Research and Data

Abstract: Under the law of asset forfeiture, a person loses ownership of money and property that were used in or constitute the proceeds of a crime. Asset forfeiture is a significant financial consequence for people who have (in some cases, tenuous) contact with the criminal system. Asset forfeiture also is a crucial way that federal, state, and local governments generate revenue from criminal investigation and prosectuion. In the federal system, the government's acquisition of forfeited assets (such as cash, electronics, cars, and homes) brings in around $2 billion in revenue each year. Every year, the federal government transfers hundreds of millions of these dollars to state and local law enforcement agencies, making asset forfeiture a lucrative federal-state enterprise.

This Article makes three contributions. First, I present the first scholarly examination of how the federal government has engaged in asset forfeiture over the last 25 years. To do so, I use comprehensive data of the roughly 1.2 million asset forfeitures the federal government conducted over the years 1998 through 2019 matched to county-level population data over the same period.

Second, this empirical analysis reveals inequality in asset forfeiture's impact. I show that when it comes to revenue-generating forfeitures, the government is more active in districts with larger Black and Hispanic populations. This disparity is driven in part by the government's extensive use of forfeiture in the districts that border Mexico--a phenomenon the literature has not yet recognized. The same disparity is not present in forfeitures that do not generate revenue. I argue that forfeiture thus resembles the widely criticized practice in which governments derive revenue from fines and fees in ways that unfairly burden poor communities of color.

Finally, I argue that by lacking the empirical scrutiny this Article provides, much scholarly and public debate about asset forfeiture misunderstands both the harms and benefits of asset forfeiture: overlooking asset forfeiture's potential to make communities safe, but also undercounting important individual and distributive harms. The Article concludes by considering avenues for reform. 

Abstract: For decades, advocates and observers have lambasted mandatory minimum sentencing laws. In 2013, Attorney General Eric Holder instructed all federal prosecutors to stop charging mandatory minimums against defendants charged with low-level, nonviolent drug trafficking crimes. This paper finds evidence of meaningful compliance with the charging policy that did not fully translate into sentencing reductions for defendants the policy sought to help. The paper suggests that these results can be understood by the Holder reform’s failure to account for mandatory minimum entrenchment in federal criminal law, policy, and practice and the extent to which it was redundant of pre-existing opportunities for defendants to avoid mandatory minimums. The paper does find meaningful sentencing effects for two subsets of the defendant population: defendants convicted of drug offenses involving cocaine base and ineligible defendants that are prosecuted alongside an eligible co-defendant. 

Abstract: Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives. This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime. It shows—contrary to dominant academic and public discourse—that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately target the least advantaged U.S. residents for low-level offenses. This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes. This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census. It demonstrates the history, geography, an inequality that characterize federal financial crime cases, which include myriad crimes, such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few. It shows that financial crime defendants are disproportionately low-income and Black, and that this over-representation is not only a nationwide pattern, but also a pattern in every federal district in the United States. What’s more, the financial crimes prosecuted against these over-represented defendants are on average the least serious. The Article ends by exploring how formal law and policy, structural incentives, and individual biases have created a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

Abstract: Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.

Abstract: The uniquely American phenomenon of mass incarceration plagues the pretrial space. People awaiting trial make up roughly twenty percent of those held in criminal custody in the United States. Largely overlooked by bail reform advocates, pretrial detention in the federal criminal system presents a puzzle. The federal system detains defendants at a much higher rate than the states—more than 60 percent of U.S. citizen-defendants were detained pending trial by federal courts last year. But federal defendants virtually never fail to appear nor are arrested for new crimes while on pretrial release. And unlike state court systems, cash bail is disfavored in federal courts. Most federal defendants who are released pending trial are released on personal recognizance or unsecured bond.

This Article argues that the federal experience with pretrial detention—beginning with its historical roots in old English law and ending with the enormous and disparate detention rates that I document today—provides important lessons for those seeking to reform bail in both federal and state law. The bulk of the Article tackles a critical empirical question: does the modern, broadly discretionary, detention regime generate race- or gender-based disparities in pretrial detention? To answer this question, the Article leverages an expansive new dataset that covers more than 300,000 federal defendants sentenced between fiscal years 2002 and 2016. The results are sobering. White defendants are more likely to be released pending trial than similarly-situated defendants of color, and female defendants are more likely to be released pending trial than similarly-situated male defendants.

More importantly, a disparity analysis that recognizes the intersectional relationship between race and gender paints a more complex picture. The most extreme racial disparities are among male defendants—where Black men are four percentage points and Hispanic men are six percentage points more likely to be detained than similarly-situated White men. Among female defendants, however, racial disparity presents the opposite relationship: Black women are more likely to be released pending trial than Hispanic and White women. Notably, this disparity pattern for women does not appear in other studies of pretrial detention in state courts, where White women are often the most likely race-gender group to be released. Based on this empirical evidence, the Article ends by assessing possible legal changes to address disparity and by offering lessons for states embarking on bail reform.

Abstract: Unlike the cash-bail regimes that are prevalent in state courts, federal courts rarely use money bail as a condition of pretrial release. Nonetheless, this article presents evidence that pretrial release influences case outcomes for federal defendants. Using case data spanning 71 federal district courts, the article suggests that pretrial release reduces a defendant’s sentence and increases the probability that they will receive a sentence below the recommended sentencing range. Pretrial release also appears to lessen the probability that a defendant will receive a mandatory minimum sentence when one is charged. The analysis exploits variation in magistrate judges’ propensities to release defendants pending trial, which allows magistrate judge leniency to serve as an instrumental variable for pretrial release. The article also provides suggestive evidence that pretrial release affects case outcomes through two channels: first, by giving defendants the opportunity to present mitigating evidence at sentencing and second, by making it easier for defendants to earn a sentencing reduction by providing assistance to the government. 

Abstract: This paper uses data from an online database of music sampling to estimate the effect of copyright protection on the cumulative use of music. Using unique panel data that links upstream and downstream music, I use regression analysis to examine the rates at which early twentieth-century musical works were used throughout the twentieth-century. The results suggest that copyright protection causes an upstream work to be used less than half as often as it would if it were in the public domain after conditioning on upstream-song and downstream-year fixed effects. Placebo regressions in which the copyright expiration date is artificially shifted forward and backward in time by two, five, and ten years suggest an immediate effect of copyright expiration on downstream use. 

Abstract: Since the 1980s, Congress has hoped that federal drug enforcement and punishment will focus on the leaders of drug-trafficking organizations and those who engage in violence. Yet it is now well-known that federal drug prosecutions instead significantly concentrate on low-level participants in the organized drug trade: couriers, mules, storers, street-level dealers, and others. Because the Controlled Substances Act and federal drug guidelines assign and recommend punishment based on formulas that emphasize drug quantity, these low-level participants often receive hefty sentences, either because of the application of a lengthy statutory minimum or by virtue of being sentenced under a severe (yet advisory) guidelines range. For decades, advocates, observers, and policymakers have debated how to address this problem. This essay offers two contributions. First, it uses U.S. Sentencing Commission data to provide a descriptive empirical account of the considerable disconnect between culpability and sentence lengths for federal defendants who perform low-level functions in drug-trafficking organizations that deal in large quantities of drugs. The author shows that judges appear to respond to this disconnect by routinely sentencing below the advisory guidelines range for drug-trafficking defendants convicted in the upper echelons of offense levels—a trend that has been increasing over the last twenty years. Second, the essay argues that these persistent downward reductions highlight a structural flaw in the drug guidelines’ reliance on quantity as a proxy for culpability. The author asserts that reducing base offense levels at the top of the drug guidelines would better align recommended sentences with judicial practice, legislative intent, and the actual conduct of low-level defendants in large-scale drug conspiracies.

Abstract: The United States imprisons an enormous number of people. Imprisonment in the United States is not only mass, but also unequal by race, sex, and class. Over the last several years, criminal reform advocates, scholars, and the public have paid greater attention to the potential of elected prosecutors to fix the massive and unequal harms our criminal legal system imposes on people. To do so, some jurisdictions have elected those who are popularly called progressive prosecutors to enforce criminal law. I estimate that roughly 15% of U.S. residents now live in a jurisdiction with a progressive prosecutor, although that term is difficult to define.

This Essay presents early evidence suggesting that progressive prosecutorial reforms have not always been as effective as hoped at reducing incarceration. Why not? As this Essay describes, reform-minded prosecutors might fall prey to two phenomena. First, prosecutorial reforms sometimes replicate lenient treatment that was already happening. I call this the redundant leniency problem. Second, reforms implemented by progressive prosecutors sometimes underestimate the redundant punishment that persists in many criminal legal regimes. That is, progressive policies sometimes fail to account for the ways in which different parts of our criminal legal systems reinforce each other, leaving less room than expected for the prosecutorial reform to bring about meaningful change. And, as many scholars have pointed out, carceral systems outside the criminal legal system also work in tandem with the criminal system to perpetuate mass, unequal incarceration. Taken together, these critiques suggest that progressive prosecutors must pursue reforms that are both systemic and far-reaching if they hope to dramatically reduce incarceration in their jurisdictions. 

Abstract: Since their enactment in the mid-1980s, mandatory minimum sentencing provisions have been a prominent feature of the Controlled Substances Act. Observers argue that these mandatory minimum provisions generate unjustifiably harsh sentences for many federal criminal defendants convicted of drug offenses and significantly contribute to racial inequality in the federal criminal system. This essay describes another important characteristic of mandatory minimums—their reach beyond cases in which they are actually charged. I call this phenomenon and its attendant institutional framework mandatory minimum entrenchment. Rather than conceptualizing mandatory minimums as a binary component of a defendant's case that either applies or does not, I argue it is more realistic to confront mandatory minimums as a primary element in a larger sentencing framework.

This essay first describes the emergence of mandatory minimums, which Congress added to the Controlled Substances Act roughly fifteen years after its passage. Part II describes how mandatory minimums were hastily created in response to political and public pressure. Part III explains how mandatory minimums then became entrenched in federal sentencing of defendants convicted of drug offenses. Entrenchment flourished as the mandatory minimums for drug offenses influenced the U.S. Sentencing Commission's drug guidelines, to which prosecutors and judges are formally and behaviorally tethered. Part III then presents a case study that illustrates mandatory minimum entrenchment: showing that sentences for low-level, non-violent drug offenders remained relatively stable after a sweeping 2013 policy change that meaningfully reduced mandatory minimum charging in this group. The Essay ends in Part IV, which calls on Congress to amend the Controlled Substances Act to either eliminate or reduce its mandatory minimum provisions.