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California Law Review

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sentencing reform, federal court docket, criminal litigation


Courts | Criminal Law | Law


In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to raise the concern that, because of their workload, the federal courts are not resolving cases as capably as they could.

While Menell and Vacca focus on civil litigation in the federal system, this Article looks instead at criminal cases. It first considers whether the problems Menell and Vacca describe on the civil side afflict criminal litigation to the same extent. On the assumption that the problems in the criminal docket are similarly acute, it then considers whether anything can be done about them.

Part I of this Article assesses the efficiency, uniformity, and quality of criminal justice in the federal system. It starts by noting that, while the federal criminal docket is not as overloaded as the civil docket on which Menell and Vacca focus, the number of criminal and prisoner cases commenced in federal court has far outpaced increases in judgeships. Perhaps as a result, resolution of these cases at the district court level has slowed appreciably over the past several decades, and while the rate at which criminal cases are terminated at the appellate level has not changed substantially, that stability appears to have come at a serious cost. Significant circumstantial evidence suggests that the federal appellate courts are not resolving criminal matters as carefully as they once did, in large part because over three-quarters of federal court cases are now handled through decisional shortcuts such as unpublished opinions and surrogate decision-makers, practices that are particularly prevalent in litigation affecting criminal defendants and prisoners. Making matters worse, the Supreme Court has become increasingly less able, or less willing, to resolve circuit court conflicts over criminal law issues.



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