By Hayley Stillwell

Despite the foundational principle in the American criminal justice system that it is better to acquit the guilty than to convict the innocent, wrongful convictions remain a persistent issue. Wrongful convictions are sometimes caused by flawed evidence, such as eyewitness misidentifications and unreliable forensic techniques. Researchers and scholars have studied this problem of flawed evidence extensively, leading to many successful reform efforts to address this portion of the wrongful conviction problem. But there is another portion of the wrongful conviction problem that has yet to be the target of reform efforts—wrongful convictions caused by juror error. Implicit biases, forbidden assumptions, and strategic voting are jury errors that can lead to wrongful convictions, yet they are difficult problems to address given the black box of secrecy that surrounds jury deliberations. This Article proposes the use of “placebo trials” as a novel thought experiment that could transform into a real experimental method to identify and address jury error. Placebo trials simulate real trials in every way, but they are not real. As far as jurors know, however, they are sitting on a real trial. Another important characteristic of placebo trials is that the objectively correct verdict outcome is an acquittal. By inserting a variable into a placebo trial, the experiment can show with firsthand jury data whether the variable impacts acquittal rates. If a variable has such an effect, then it may lead to wrongful convictions and should be the focus of reform efforts.

56 Ariz. St. L.J. 1361 (2024 )

By Conor McCormick and Brice Dickson

Available open access digitally under CC-BY-NC-ND licence. This compelling book underscores the significance of the Court of Appeal in Northern Ireland, making a significant contribution to the literature and proposing recommendations on how it could enhance both its efficiency and its reputation.

Bristol, UK: Bristol University Press, 2024.

By Stina Bergman Blix and Nina Törnqvist

Exploring the rationales behind legal anger, its logic and origins, this book builds on the perspectives of judges and prosecutors in Italy, Sweden, the United States, and Scotland. When do judges and prosecutors become angry in court, what do they become angry about, and which other emotions open up for anger? Anger brings people to court and is essential in evaluating wrongdoing and attributing blame, but at the same time, anger is seen as a threat to well-reasoned and just decision-making. Drawing on observations, interviews, and shadowing of legal professionals, the text demonstrates how anger is entangled with legal thought and comes into play in legal practices. By comparing the workings and displays of anger found in different legal systems and emotional cultures, the book elucidates assumptions about law, morality, truth, and emotions that we commonly take for granted. Rational Anger will be of great interest to students and scholars of criminology, criminal justice, sociology, law, social psychology, and organisation studies.

Oxford, UK; New York: Oxford University Press, 2025. 124p.

By Brandon MordueFollow

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime. Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success. The results are not encouraging.

Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing. This has created a split among judges, with some following the guidelines and others rejecting them. The consequences are arbitrariness in sentencing and unwarranted disparities across offenders.

In 2007, the Supreme Court permitted appellate courts to presume the reasonableness of guideline sentences, largely insulating those sentences from judicial review. Much has changed since then, and it is time for the presumption to go. The findings of the original data analysis presented in this Article, as well as developments since the Court’s decision, show that the claims made in support of the presumption are unfounded. In fact, some of the related case law rests upon provably false empirical premises.

Today, most sentences are not within the range set by the guidelines. Favoring the minority of sentences that are within the range results in a sentencing regime incompatible with the overriding statutory aim of avoiding unwarranted sentencing disparities. Rather than presuming the reasonableness of within-guideline sentences, the courts can chart a course correction by prioritizing the data on actual sentences from the Sentencing Commission. Such a shift would achieve more consistent sentences across offenders convicted of similar crimes.

115 J. Crim. L. & Criminology 133 (2025), 73p.

By Isis Misdary

Three separate but closely related factors have together produced this nation’s epidemic of mass incarceration. First, the enforcement of criminal law has become wholly dominated by a caste of repeat players. The chasm between this grouping and outsiders has become far more important than the prosecution-defense duality ostensibly dominating the system. Second, the system’s design and policies have become dominated by central authorities sealed in a “tough-on-crime” echo chamber. This leaves local communities largely powerless to check the devastation being visited upon them. And third, the system has ruthlessly suppressed the individuality of those facing charges. They are rarely seen, almost never heard, ignored if they try to contextualize events giving rise to the charges, and punished severely if they attempt to assert their rights, much less their innocence. Robbed of all that makes them human, their fates arouse little sympathy. Devastated communities have mounted various responses to mass incarceration. None is more exciting than the participatory defense movement. This movement seeks to involve the person facing charges as well as that person’s family and community. Together, they meet with defense counsel, gather evidence for the case, and in mitigation, prepare videos or other testimonials to influence charging and plea-bargaining decisions and undertake other efforts to support the person facing charges. Through the movement’s work on individual cases, families and communities have spotted issues within the criminal systems and the criminal laws close to home that must change, that must end. Case by case, they have started to challenge, change, and end them. Yet, for all its promise, participatory defense may face considerable challenges going forward in these areas. As a relatively new movement, it must continue to resolve significant design challenges and overcome formidable institutional and attitudinal buttresses the current system has erected.

25 Nev. L.J. 325 (2025), 92p.

By John Burns

This Note traces the evolution of bail from its origins to modern commercial bail, highlighting how the system has disproportionately affected low-income defendants. In 2023, Illinois became the first state to eliminate cash bail with the enactment of the Pretrial Fairness Act, which attempted to remedy longstanding inequities. The Note situates Illinois’s approach between New Jersey’s successful risk-based reform and California’s oversimplified and harmful “zero bail” experiment. While Illinois’s reform represents a meaningful step toward fairness, this Note argues that its reliance on a categorical approach and its limited use of pretrial assessments may unintentionally undermisne its effectiveness. The Note concludes that Illinois must go further by expanding judicial discretion and mandating the use of risk assessment tools.

Washington University Journal of Law & Policy [Vol. 78, 2025. 29p.

By Andrew Willinger and Eric Ruben

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the common critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in Second Amendment jurisprudence, including the Amendment's unique aspects as well as the role of legal movements in facilitating the Amendment's development. Faced with a lack of judicial precedent on both the right to keep and bear arms and originalism-in-practice, law review articles often can be more helpful than past opinions. Beyond scholarship's utility in a new area of law, we suggest that a related phenomenon-the gun rights and conservative legal movements' trifold success at facilitating the rise of the individual Second Amendment right, popularizing originalism as a methodology, and elevating originalist judges to the bench-is an important part of the story. For a half century, organizations focused on achieving both a robust right to bear arms and a conservative vision of the Constitution have become more prominent and have closely associated with both scholars and judges. If, in the usual telling, judges look askance at scholarship, this specific area of law might present an exception since it has been a joint project from the beginning.

The Article concludes that the judge-scholar collaboration that has characterized Second Amendment case law is likely to continue. Moreover, it could have ramifications far beyond the right to keep and bear arms, including for other rights that may be on the cusp of transformation and for other legal movements seeking to emulate the strategies that ushered in modern Second Amendment law.

78 SMU Law Review __ (forthcoming), Duke Law School Public Law & Legal Theory Series No. 2025-26, SMU Dedman School of Law Legal Studies Research Paper No. 696,

By Benjamin Eidelson, Deborah Hellman,

Universities are facing an unprecedented wave of claims that they have violated their obligations to Jewish students under Title VI of the 1964 Civil Rights Act. These charges center on an equally unprecedented wave of anti-Israel activity on college campuses, much of which is alleged to cross the line into antisemitism. This essay, forthcoming in the Harvard Law Review Forum, provides one of the first systematic analyses of these exceptionally high-stakes claims about Title VI.

Our analysis reveals that the Title VI claims face formidable hurdles, including some that have received surprisingly little attention thus far. Most fundamentally, Title VI’s omission of “religion” as a protected characteristic means that Jewishness is protected under the statute only insofar as it constitutes a “race” or (less likely) a “national origin.” Under existing law, however, discrimination based on the cultural practices or viewpoints that may be associated with such an immutable characteristic—as Zionism might be associated with Jewishness—is ordinarily not cognizable as discrimination based on the protected characteristic itself. Moreover, if “hostile environment” liability can be founded on offensive conduct that does not constitute covered disparate treatment in its own right, this is likely possible only pursuant to a disparate impact theory that the Trump Administration has denounced and that the Supreme Court has rejected for private suits. Any notion of harassment based on conduct’s “objective offensiveness” would also need to account for distinctive features of the university setting that likely preclude liability for much of the protest activity that has loomed large in recent public discussions of Jewish students’ experiences on campus.

Although specific facts matter and not all of the issues are clear-cut, we thus conclude that appeals to Title VI in this area are much weaker than has been widely appreciated. Of course, this does not mean that campus antisemitism is acceptable. But it does mean that, for the most part, universities have both the right and the responsibility to balance their competing commitments in this area—including commitments to both inclusion and freedom of expression—using their own considered judgment.

Harvard Public Law Working Paper 25-13

Forthcoming, Harvard Law Review Forum (June 2025)

By David Abrams and Priyanka Goonetilleke

Each year, millions of Americans rely on public defenders to fulfill their Sixth Amendment right to counsel. Despite being the linchpin of the criminal justice system, public defense remains both underfunded and understudied. This article provides empirical analysis to contribute to a critical question: How should public defender systems be structured?

Criminal justice advocates, scholars, and the American Bar Association strongly favor vertical representation in public defense. Under this model, a single public defender represents a defendant throughout their case, from initial appearance through sentencing. The alternative approach—horizontal representation—operates like an assembly line: Different attorneys handle each stage of a case, from preliminary hearings to pretrial conferences to trials. The preference for vertical representation stems from the intuitive belief that continuity of representation improves outcomes for defendants. However, no prior empirical work has tested this assumption.

Using a natural experiment created by the Defender Association of Philadelphia’s transition from a fully horizontal representation system to a partially vertical one, we find no evidence that increasing attorney continuity improves defendant outcomes.

These findings have significant implications for how public defender offices should allocate their scarce resources. While vertical representation is considered by many as the ideal, our results cast doubt on whether the additional resources and logistical challenges relative to horizontal representation are justified given the current reality of underfunded public defense. As jurisdictions nationwide grapple with a chronic lack of resources for public defense, this article provides crucial empirical evidence to inform decisions about how best to uphold defendants’ Sixth Amendment right to counsel.

.100 New York University Law Review No. 5 (forthcoming), Northwestern Law & Econ Research Paper No. 25-05, Northwestern Public Law Research Paper No. 25-22, U of Penn, Inst for Law & Econ Research Paper No. 25-10,

By Jess Hickman, Mei Yang, Andy Tisdel, Charlie Riccardelli, Ashley Neufeld, and Amanda Coscia.

When a person facing criminal charges fails to appear for a court hearing, no one benefits. Courts must reschedule hearings and often issue warrants, consuming time and resources. Meanwhile, people who miss court may face additional charges, fees, and even jail time. Jurisdictions across the country have explored interventions such as court date notifications to improve appearance rates, but failures to appear continue to present a challenge. Part of the problem is that the underlying causes are unclear. Research suggests that people miss court for reasons like forgetting the date or not receiving notice.1 Others miss hearings due to a lack of transportation or conflicts with life responsibilities, including employment or providing dependent care. Courts need hard data on why people miss court. However, relatively few studies have systematically investigated this question, leaving courts without the information needed to make policy decisions. To fill this research gap, the Crime and Justice Institute (CJI), with funding from Arnold Ventures, partnered with Jefferson County, KY (Louisville) and Salt Lake County, UT (Salt Lake City) to survey people who were arrested on a failure to appear warrant.

Boston: Crime and Justice Institute, 2025. 7p.

By Anouschka Rajah, Conleth Burns

Recent events have propelled the criminal justice system to the forefront of public debate. The controversial early release of thousands of prisoners to ease overcrowding was one of Labour’s first acts in government. The Stockport attack, the 2024 summer riots, the media storm over ‘two-tier’ justice, David Gauke’s independent review of sentencing – all have contributed to a new and intense scrutiny of the UK’s approach to crime and punishment. The backdrop to these events is a justice system in crisis, of which the overcrowding of our prisons is only one symptom. As this report shows, victim and wider public confidence has collapsed; voters are deeply frustrated with the status quo and now rank criminal justice alongside the NHS, immigration, and the economy as a top priority for reform. The Common Ground Justice Project, which commissioned this research, aims to find a new way forward for the justice system which can command broad public support. In the context of a noisy, polarised debate, we’re starting by listening: to voters across the country, to victims, perpetrators and communities most affected by crime. To that end, More in Common conducted national polling and focus groups to better understand public attitudes to criminal justice through the lens of their British Seven Segments model. What emerges is a public ready for change, with views more complex than the popular framing of ‘tough’ vs ‘soft’ justice. While there are key differences between segments, most people are not at the extremes. They want a better balance: enforcing punishment while also improving accountability and proportionality and ensuring people who commit crime make a contribution to society rather than being a burden on the taxpayer. This is the emerging common ground that can point towards a different future: delivering a real sense of justice for victims, safer streets, and restoring public confidence – even national pride – in the British justice system. What might such a future look like? While the public shows little enthusiasm for costly prison expansion, many struggle to imagine credible alternatives. Yet our findings show that when people are presented with concrete examples of new approaches that speak to core values, they respond with openness. The will for change is clear – but to harness it, we need greater efforts to identify new ways forward that feel tangible, achievable, and properly resourced. We also found that the public segment whose views on criminal justice differ most sharply from the rest of the country (Progressive Activists) is significantly overrepresented in policy and communication roles across the public and charity sectors. For those advocating change or shaping justice policy, we hope this report underscores the importance of not only following the evidence of what works, but also speaking to the values of the British public whose trust in the system is essential. The report is just the first step, but an important one, of our journey to improve understanding of attitudes on criminal justice and light the way to a justice system that better serves victims and wider society

UK: Common Ground Justice, 2025. 41p.

By Gemma Morgan, Debbie Jones, Charlotte Walker, Gayle Prideaux, Emma Jones

While the concept of co-production is becoming embedded in mental health and social care, the criminal justice system (CJS) has been slower in embracing this approach. In this article, we draw on the findings of a process evaluation of the Include UK Hub – a co-produced service for people with offending histories in Swansea, UK and, in doing so, introduce the DEVICES principles of co-production. The DEVICES is derived from the empirical evaluation data and includes the following principles – Development, Empathy, Voices, Individual, Change, Empowerment, and Spaces. These principles will appeal globally to practitioners and policymakers looking to meaningfully utilise co-production to develop services and support for people in the criminal justice system.

The Howard Journal of Crime and Justice, 64, 162–180. 2025.

By Claire Fitzpatrick, Katie Hunter, Jo Staines, Julie Shaw

This article focuses on rarely heard judicial perspectives, and the little explored challenges facing care-experienced girls and women in court. Drawing on semi-structured interviews with judges and magistrates, it reveals how the court process may be a disempowering and inadequate process for both the powerful and the powerless. Using the four elements of procedural justice as a lens to explore this – voice, trust, neutrality and respect – we highlight the immense challenges of achieving these goals for those with histories of being stigmatised and marginalised. In searching for solutions, the concept of ‘judicial rehabilitation’ enables consideration of how we might rehabilitate our systems and imagine a more hopeful approach to justice.

The Howard Journal of Crime and Justice, 64, 145–161, 2025.

By Melissa M. Labriola; Jessie Coe; Isaac M. Opper; Danielle Sobol; Amy Mahler

This research report presents an evaluation of Neighborhood Courts, a restorative justice diversion program run by the District Attorney in San Francisco. Results indicate that the program reduces recidivism (although this result is statistically insignificant). Neighborhood Courts is built on a restorative justice framework with the use of restorative justice hearings and directives that are assigned to the defendant, all to achieve four primary goals: 1) efficient case resolution; 2) community-driven solutions; reduced burden on criminal courts; and 4) reduced recidivism. This report uses information collected from program staff and participant interviews and surveys, administrative data, and observations of programs to describe how the program is implemented, identify key program facilitators and barriers, illustrate participant experiences, determine whether the model is effective in reducing risk factors for criminal legal involvement (e.g., recidivism), and whether it is cost-effective. This report should be of interest to entities across the U.S. interested in diversion programs.

Santa Monica, CA: RAND, 2023. 37p.

By Patrick Armstrong

This policy framework outlines policy recommendations developed as part of a Justice Reinvestment Initiative effort in Kansas from 2020 to 2022 in collaboration with the Kansas Criminal Justice Reform Commission. Analysis conducted throughout the project resulted in numerous policy and practice recommendations to improve community supervision, victim services, behavioral health supports, employment opportunities, and housing for people in the criminal justice system. These recommendations were advanced to the Commission, and some were introduced to the legislature during the 2021 session. Some of these bills, in addition to new ones, were also considered in the 2022 session. Recommendations related to improving supervision by focusing resources where they can be most effective, expanding prosecutor diversions, and extending the existence of the Commission culminated in legislation that was signed into law in May 2021. Recommendations focused on improving specialty court programs, allowing people to petition to be removed from a drug offenses registry, and ensuring that people on supervision are supervised by only one entity were signed into law in April 2022.

New York: The Council of State Governments Justice Center, 2022. 16p.

By Diarmuid Griffin

Existing research on life imprisonment focuses on interrogating the sentence from a human rights perspective, exploring lived experiences, and examining release processes. There are few studies that analyse the judicial practice of imposing life imprisonment. This article examines judicial rationales in imposing and upholding discretionary sentences of life imprisonment in Ireland, from 1987 to 2022. The findings indicate that it is selectively imposed (primarily for sexual or homicide offences). Sentence selection is frequently influenced by the multiplicity of offending, the exceptional nature of the crime(s) and the vulnerability of the victim(s). Factors such as the risk of reoffending and previous criminal history also appeared to influence sentence outcomes. The indeterminate nature of the sentence was viewed as beneficial in addressing concerns relating to public protection. Author: Diarmuid Griffin

IRISH JUDICIAL STUDIES JOURNAL , 2024. 18p.

By Beatrix Immenkamp with Greta Baltikauskaite, Graphics: Samy Chahri

The European arrest warrant (EAW) is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person for the purposes of a criminal prosecution or a custodial sentence. Between 2005 and 2022, some 231 005 EAWs were issued, and 69 688 persons were surrendered. The functioning of the EAW system – as set out in this infographic – requires a high level of trust between the judicial authorities of the issuing and the executing Member State, which has at times generated challenges and tensions. In the internal security strategy published on 1 April 2025, the Commission stated that it would 'assess the need to further strengthen' the EAW.

Brussels: EPRS | European Parliamentary Research Service, 2025. 2p.

By Kierra B. Jones Evelyn F. McCoy Natalie Lima Rod Martinez

Prosecutor-led diversion programs are growing in popularity in many jurisdictions across the country and offer a unique opportunity for prosecutors to address the impact prosecutorial decisions have in perpetuating mass incarceration and an opportunity to reduce local jail populations. Diversion programs can both hold people accused of wrong-doing accountable, while reducing the deleterious effects of incarceration. This case study, part of a series highlighting work supported by the Safety and Justice Challenge, examines how Milwaukee County, Wisconsin developed and implemented prosecutor-led diversion strategies to reduce the local jail population.

Washington DC: The Urban Institute, 2022.36p.

By Evelyn F. McCoy, Azhar Gulaid, Nkechi Erondu, Janeen Buck Willison

Increased rates of pretrial detention have driven overall growth in the jail population nationwide and carry significant individual and systemic impacts for people of color, who are disproportionately affected by pretrial policies. Targeting rates of failure to appear in court in local jurisdictions is key to reducing pretrial jail populations, especially because failure to appear can result in bench warrants and ultimately detention. This case study, part of a series highlighting work supported by the Safety and Justice Challenge Innovation Fund, examines the experiences of Tulsa County, Oklahoma, and Hennepin County, Minnesota, which implemented strategies to reduce rates of failure to appear in court and to reduce their respective jails’ pretrial populations.

Washington, DC: The Urban Institute, 2021. 22p

By Shamena Anwar, Patrick Bayer, Randi Hjalmarsson, Matthew L. Mizel

Virginia law states that any motorist pulled over for driving 20 miles per hour (mph) or more over the speed limit or driving in excess of 80 mph at any speed limit (or 85 mph as of July 2020) is eligible for a reckless driving citation, which is a Class 1 misdemeanor violation. However, both law enforcement officers and the courts can use discretion to reduce the misdemeanor charge to a simple traffic infraction. In this report, researchers use data on speeding violations in 18 Virginia counties over a nine-year period to examine whether there are racial disparities in who benefits from this discretion and why these racial disparities might exist.

Key Findings

Law enforcement and the courts are afforded significant discretion in misdemeanor cases

When Virginia officers pull over a motorist for speeding in the reckless range, they can either charge the motorist with a misdemeanor or downgrade the charge to an infraction. Officers in this sample downgraded the charge to an infraction 58 percent of the time.

At the court stage, the court can convict the motorist of the misdemeanor charge, amend the charge downward (typically to an infraction), or dismiss the charge entirely. In this sample, the courts amended or dismissed these misdemeanor speeding charges 42 percent of the time.

Penalties for a misdemeanor conviction are significantly higher than penalties for an infraction

A misdemeanor conviction results in a criminal record, higher fines and fees, and a worse driving record, all of which can have important impacts on an individual's life.

Black motorists were more likely to be convicted of a misdemeanor

Among motorists cited for speeding in a range that qualified for a misdemeanor, 36 percent of Black motorists were convicted of a misdemeanor, compared with 19 percent of White motorists.

Racial disparities were present at both the law enforcement and court stages of the process. Compared with White motorists, Black motorists both were more likely to be charged with a misdemeanor by law enforcement and, conditional on being charged, were more likely to be convicted by the courts.

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics, such as whether the motorist attended the court hearing and whether a defense attorney was present.

Recommendations

One potential way to remove the option for disparate treatment, and to ensure that motorists in different counties are policed in the same way, would be to move to a statewide system of automated speed enforcement, in which cameras are set up to identify and send citations to speeding vehicles. The misdemeanor speed threshold could be set so that the overall level of enforcement is similar to current levels (in which a majority of motorists' potential misdemeanor charges are discounted), but the criteria would apply to all motorists across the state in the same way regardless of race or location.

A large percentage of the racial disparities at the court stage occurred because of racial differences in who attended the court hearing. If this pattern is caused by racial differences in being aware that court attendance is required, the citation issued to motorists could be restructured to make the next steps in the process clearer, and text message reminders for upcoming court dates could be sent to motorists.

Many jurisdictions have started to develop online platforms so that court hearings for traffic violations can occur remotely. Such platforms might result in a more standardized process, which might lessen the importance of attorneys — another driver of the overall racial disparity observed at the court stage. Furthermore, these platforms could hide the race of the motorist from the judge, potentially reducing judges' ability to engage in disparate treatment.

Santa Monica, RAND, 2021. 73p.