime and harsher attitudes toward criminals); see also Mark Fishman, Crime Waves as Ideology, 25 Soc. Probs. 531, 531, 534–36 (1978) (proposing that crime waves are media constructions based on the way actual crimes are presented to the public to make it appear that a crime wave is occurring).

     [14]  See, e.g., John Hagan, Who are the Criminals?: The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan 157–61 (2010) (describing the passage of the Anti-Drug Abuse Act of 1986 as linked to the media focus on the death of a star college basketball player as well as the subsequent failure of the desperate sentencing between powder and crack cocaine to significantly reduce crime).

     [15]  See Bernard Schissel, Blaming Children: Youth Crime, Moral Panics and the Politics of Hate 82–85 (1997) (finding that aboriginal youth are more closely watched by the police as are males over females and those youths living in urban centers, which leads to a disparity in their arrest rates); see, e.g., Grace Palladino, Teenagers: An American History 81–85 (1996) (discussing the juvenile delinquency panic of the 1940s, which linked comic books and science fiction movies to a rise in juvenile crime and gangs).

     [16]  See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (striking down on First Amendment grounds the prohibition of ritual sacrifice of animals when it was passed by the city to target Santeria practitioners).

     [17]  Although political dissidents in American democracy have been unfairly targeted, individuals like Upton Sinclair were arrested for such absurd things as reading the Constitution in public. Upton Sinclair, The Autobiography of Upton Sinclair 228 (1962).

     [18]  But see Erwin Chemerinsky, The Case Against the Supreme Court 77–82 (2014) (describing the detentions of American citizens as enemy combatants on U.S. soil in contravention of the Constitution).

     [19]  See generally, e.g., Mara Leveritt, Devil’s Knot: The True Story of the West Memphis Three (2002) (telling the story of three teens convicted for murder on dubious evidence in large part because they were seen as Satan worshipers by the police, district attorney, and jury).

     [20]  Schissel, supra note 15, at 82–85; see also Palladino, supra note 15, at 81–85.

     [21]  Korematsu v. United States, 323 U.S. 214 (1944), overruled by Trump v. Hawaii, 138 S.Ct. 2392 (2018) (noting Korematsu’s only crime was not leaving the evacuation zone; he had no connection to the Japanese government).