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 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 National Commission on COVID-19 and Criminal Justice.

This report provides criminal justice policymakers and practitioners with a priority agenda to prepare the nation’s criminal justice system for future public health crises. Through its recommendations, the Commission seeks to better balance the roles and responsibilities of the public health and public safety fields. Through its recommendations, the Commission seeks to better balance the roles and responsibilities of the public health and public safety fields. Launched at the end of July, the Commission received multiple reports and extensive testimony from leading national and local experts. Key findings include: + Crime: Property crime and drug offense rates fell from 2019 to 2020, but violent crime increased significantly. In particular, homicide rates increased by 42% during the summer months (June to August) in a sample of more than 20 medium to large cities, and by 34% in the fall (September to October).1 + Prisons: Prison populations have been reduced by about 5% nationally. On average, the COVID-19 mortality rate within prisons (61.8 deaths per 100,000 people in prison) was double the mortality rate for the general population, after adjusting for the gender, age, and race/ethnicity of those incarcerated. There are also substantial differences among states in the rate of prison infections and deaths.2 + Jails: Jail populations fell by 31% in the early weeks of the pandemic but have been slowly climbing toward prior levels since May.3 During the pandemic, the rates at which people have been rebooked on new charges 30, 60, and 180 days after release remain below pre-pandemic rates. Unfortunately, data regarding COVID-related infections and deaths in jails is scarce. + Racial and Ethnic Disparities: The COVID-19 pandemic may have exacerbated some racial and ethnic disparities in the criminal justice system. As jail populations began to fall in March at the onset of the pandemic, there were increases in the proportion of people who were Black, who were booked on felony charges, who were male, and who were 25 or younger. These changes in the population composition persisted even as jail populations began to rise again in early May.4 + Substance Use and Mental Health Disorders: More than 40 states have reported increases in opioid-related fatalities since the onset of the pandemic. Mandatory lockdowns, restrictions on movement, social distancing guidelines, orders limiting access to facilities for nonessential workers, and the absence of in-person treatment have created gaps in the system's ability to identify and monitor the needs and legal 3 requirements of people with substance abuse and mental health disorders, and to intervene when they are in distress.5 + Budgets: State and local governments face daunting budget deficits that will worsen as the pandemic wears on, and unemployment levels remain high. Because criminal justice operations (law enforcement, courts, and corrections) are funded more heavily by state and local governments than most other government functions, revenue shortfalls will disproportionately damage the criminal justice system without effective policy interventions.

Washington, DC: Council on Criminal Justice. 2020, 43pg

By Sandra Susan Smith and Cierra Robson    

In the year following Humphrey, a judicial decision mandating that judges consider both defendants’ ability to pay cash bail and non-monetary release options, San Francisco Sheriff’s Office (SFSO) reported a 308% increase in the number of people court-ordered for pretrial electronic monitoring (EM) – from 178 to 725. Although proponents of pretrial EM have described it as an effective alternative to pretrial incarceration – one that ensures public safety and court appearances – critics contend that it is simply an alternative form of incarceration, with many of jail’s attendant harms. With this debate in mind, we explore people’s recent experiences on pretrial EM in San Francisco – the extent and nature of difficulties program participants face while attempting to meet program obligations, the extent to which and how these difficulties put them at risk for noncompliance, and how threats of noncompliance interact with other major issues that system-involved people face to affect program outcomes. Through in-depth, semi-structured interviews with a convenience sample of 66 people court ordered to participate in pretrial EM between 2018 and 2020, we find that prior struggles, especially with housing insecurity and co-occurring disorders, made it much more difficult to meet program obligations, amplifying risks of noncompliance. Further, conditions of pretrial EM release also created hardships for many, making it even more difficult to find safe, affordable, and stable housing; to protect health and well-being; to secure employment and keep jobs; and to maintain physical, emotional, and psychological connections to loved ones. Indeed, pretrial EM often placed program participants in the untenable position of constantly having to choose between two or more equally awful options, such as program compliance or maintaining employment. These findings have major implications for debates about pretrial EM’s net-widening effects but also the inherent stickiness of the criminal legal system.

Cambridge, MA: Harvard University Kennedy School. 2022, 53pg

By Arthur L. Rizer

Over the past 20 years, conservatives have often been at the forefront of criminal justice reform efforts, including to reduce mandatory minimum sentencing, lengthy prison terms, and excessive criminal fines and fees and to improve conditions in prisons and jails. Rejecting the Nixonian “law and order” impulse, criminal justice reform has increasingly become incorporated into the conservative political self-identity. But this has been an elite-driven phenomenon, and it is open to question whether the roots of that political identity are deep enough to withstand the rising salience of crime as a political issue. This review traces how criminal justice reform came to be incorporated into the conservative political identity, raises questions concerning its staying power in the face of rising crime and increasingly strident progressive demands, and proposes some principles that might ground a more lasting conservative commitment to a just, proportionate system of criminal justice.

Annual Review of Criminology, v. 6. 2023, 18pg

By Oceana R. Gilliam, Brett Taylor, Lindsey Price Jackson, and Jarred Williams

In partnership with the Santa Barbara District Attorney’s Office, this study looks at the potential for offering meaningful alternatives to traditional prosecution for people accused of felony offenses in Santa Barbara, Los Angeles, laying out key aspects of planning a successful diversion program.

New York: Center for Justice Innovation. 2023, 40pg

By Sam J. Merchant

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders. Some have even suggested a racial or political motivation for lighter sentences. Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason—the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021. There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.” English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order. Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense. This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum. To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

Drexel University Thomas R. Kline School of Law Research Paper Series. 2024, 41pg

By Randolph Atkins, Trisann Jodon, Jennifer Davidson Conlon, and Amy Schick

This report was prepared in accordance with Section 25025 (Drug-Impaired Driving Data Collection) of the Infrastructure Investments and Jobs Act (IIJA), Pub. L. 117-58. The report summarizes what is known about the collection of drug-impaired driving data and its reporting to the Fatality Analysis Reporting System (FARS). The report describes the FARS data collection process and its toxicology reporting framework, the Recommendations for Toxicological Investigations of Drug-Impaired Driving and Motor Vehicle Fatalities – 2021 Update, identifies barriers that States encounter in submitting alcohol and drug toxicology results to FARS, provides recommendations on how to address those barriers, and describes the actions that the U.S. Department of Transportation and the National Highway Traffic Safety Administration are taking to assist States in improving toxicology testing in cases of motor vehicle crashes, and the reporting of alcohol and drug toxicology results in cases of motor vehicle crashes.

Washington, DC: United States. Department of Transportation. 2024, 34pg

By  Jana Hrdinova, Dexter Ridgway, Douglas A. Berman and Peter Leasure

Ohio Senate Bill 288 (134th G.A.) created Ohio Revised Code Section (2953.39) to allow prosecutors to initiate sealing or expungement actions on behalf of defendants previously convicted of low-level controlled substance offenses. After passage of this new law, the Drug Enforcement and Policy Center at The Ohio State University surveyed all elected or appointed prosecutors in Ohio to gauge their office's interest and willingness to initiate record sealing or expungement applications on behalf of people who have been previously convicted of a low-level controlled substance offense. Overall, about 12% of respondents stated that they were willing to pursue prosecutor-initiated sealing for low-level controlled substance offenses. For those who reported that they were unlikely to pursue prosecutor-initiated sealing, common explanations for not doing so included the lack of staffing resources, the lack of financial resources, the lack of data, the belief it is not the responsibility of prosecutors, and the sufficiency of the defendant-initiated system

Drug Enforcement and Policy Center. August 2023, 19pg