By Nicole D. Porter

The United States has one of the highest incarceration rates in the world. Nearly two million people – disproportionately Black – are incarcerated in the nation’s prisons and jails. In the early 1970s, 360,000 persons were incarcerated in correctional facilities.

Criminal legal reform trends in 2024 were divergent at a time when politicians used punitive-sounding talking points to move voters fearful of a recent uptick in crime. However, stakeholders, including formerly incarcerated activists and lawmakers, saw some success in scaling back mass incarceration. Advocacy organizers and officials in at least nine states advanced reforms in 2024 that may contribute to decarceration, expand and guarantee voting rights for justice impacted citizens, and advance youth justice reforms.

Highlights include:

Decarceration Reforms: State lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences to more fairly hold persons convicted of certain crimes accountable. During 2024, policymakers in Oklahoma and Michigan adopted or expanded second look and compassionate release policies authorizing reconsideration of certain criminal legal sentences after a term of years.

Guaranteeing Voting Rights: While over 4 million people are ineligible to vote because of a felony conviction, voting rights reforms have expanded the vote to over two million people since 1997. This year, officials in Nebraska and Oklahoma approved measures to expand voting rights to persons after incarceration while lawmakers in Colorado passed legislation requiring all county jails to establish polling stations guaranteeing access to the ballot for incarcerated voters.

Youth Justice: Lawmakers in Indiana and Pennsylvania adopted policies that demonstrated a commitment to supporting young defendants including eliminating automatic charging of youth as adults for certain offenses and establishing practices that may reduce length of detention stays.

Highlights include:

Decarceration Reforms: State lawmakers enacted legal reforms to reduce prison admissions and to adjust penalties to criminal sentences to more fairly hold persons convicted of certain crimes accountable. During 2024, policymakers in Oklahoma and Michigan adopted or expanded second look and compassionate release policies authorizing reconsideration of certain criminal legal sentences after a term of years.

Guaranteeing Voting Rights: While over 4 million people are ineligible to vote because of a felony conviction, voting rights reforms have expanded the vote to over two million people since 1997. This year, officials in Nebraska and Oklahoma approved measures to expand voting rights to persons after incarceration while lawmakers in Colorado passed legislation requiring all county jails to establish polling stations guaranteeing access to the ballot for incarcerated voters.

Youth Justice: Lawmakers in Indiana and Pennsylvania adopted policies that demonstrated a commitment to supporting young defendants including eliminating automatic charging of youth as adults for certain offenses and establishing practices that may reduce length of detention stays.

Washington, DC: The Sentencing Project, 2024.

By Michael Vitiello

The United States’ War on Drugs has not been pretty. Moral panic has repeatedly driven policy when states and the federal government have regulated drugs. Responding to that panic, legislators have authorized severe sentences for drug offenses.

By design, Article III gives federal judges independence, in part, to protect fundamental rights against mob rule. Unfortunately, the Supreme Court has often failed to protect fundamental rights in times of moral panic. For example, it eroded Fourth Amendment protections during the War on Drugs. Similarly, it failed to protect drug offenders from excessive prison sentences during the War on Drugs. This Article examines whether it is time for the Supreme Court to rethink its precedent upholding extremely long sentences for drug crimes.

In 1983, in Solem v. Helm, the Supreme Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applies to terms of imprisonment. There, it found the imposition of a true-life sentence imposed on a repeat offender to be grossly disproportionate to the gravity of the defendant’s offense. Whatever hope Solem created that courts might limit excessive sentences proved to be false.

Two Supreme Court cases dealing with drug sentences, bracketing Solem, demonstrate the Court’s unwillingness to override legislatures’ discretion in imposing sentences. In 1982, the Court upheld a 40-year term of imprisonment imposed on an offender who possessed less than nine ounces of marijuana. In 1991, the Court upheld a true-life sentence imposed on an offender who possessed 672 grams of cocaine. The Court’s refusal to curtail such extreme sentences reflects its willingness to accede to the nation’s moral panic over drug usage.

Since the height of the War on Drugs, Americans have changed their views about drugs. Significant majorities of Americans favor legalization of marijuana for medical and recreational use. Many Americans favor a wholesale rethinking of drug policy. Despite studies in the 1950s and 1960s demonstrating beneficial use of drugs like LSD and psilocybin, Congress yielded to moral panic and included them in Schedule I when it enacted the Controlled Substances Act of 1970. Efforts are afoot at the state level to legalize the study of and to decriminalize the use of those and other drugs.

This Article argues that the Court should rethink its Eighth Amendment caselaw upholding severe drug sentences. The Court’s Eighth Amendment caselaw balances the severity of punishment against the gravity of an offense. In turn, the gravity of an offense turns on its social harm and the culpability of the offender. The Court upheld extreme drug sentences based on the view that drugs were a national scourge. Moral panic led it to overstate the social harm and the culpability of drug offenders. Scientifically based examination of drugs and drug policy should compel the Court to rethink its excessive punishment caselaw because the balance between severity of punishment and the gravity of drug offenses looks different when one has a better understanding of true costs and benefits of drug use.

Clev. St. L. Rev., 69, 441 2921

By Claire Austin

In the U.S., death row is made up of a disproportionate number of black persons. In capital trials, black defendants often face all white juries. The deep-rooted racial discrimination in the justice system impacts jury selection because prosecutors use peremptory strikes to remove black jurors from the jury panel. As the law stands today, the Sixth Amendment guarantee of an impartial jury made up of a fair representation of the jury applies only to the pool of jurors called in for jury service, not those who are actually selected to hear the case. This comment analyzes the Supreme Court decision, Holland v. Illinois 493 U.S. 474 (1990), which held that the Sixth Amendment does not prevent prosecutors from striking potential jurors based on their race. In doing so, the Court missed an opportunity to provide meaningful relief to black capital defendants who faced all-white juries. This comment argues for the reversal of Holland, extension of Sixth Amendment protections, and a change in the framework for questioning the use of peremptory challenges to remove black jurors.

Marquette Benefits and Social Welfare Law Review, 25 Marq. Ben. and Soc. Welfare L. Rev. 59 (2023)

Accountability: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill Its Promises

By Jason Tiezzi, Robert McNamara, and Elyse Smith Pohl

Qualified immunity is perhaps America’s most controversial legal doctrine, erupting into the national consciousness during debate over police misconduct in 2020. Created by the U.S. Supreme Court four decades ago, the doctrine protects government officials from being sued for violating constitutional rights—unless victims can show those rights are “clearly established.” In practice, this often means pinpointing a published opinion from the Supreme Court or the federal appellate court in their jurisdiction finding the same conduct in the same circumstances unconstitutional.

The Supreme Court intends for qualified immunity to give government officials leeway to make reasonable mistakes—especially in tense or dangerous situations requiring quick thinking—without facing lengthy litigation, onerous discovery, or financial ruin. By insisting rights be clearly established to receive protection, the Court aims to put officials on notice of conduct to avoid before they face such consequences. Critics counter, however, that qualified immunity sets too high a bar for victims of abuse to seek justice and winds up protecting officials who intentionally, maliciously, or unreasonably violate the Constitution. They also argue the doctrine does not work as the Court intends.

This study adds new evidence to the record using the largest ever collection of federal appellate cases, covering the 11-year period from 2010 through 2020. It is the first to use cutting-edge automated techniques to parse thousands of federal circuit court opinions and answer key questions about cases where government defendants claim qualified immunity—what kinds of officials and conduct it protects, its impact on civil rights cases, and whether the doctrine is achieving its aims.

Key findings include:

In the federal circuit courts, qualified immunity appeals have become more common.

From 2010 through 2020, at least 5,526 cases before federal circuit courts raised qualified immunity on appeal, an average of about 500 cases a year.

And from the first half of our study period to the second, the annual average of qualified immunity appeals grew by 20%, even as civil appeals of all types fell.

Contrary to popular belief, qualified immunity is not just about police accused of excessive force. It shields a wide array of government officials and conduct.

While police were the most common defendants, fully half of appeals featured other types of government officials, either alongside or instead of police. Prison officials made up the next largest share, but in more than one in five of all appeals, or 21%, defendants were neither police

nor prison officials. These other officials included mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers.

Excessive force was alleged in just 27% of appeals, followed by false arrest at 25%; some alleged both. But the third largest category, alleged in 18% of appeals, encompassed violations of First Amendment rights, including speech, association, and religious liberty.

Altogether, only 23% of appeals fit the popular conception of police accused of excessive force. In most First Amendment appeals, plaintiffs alleged government officials engaged in premeditated retaliation for protected speech or activity.

In a representative sample of 125 First Amendment appeals, 59% involved plaintiffs alleging premeditated abuse by government officials in retaliation for protected First Amendment activity. In nearly half of such cases, government workers alleged retaliation from their superiors, while in nearly a third, private citizens claimed they were targeted for retaliation by government officials.

Qualified immunity favors government defendants and makes it harder for plaintiffs to win—regardless of the merits of their claims.

In all, 59% of qualified immunity appeals were resolved solely in favor of government defendants, while 24% were resolved solely in favor of plaintiffs.

Qualified immunity disadvantages plaintiffs for arbitrary reasons, such as their circuit’s population or publication rate. These vary widely and influence the volume of clearly established law in a circuit—and therefore, the volume and variety of prior cases that plaintiffs can rely on to vindicate their rights.

Qualified immunity rulings often lack precision and clarity, again making it hard for plaintiffs to pinpoint the clearly established law required to win. In common with other legal experts, ours often could not untangle courts’ reasons for granting qualified immunity—if reasons were even offered.

When denied qualified immunity, government defendants have the right to file special immediate appeals—a right unavailable to plaintiffs. And they can do this multiple times in the same lawsuit. Such “interlocutory appeals” accounted for 96% of all defendant appeals.

These special appeals risk wearing down worthy plaintiffs with extended litigation. Their prevalence likely helps explain why the median duration of a qualified immunity lawsuit was three years and two months, 23% longer than the typical federal civil suit up on appeal.

Our findings provide more evidence that qualified immunity is a poor fit for achieving its goals.

Qualified immunity confuses instead of clarifies the rules government workers must follow to avoid burdensome litigation. If legal experts struggle to make sense of qualified immunity, the average government official—let alone one facing a life-or-death situation—cannot be expected to do so.

Qualified immunity fails to protect officials from the burdens of litigation, most notably potentially intrusive discovery. Nearly 70% of appeals came at the summary judgment stage of litigation, when courts typically have already allowed discovery.

Qualified immunity clogs up the courts with extra, often lengthy, appeals—some 2,000 interlocutory appeals that would not have existed without the special appeal rights given to government defendants.

These results suggest qualified immunity shields a much wider array of government officials and conduct than commonly thought. They also add to a growing body of research finding qualified immunity protects officials too much and our rights too little, all while failing to achieve its goals. This strengthens the argument for the Supreme Court or Congress to temper or—better yet—abolish the doctrine.

Whether through outright abolition or significant reform, courts and lawmakers can and should act to eliminate the unbounded impunity allowed by qualified immunity.

Arlington, VA: Institute for Justice, 2024. 6op.

By DICK M. CARPENTER II, JAIMIE CAVANAUGH & SAM GEDGE

Most, if not all, incorporated communities in the United States have municipal and traffic codes that delineate the powers and duties of local governments or provide rules and regulations for public activity in the community. The primary stated purpose of code enforcement is promoting and protecting public health and safety. Codes are commonly enforced through monetary fines and administrative fees. Recent years have seen growing concern about cities engaging in “taxation by citation”—that is, the use of code enforcement to raise revenue from fines and fees in excess of citations issued solely to protect and advance public safety. A significant focus of the concern is how taxation by citation violates rights in the pursuit of revenue. In this way, taxation by citation seems to illustrate Professor Bernadette Atuahene’s theory of stategraft: state agents transferring property from residents “to the state in violation of the state’s own laws or basic human rights,” often during times of budgetary austerity. But this Essay identifies important features of municipal codes and their enforcement that are not necessarily encompassed by this theory. It suggests how stategraft may be expanded to encompass laws, regulations, and systems that legally—if arguably unconstitutionally—allow or incentivize state actors to exploit their residents for the benefit of the bureaucrat’s budget.

Wisconsin Law Review, 2024(2), 707–728.

By Jennifer L. Doleac

Half of individuals released from prison in the United States will be re-incarcerated within three years, creating an incarceration cycle that is detrimental to individuals, families, and communities. There is tremendous public interest in ending this cycle, and public policies can help or hinder the reintegration of those released from jail and prison. This review summarizes the existing empirical evidence on how to intervene with existing offenders to reduce criminal behavior and improve social welfare.

JOURNAL OF ECONOMIC LITERATURE

VOL. 61, NO. 2, JUNE 2023

(pp. 383–427)

By Emilie Bruzelius and Silvia S. Martins

Recreational cannabis laws (RCL) in the United States (US) can have important implications for people who are non-citizens, including those with and without formal documentation, and those who are refugees or seeking asylum. For these groups, committing a cannabis-related infraction, even a misdemeanor, can constitute grounds for status ineligibility, including arrest and deportation under federal immigration policy—regardless of state law. Despite interconnections between immigration and drug policy, the potential impacts of increasing state cannabis legalization on immigration enforcement are unexplored.

Methods

In this repeated cross-sectional analysis, we tested the association between state-level RCL adoption and monthly, state-level prevalence of immigration arrests and deportations related to cannabis possession. Data were from the Transactional Records Access Clearinghouse. Immigration arrest information was available from Oct-2014 to May-2018 and immigration deportation information were available from Jan-2009 to Jun-2020 for. To test associations with RCLs, we fit Poisson fixed effects models that controlled for pre-existing differences between states, secular trends, and potential sociodemographic, sociopolitical, and setting-related confounders. Sensitivity analyses explored potential violations to assumptions and sensitivity to modeling specifications.

Results

Over the observation period, there were 7,739 immigration arrests and 48,015 deportations referencing cannabis possession. By 2020, 12 stated adopted recreational legalization and on average immigration enforcement was lower among RCL compared to non-RCL states. In primary adjusted models, we found no meaningful changes in arrest prevalence, either immediately following RCL adoption (Prevalence Ratio [PR]: 0.84; [95% Confidence Interval [CI]: 0.57, 1.11]), or 1-year after the law was effective (PR: 0.88 [CI: 0.56, 1.20]). For the

deportation outcome, however, RCL adoption was associated with a moderate relative decrease in deportation prevalence in RCL versus non-RCL states (PR: 0.68 [CI: 0.56, 0.80]; PR 1-year lag: 0.68 [CI: 0.54, 0.82]). Additional analyses were mostly consistent by suggested some sensitivities to modeling specification.

Conclusions

Our findings suggest that decreasing penalties for cannabis possession through state RCLs may reduce some aspects of immigration enforcement related to cannabis possession. Greater attention to the immigration-related consequences of current drug control policies is warranted, particularly as more states weigh the public health benefits and drawbacks of legalizing cannabis.

BMC Public Health volume 24, Article number: 936 (2024)

By Jeremy D. Barnum, Dustin A. Richardson, Dulani Woods, Kevin D. Lucey, Meagan E. Cahill, Michael J. D. Vermeer, Brian A. Jackson

Midlevel police leaders (MLPLs), such as sergeants and lieutenants, have great influence over officers' perceptions, behaviors, and well-being and are crucial for effectuating organizational culture, goals, and objectives. Therefore, they are lynchpins for organizational function, innovation, and change. Given the substantial impact that MLPLs have on a police organization — and ultimately the delivery of public safety — agencies must have mechanisms in place to cultivate, identify, and select the best individuals for these positions. This is achieved through the promotion process — the advancement of organizational members to higher ranks and increased levels of responsibility. In general, the promotion process in police agencies involves some combination of written testing, oral interviews, and assessment center analyses. However, this process lacks uniformity across agencies, and there is a dearth of research on the most-effective ways to conduct police promotions.

On behalf of the National Institute of Justice, RAND and Police Executive Research Forum researchers convened an expert panel to discuss how agencies currently conduct promotions for MLPL positions. Through a series of interviews and a group discussion session, the workshop participants identified and prioritized 47 needs for improving promotions in policing, 26 of which were considered highest priority. These needs are related to bias, disparity, and barriers in promotions; the development of metrics to identify successful candidates; valid and reliable methods to assess candidates; training and career progression; and considerations about transparency and organizational justice.

Key Findings

Some promotion policies, practices, or accepted norms in some agencies may be in violation of employment law.

The existence of or lack of organizational policies (e.g., assignments, training opportunities, bargaining agreements, promotion procedures, accommodations for family circumstances) can create barriers that prevent some employees, particularly women and people of color, from pursuing promotions or being successful in the promotion process.

Although it is important to evaluate past performance, it is currently challenging to use performance evaluations as a metric in the promotion process because evaluation processes are inadequate, inconsistent, and inequitable.

There is a lack of longitudinal and follow-up research with people who have gone through the promotion process and served in leadership roles to assess the promotion process.

Human assessments are inherently subjective, which can lead to inconsistency, and are subject to intentional and unintentional bias. Agencies lack processes for selection, preparation, tools, and oversight for rater selection.

There are no standards or best practices for how stakeholders (e.g., community members, staff from other police agencies, members of the civil service commission, or representatives from other criminal justice and government agencies) should be involved in promotion processes.

Police agencies are not doing enough to provide transparent, fair, equitable, and reasonable assistance to their employees preparing for the promotion process.

Some police agencies provide insufficient constructive feedback to individuals who participated in a promotion process in an honest and respectful way. This prevents employees from remaining engaged and motivated and exposes agencies to turnover and legal liability.

Recommendations

Develop educational materials, curricula, and resource guides that summarize what organizations and employees should know about employment law.

Conduct quantitative and qualitative research to identify disparate barriers to promotion for otherwise qualified candidates.

Develop and validate metrics to evaluate performance across positions.

Conduct qualitative and quantitative research to identify challenges and successes from the perspective of the agency leaders who managed the process.

Conduct longitudinal research to identify challenges and successes from the perspective of the candidates who went through the process.

Conduct a systematic review to identify evidence-based best practices for selecting, training, and overseeing evaluators or raters.

Develop a best-practices guide to help agencies appropriately include stakeholders in promotion processes.

Develop a best-practices guide based on what effective agencies (and those in other industries) are already doing.

Develop training experiments that evaluate different feedback models.

Santa Monica, CA: RAND, 2024, 31p.

By Natasha Brown

On September 18, 2022, 42-year-old Shannon Brandt hit and killed 18-year old Cayler Ellingson with his SUV following a heated altercation in McHenry, North Dakota. Brandt admitted to the crime and “was charged with vehicular homicide and leaving the scene of an accident that resulted in death.” Despite court documents revealing Brandt’s past DUI history, “unlawful possession of alcohol and fleeing a peace officer on foot”, two days later, on September 20, 2022, Brandt was released from custody after posting $50,000 bail. On September 12, 2022, 42-year-old Ivan Cheung was “charged with aggravated rape (four counts), aggravated rape of a child (four counts), and aggravated statutory rape (two counts)” in Boston Massachusetts. Sixteen days later, on September 28, 2022, Cheung walked out of Boston Municipal Court after posting a $200,000 bail. In contrast, in March of 2016, 31-year-old Jessica Preston was arrested for driving with a suspended license in Macomb County, Michigan. Despite being eight months pregnant, the judge gave her the choice of going to jail until she received a hearing date, or come up with $10,000 for bail. Preston did not have the financial resources to make bail and as a result was put in jail. Five days later, Preston went into labor. When the jail staff refused to call an ambulance, Preston had no choice but to give birth on a mat lying on the jailhouse floor. These three stories above reveal that despite the wide range of crimes that were committed, the determining factor to secure the pretrial release of a murderer, a rapist, and a traffic violator was money. While Shannon Brandt and Ivan Cheung were charged with violent crimes, they were both released because they had the means to pay their bail. In contrast, Jessica Preston who was arrested for a non-violent crime remained in pretrial detention because she could not afford to pay her way out. Ending a decades long system that bases someone’s freedom off of access to money requires collective collaboration between advocates across political lines who are ready to implement change. On January 22, 2021, Illinois Governor JB Pritzker signed into law the Safety, Accountability, Fairness and Equity Today Act, otherwise known as the SAFE-T Act (“Act”). Within the SAFE-T Act is the Pretrial Fairness Act (“PFA”) which eliminated cash bail in Illinois. While states like California and New Jersey have passed similar cash bail reform laws, Illinois is the first state in the country to abolish the cash bail system entirely. This bill affirms the notion that people accused of crimes are considered innocent until proven guilty and their release is not based on their access to monetary funds. Those in opposition claim the SAFE-T Act will be the beginning stages of The Purge, the infamous movie where all crime is legal for 12 hours. Critics against the Act have promoted misinformation leading many to believe that violent people will be released into the neighborhoods and cause chaos among communities. This comment explores how the implementation of the PFA does not impose a threat to the safety of Illinois residents, but rather how the PFA will pave the wave for a more just court system that other states should follow. Part II discusses the history of pretrial detention and cash bail in the United States. This will lead to how cash bail became a faulty and unreliable metric to determine whether someone could be a danger to their community and whether they pose a flight risk. Part III discusses the development leading to the PFA in Illinois. Part IV proposes that the PFA should grant judicial decision-making power to the Restorative Justice Community Courts and further explains how this expansion will lead to safer communities. While the Act will impact the entire state of Illinois, most of the analysis for this comment is focused towards Cook County.

57 UIC L. REV. 291 (2024), 37 p.

By: Thalia Anthony, Tamara Walsh, Luke McNamara & Julia Quilter 

Drawing on interviews with 164 people experiencing homelessness across Australia, this article discusses the concept of hyper-policing to account for excessive police interventions. Hyper-policing is exhibited in the sheer number of police apprehensions of people experiencing homelessness (quantitative aspect) and the extreme use of force (qualitative aspect). By deploying Wacquant’s (Daedalus 139(3):74–90, 2010) notion of hyper-incarceration in “ghettos”, we reveal that policing homelessness in Australia creates a panopticon on the streets and a conveyor belt into the panopticon of prisons. The lived experience of homeless participants demonstrates that hyper-policing is characterized by casual and constant encounters that reinforce homeless peoples’ status as ‘urban outcasts’ (Wacquant Int J Urban Reg Res 17:366–383, 1993). With growing pressures on access to housing and the cost of living across Western capitalist societies, policing is likely to play an increasing role in managing the housing crisis fallout. Homeless participants contend that the antidote to hyper-policing is not better policing but the dilution of policing. A common refrain among participants was for the police to ‘leave us alone’—a strategy that does not seek help from community policing but instead seeks peace on the streets. We articulate how the voices of homeless participants further ‘defund the police’ and abolitionist thinking by drawing attention to the need for housing justice over policing interventions in either benevolent or malevolent forms.

Critical Criminology, August 2024.

By Joanna R. Lampe

Federal law generally prohibits the production, distribution, and possession of marijuana for both medical
and recreational purposes. In April 2024, news outlets reported that the Drug Enforcement Administration
(DEA) planned to change the status of marijuana under the Controlled Substances Act (CSA) by moving
it from Schedule I to the less restrictive Schedule III. Such a move would relax some controls over
marijuana but would not immediately legalize medical or recreational use of marijuana under the CSA.
Notwithstanding the strict federal control of marijuana, in recent years, many states have repealed state
law criminal prohibitions on some marijuana-related activities, and medical and recreational cannabis
businesses now operate openly in some parts of the United States.
In response to the disparity between state and federal law, Congress has enacted appropriations legislation
prohibiting the Department of Justice (DOJ) from expending appropriated funds to prevent states from
implementing their own medical marijuana laws. Federal courts have interpreted the appropriations rider
to prohibit DOJ from bringing criminal drug prosecutions against certain persons and entities involved in
the state-legal medical marijuana industry, but they have differed as to the scope of conduct the rider
shields from prosecution.
This Legal Sidebar first outlines the legal status of marijuana under federal and state law. It then discusses
the medical marijuana appropriations rider and analyzes how federal courts have interpreted the
provision. The Sidebar closes with key considerations for Congress related to the appropriations rider and
the disparity between federal and state marijuana policy more generally.
Federal and State Marijuana Regulation
The plant Cannabis sativa L. and products derived from that plant have a number of uses and may be
subject to several overlapping legal regimes. In recent years, a significant divide has developed between
federal and state marijuana laws. On the federal side, the CSA imposes stringent regulations on the
cannabis plant and many of its derivatives. Activities involving controlled substances not authorized
under the CSA are federal crimes that may give rise to large fines and significant prison sentences.
Unless an exception applies, the CSA classifies cannabis and its derivatives as marijuana. Congress
classified marijuana as a Schedule I controlled substance when it enacted the CSA, reflecting a legislative

Washington, DC: Congressional Research Service, 2024. 5p.

By Megan Comfort, Jenn Rineer, Elizabeth Tibaduiza, and Monica Sheppard

The “pretrial process” refers to the events that happen between the time that one is suspected by law enforcement of violating the law and the time that charges are dismissed, the case is otherwise resolved, or the trial process begins. During the pretrial period, people are considered innocent under the law. The U.S. Supreme Court1 has stated, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The only two constitutionally valid reasons for holding someone in jail during the pretrial period are (1) to prevent flight or (2) to prevent harm to people in the community. Judges make decisions every day about whether to detain or release people going through the pretrial process, as well as about what conditions of release may be needed to help people succeed. Pretrial release assessments are designed to inform their decisions. Unlike assessments that involve a clinician or other professional drawing on their subjective expertise to make a recommendation, actuarial pretrial release assessmentsa rely on mathematical processes. Using large data sets with information about people who previously went through the pretrial process, researchers identify factors related to appearing for court hearings and not being arrested again if released. The researchers then create a sequence of instructions for a computer to follow (called an algorithm) that uses these factors to calculate an estimated likelihood that a person will appear in court and remain arrest free while their case is being resolved. This calculation—referred to as a “score”—is provided to the judge as information to consider when making decisions about pretrial release. A person’s score is also often provided as information to other courtroom actors, such as prosecutors, defense attorneys, and pretrial services officers. When thinking about actuarial pretrial release assessments, it is important to understand the history of the criminal legal system in the United States, which is deeply rooted in the legacy of slavery. Read Race and the Criminal Justice System2 by the Equal Justice Initiative to learn more. No actuarial pretrial release assessment tool or instrument is considered standard. Numerous assessments have been developed, and they vary in terms of the factors and instructions entered in the algorithm. Some use factors that are available through criminal legal system records, such as whether someone has been arrested before or has previously missed a court date. Others include factors like whether someone has a job, is enrolled in a substance use treatment program, or has a place to live. This information is usually obtained by talking with the person who has been arrested. At the time of this writing, pretrial release assessments use algorithms that are created by humans as opposed to ones that are generated by machine learning or artificial intelligence (AI). It is possible that future assessments will rely on AI, which would raise a different set of issues to consider. The use of actuarial pretrial release assessments is growing across the United States. Often, they are an element of broader system change aimed at reducing or eliminating the use of cash bonds, which require people to post money to be released from jail. Judges may consider the actuarial pretrial release assessment score when deciding what conditions of release—for instance, electronic monitoring or mandatory check-ins with pretrial services—are appropriate for a person. In systems that retain money bond as a potential release condition, assessments are sometimes used to inform decisions about bond amounts, but the impact on release is lessened if people remain in jail because they cannot afford to pay their way out. Judges may also use the score as part of their decision about whether to keep someone in jail or release them while their case is pending

APPR Research Brief, April 2024. Research Triangle Park, NC: RTI International, 2024. 5p.

Edited by Murdoch Watney

The chapters in this volume focus on the future of law and related disciplines: human rights and access to medical care, corruption and money laundering in state procurement, counterfeit medical products, IPR waiver on COVID-19 vaccines, emergency powers, freedom of expression, prison healthcare, the impact on labour law, access to courts and digital court processes, access to education and the impact on insurance law are but a few possible topics which are addressed.

Johannesburg, UJ Press, 2022. 288p.

By American Bar Association Working Group on Building Public Trust in the American Justice System

Released in June 2020, this Report provides a comprehensive overview of the role private companies play throughout the criminal justice system and how the use of these private companies impacts low-income individuals moving through the system. The Report summarizes research done by other entities, academics, journalists, and activists on specific aspects of privatization. The organization of the report tracks the sequence of a typical accused individual's experiences in the criminal justice system following arrest, demonstrating how costs compound as the individual moves through the system.

The Report acknowledges that courts and other government entities sometimes need to import expertise they lack, but it urges governments to recognize how low-income individuals too often can be relentlessly ensnared in the criminal justice system, not because they engage in ongoing criminal activity, but because they cannot pay the debts imposed by the system itself. Too often, by hiring private companies to handle what were previously governmental functions in the criminal justice system, government agencies exacerbate the cycle of mandatory fees, nonpayment, and consequent additional fees. Far too frequently, government authorities allow private companies to operate in the criminal justice system with little or no oversight and to charge fees untethered to actual costs.

The Report urges the ABA to adopt specific policy on the privatization of services in the criminal justice system, as well as to promote the policies, already in existence, calling for careful limitations on fines and fees.

Chicago: ABA, 2020. 36p.

By The Philadelphia District Attorney's Office, Data Lab

The Conviction Integrity Unit (“CIU”) was established in 2018 by District Attorney Larry Krasner. The CIU’s predecessor, the Conviction Review Unit (“CRU”), which was established in 2014, had operated for a number of years with only a small staff and a narrow mandate. The CRU only reviewed claims of actual innocence, and rarely undertook investigations into whether new evidence existed that could prove those claims. Cases where the defendant had confessed were largely excluded from consideration, as if false confessions (which occur in a quarter of DNA exonerations nationally) were always reliable. Today, the CIU is an independent unit within the Philadelphia District Attorney’s Office, reporting directly to the District Attorney, and involved in one out of every ten homicide exonerations in the country. When District Attorney Krasner transformed the unit from the CRU to the CIU, he immediately tasked it with a broader mandate: not only to review past convictions for credible claims of actual innocence but also to review claims of wrongful conviction and secondarily to consider sentencing inequities. Early in his first term, District Attorney Krasner merged the CIU with the Office’s Special Investigations Unit (“SIU”). The two units share a common focus on investigating official misconduct, and their cases frequently overlap. However, as the CIU and SIU personnel have grown and expanded their caseloads, the units were separated in the summer of 2020 to better accommodate each unit’s mission

The CIU’s mission is to ensure that justice is served by prosecutors at the Philadelphia District Attorney’s Office and to remedy the Office’s wrongful convictions. Pennsylvania prosecutors have limited post-con viction discretion in general and they have no legal authority to set aside convictions in the interest of justice. Since CIU prosecutors cannot unilaterally dismiss an existing conviction or free anyone we believe to be wrongfully incarcerated, the CIU makes a recommendation to the court that the petitioner be granted a new trial whenever its independent investigation leads it to conclude that a conviction lacks integrity. If warranted, the CIU will move to withdraw the charges against the petitioner or reduce the charges so that an equitable sentence can be imposed. In cases that are ultimately withdrawn or dismissed, the CIU will investigate and prosecute the actual perpetrator where feasible. However, given the inherent difficulties involved in investigating decades-old crimes where the original investigation was either botched or inadequate, identifying the real perpetrator and bringing that person to justice may be impossible. To date, the Philadelphia Police Department has declined to re-open and re-investigate old cases following exonerations. For example, Walter Ogrod was exonerated of a 1988 murder in 2020. While investigating the case, the CIU identified two alternate suspects. As of almost a year after Ogrod’s exoneration, however, police had not even begun the process of re-opening the underlying murder case. Additionally, the CIU believes that conviction integrity is more than simply fixing past mistakes and exposing misconduct. It also requires policies and processes to prevent future injustices. With this aim, the CIU helps craft office-wide policies and trainings designed to reduce the number of future wrongful convictions.

This report encompasses exonerations, commutations, and sentencing adjustments from January 1, 2018 through June 15, 2021. This report includes data on cases submitted to the CIU, active investigations, cases declined or closed, and cases awaiting review that are accurate as of May 31, 2021. Experts who have opined on the issue of best practices for conviction integrity units agree that in order to increase public understanding of and trust in such units, offices should publish annual reports detailing the results of their conviction and case reviews and actions taken. This report is the first report issued by the CIU under District Attorney Krasner and is a first-term report, rather than an annual report. Although annual reports were contemplated, they were postponed as a result of multiple factors ,including lack of resources, internal technology deficits, case load, and the COVID-19 pandemic.

Philadelphia District Attorney's Office, Data Lab. 2021. 47p.

By Kuc, Oktawian

Recent decades have brought international and municipal courts much closer together and induced meaningful cooperation. This holds true also for the International Court of Justice and domestic judicial institutions as they engage actively in an inter-judicial dialogue, particularly on the normative level. Due to the impact of globalisation and internationalisation, the World Court has expanded its jurisprudence to also accommodate references and analysis of external judicial organs and their pronouncements. Likewise, ICJ decisions are referred to and consulted by municipal courts as authoritative statements of international norms or assistance in fact determination. This monograph examines this inter-judicial dialogue in a comprehensive manner by identifying and analysing all its aspects as evidenced in respective jurisprudence. Surprisingly, the mutual conversation in judicial decisions between the World Court and national judicial institutions has drawn little attention from international legal scholarship, and the book is designed to fill this lacuna.

New York; London: Routledge, 2022.

By Rebecca Tiger

The number of people incarcerated in the U.S. now exceeds 2.3 million, due in part to the increasing criminalization of drug use: over 25% of people incarcerated in jails and prisons are there for drug offenses. Judging Addicts examines this increased criminalization of drugs and the medicalization of addiction in the U.S. by focusing on drug courts, where defendants are sent to drug treatment instead of prison. Rebecca Tiger explores how advocates of these courts make their case for what they call “enlightened coercion,” detailing how they use medical theories of addiction to justify increased criminal justice oversight of defendants who, through this process, are defined as both “sick” and “bad.” Tiger shows how these courts fuse punitive and therapeutic approaches to drug use in the name of a “progressive” and “enlightened” approach to addiction. She critiques the medicalization of drug users, showing how the disease designation can complement, rather than contradict, punitive approaches, demonstrating that these courts are neither unprecedented nor unique, and that they contain great potential to expand punitive control over drug users. Tiger argues that the medicalization of addiction has done little to stem the punishment of drug users because of a key conceptual overlap in the medical and punitive approaches—that habitual drug use is a problem that needs to be fixed through sobriety. Judging Addicts presses policymakers to implement humane responses to persistent substance use that remove its control entirely from the criminal justice system and ultimately explores the nature of crime and punishment in the U.S. today.

New York; London: NYU Press,  2012

By Fred Butcher, Amanda B. Cissner, and Michael Rempel

  Mandatory minimum sentencing laws gained traction in the late 1970s and early 1980s amidst rising crime rates, a “tough-on-crime” push, and punitive enforcement related to the “War on Drugs.”. Under mandatory minimums, individuals receive a stipulated amount of prison time, with no accounting for the circumstances of the offense or the characteristics of the person charged. As minimums typically flow from the charge and a person’s criminal history, they confer outsized power on prosecutors; in plea negotiations, prosecutors can wield the threat of a higher charge with a minimum for someone hesitant to accept a plea. Judges also lose discretion, and defense attorneys lose opportunities to present mitigating circumstances. In 1984, the federal Sentencing Reform Act established the U.S. Sentencing Commission, requiring that federal courts impose sentences within a range specified by the Commission and eliminating parole for federal charges. Many states took their cue from federal efforts, introducing minimum sentences and restricting the ability of parole boards to reduce sentences through good-time or earned-time credits. Proponents viewed sentencing guidelines (including mandatory prison) as a limit on judicial discretion and a means to eliminate disparities in sentencing. They touted the idea of “truth in-sentencing”—giving people charged, crime survivors, and the public an accurate idea of how much time those sentenced would actually serve. Minimums also arose in response to the perception—ginned up at the time and since debunked—that the more rehabilitative approach of the 1960s had failed to tamp down crime rates and recidivism. Recent decades, however, have seen mandatory minimums fall into disrepute. Several decades of harsh sentencing policies contributed to the astronomical growth of the U.S. prison population, which peaked at 1.6 million people held on an average day in 2009, a total which omits about 750,000 additional people held in local jails that year. The rapid consolidation of mass incarceration over these decades did not increase safety; evidence points instead to a modest increase in recidivism among individuals subject to custodial sanctions. Similarly, mandatory minimums and other sentencing laws passed in the 1970s and 1980s increased (and here more than modestly) persistent racial disparities in the criminal legal system. Black Americans today continue to be disproportionately represented in prison populations and are more likely to be charged with offenses subject to mandatory minimums—leading to longer sentences—than white Americans.8 According to the most recent analysis by the U.S. Bureau of Justice Statistics, among those detained in prisons nationwide, there were nearly identical Black and white populations (34% vs. 32%). Considering their representation in the general population, Black people are imprisoned at a rate five times greater than white people. Over the past two decades, numerous states, including New York, have weakened or eliminated mandatory minimum sentencing laws.10 Many of these reforms focused on eliminating minimums that apply primarily to drug offenses. This narrow focus has neglected much of the imprisoned population, as drug offenders make up a small percentage of those in prison. In 2022, the Vera Institute of Justice estimated just over half of New York’s approximately 300,000 prison sentences were the result of mandatory minimum sentencing laws. Declaring the laws “morally and fiscally unsustainable,” the organization called for their abolition.

New York: Center for Justice Innovation. 2022, 31pg