By Lynn LoPucki

LoPucki's provocative critique of Chapter 11 is required reading for everyone who cares about bankruptcy reform. This empirical account of large Chapter 11 cases will trigger intense debate both inside the academy and on the floor of Congress. Confronting LoPucki's controversial thesis-that competition between bankruptcy judges is corrupting them-is the most pressing challenge now facing any defender of the status quo."" -Douglas Baird, University of Chicago Law School ""This book is smart, shocking and funny. This story has everything-professional greed, wrecked companies, and embarrassed judges. Insiders are already buzzing."" -Elizabeth Warren, Leo Gottlieb Professor of Law, Harvard Law School ""LoPucki provides a scathing attack on reorganization practice. Courting Failure recounts how lawyers, managers and judges have transformed Chapter 11. It uses empirical data to explore how the interests of the various participants have combined to create a system markedly different from the one envisioned by Congress. LoPucki not only questions the wisdom of these changes but also the free market ideology that supports much of the general regulation of the corporate sector."" -Robert Rasmussen, University of Chicago Law School A sobering chronicle of our broken bankruptcy-court system, Courting Failure exposes yet another American institution corrupted by greed, avarice, and the thirst for power. Lynn LoPucki's eye-opening account of the widespread and systematic decay of America's bankruptcy courts is a blockbuster story that has yet to be reported in the media. LoPucki reveals the profound corruption in the U.S. bankruptcy system and how this breakdown has directly led to the major corporate failures of the last decade, including Enron, MCI, WorldCom, and Global Crossing. LoPucki, one of the nation's leading experts on bankruptcy law, offers a clear and compelling picture of the destructive power of ""forum shopping,"" in which corporations choose courts that offer the most favorable outcome for bankruptcy litigation. The courts, lured by big money and prestige, streamline their requirements and lower their standards to compete for these lucrative cases. The result has been a series of increasingly shoddy reorganizations of major American corporations, proposed by greedy corporate executives and authorized by case-hungry judges.

Ann Arbor: University of Michigan Press, 2006. 335p.

By Jodie M. Dewey , Patrick Hibbard , Dennis P. Watson , Juleigh Nowinski Konchak and Keiki Hinami 

Roughly 24–36% of people who are incarcerated in the U.S. are formally diagnosed with opioid use disorder (OUD). Once released, individuals involved with the criminal legal system (CLS) face increased risks of return to use and fatality and are 129 times more likely to die from an overdose within the first two weeks of release compared to those without CLS involvement. People who are CLS-involved and who are seeking a recovery living environment can access temporary stable housing through recovery homes. However, entering a recovery home can be difficult due to fragmentation among recovery housing organizations and their non-uniform application and screening procedures. A navigation pilot program was implemented to provide clients with recovery home placement advice, pre-screening, and referrals in Cook County, IL. Existing research on recovery homes has rarely examined the importance of recovery housing navigation for enhancing service engagement among CLS-involved individuals receiving medications for OUD. Methods.   Semi-structured qualitative interviews were conducted with 22 clients and three recovery housing navigators as part of a program evaluation of the navigation program pilot. Qualitative software was used to organize and qualitatively analyze transcripts through several rounds of coding producing emergent themes, which were then triangulated, and expanded using navigator data. Results.  Clients seeking recovery home services reported multiple prior challenges securing safe and supportive recovery living environments. Despite low initial expectations, clients described their interactions with housing navigators in favorable terms and felt navigators worked with them effectively to identify and meet their housing and substance use needs in a timely manner. Clients also commented on their partnerships with the navigator throughout the process. Interactions with navigators also calmed fears of rejection many clients had previously experienced and still harbored about the process, which bolstered client-navigator relationships and client motivation to engage with additional services. 

Health Justice 2024 Sep 14;12(1):37

By Leigh Goodmark

The Violence Against Women Act (VAWA) has been hailed as the federal government's signature legislation responding to gender-based violence. VAWA, passed in 1994 and reauthorized three times since then, has created several new programs and protections for victims of gender-based violence. VAWA is, however, primarily a funding bill and what it primarily funds is the criminal legal system. But the criminal legal response to gender-based violence has not been effective in decreasing rates of gender-based violence or deterring violence. A VAWA that discontinued funding for the criminal legal system and instead focused on economics, prevention, and community-based resources—a noncarceral VAWA—could better meet the needs of victims of gender-based violence and target the underlying causes of that violence.

Annu. Rev. Criminol. 2022. 5:115–31

By Rajan Khatiwoda

The main ambition of this book lies in a detailed analysis of the formation and enforcement of Nepal’s Mulukī Ain of 1854, specifically focusing on the provisions regarding homicide within the Mulukī Ains of 1854 and 1870. This study also examines contemporaneous legal records, revealing the complexities of the Ain’s implementation. The articles on homicide serve as a microcosm illustrating the broader evolution of Nepal’s legal code, which departed from outdated punishments like genital mutilation and introduced fines and imprisonment instead. Still, the innovations introduced into the Ain of 1854 were not uniformly progressive. The Ain in its various stages of development thus showcases the complex ways in which legal systems inevitably undergo transformation.

 Heidelberg: Heidelberg University Publishing (heiUP), 2024. 439p.

By JFA Institute

The Colorado Justice Data Landscape Report is provided as a service to the public and to policy makers interested in Colorado’s adult criminal and youth justice systems. This report is a compilation of existing information available on criminal justice systems that should be seen as a summary and a benchmark for future data metrics. It is not intended to be an exhaustive or single-use resource. The report also provides an overview of Colorado’s adult and juvenile justice legislation from 2013 to present. Direct links to how this legislation may have quantitatively affected the criminal justice system cannot be made from this analysis. This report is first an almanac of key criminal justice system indicators but can serve as a means to highlight areas where more in-depth research can be done to expand understanding on how demographics, socio-economic factors, and racial inequities can influence an individual’s involvement in the Colorado justice system. Criminal justice systems are often complex and influenced by many factors. It is impossible to attribute a single cause or condition to “explain” what may cause crime, individual behaviors, or emerging trends that cause harm or jeopardize public safety. The best we can hope for is to use historical data and provide context to explain trends and better inform policy makers. Government policy should be based on informed decision making and this report is designed as a visual summative reference document of tables, charts, and narrative to offer highlights into criminal justice trends in Colorado. The most up to date trend data on state demographic, socio-economic factors, crime, arrests, court processes, incarceration, and community supervision are provided by age, race/ethnicity, gender, and region, where available. This report attempts to use “person first” language where possible and will generally use this language unless directly referring to, citing or quoting data sources. Words that encompass and define multiple groups of individuals and situations, like homeless or absconder, remain unchanged.

The presentation of data in this report shows Colorado as a State that has been greatly impacted by high levels of overall population growth over the past twenty years. According to U.S. Census data, Colorado’s overall population grew every year in the last decade making it the 6th fastest growing state in the US since 20101 . During that time, the population became less White with People of Color making up almost 35 percent of the state population by 2022. While this percentage is still well below the comparable US percentage, it marks a sizeable shift in Colorado demographics. Total population growth was concentrated in but not limited to urban areas. While the resident population grew, Colorado also experienced positive metrics of prosperity as the unhoused population and unemployment declined universally prior to 2020. After implementation of COVID-19 societal restrictions in 2020, Colorado saw a sharp increase in unemployment to over two and half times that of pre-COVID levels, followed by a quick rebound two years later. The unhoused population has been a recent issue in Colorado’s Denver capital area since COVID, gaining both political and media attention. Incidents of homelessness in the metro Denver area have increased almost 30 percent since 2019. The number of individuals experiencing homelessness throughout the rest of the state, however, followed a different trend, declining slightly from 2020 to 2022. Like national trends, crime rates in Colorado have been on a long-term trajectory of decreasing. Because of Colorado’s rapidly growing population, it is necessary to examine crime as a rate standardized against the size of the state population. Beginning in 2021, Colorado experienced a sharp rebounding increase in both violent and property crime rates, although the increases were pocketed to certain crimes in each category. Total increases in the violent crime rate were fueled by an increase in aggravated assaults while increases in the total property crime rate were fueled by a spike in thefts of motor vehicles and motor vehicle parts. Court filings, felony case resolutions, and sentence dispositions have remained stable in recent years, with declines in 2020 due to COVID-19 court shutdowns. Directly related to the slowing of case processing by courts and decreased law enforcement activity, newly sentenced prison admissions and jail bookings both saw a downward trajectory. Like US trends, all Colorado adult incarcerated and supervised populations were greatly impacted. As the pandemic waned in recent years, these populations have begun to rebound but have yet to reach pre-CVOID levels. Colorado’s Youthful Offender System continues its long-term de-incarceration trend, housing less than one-quarter of the youths it did in 2005. This is the result of a historic movement in 1991 by the state to limit the use of the criminal justice system for youths. As Colorado and the nation move beyond the impacts of COVID 19, it is important to learn from both the non-intended impacts and the impacts of measures taken intentionally to address the pandemic on the criminal justice system to better inform future decision making.    

By Luke Kelly

This rapid literature review finds evidence of varied bail conditions in Kenya, Uganda, Rwanda and Tanzania. The African Charter, which all the states have ratified, supports the right to bail, as do other international instruments. Most of the countries surveyed allow bail, but conditions vary as do practical applications. This review surveys the law on bail, as well as evidence on how the laws are enacted in practice. Legal documents, as well as academic and policy analysis have been used. This includes some analysis of "wider structural socio-political contexts, existing institutions/rules of the game (both formal and informal), associated incentive and interest structures and the particular features of the balance of power between relevant actors and stakeholders. This review highlights some key findings, including in Kenya, there is a right to bail for all offences (serious offences by a court only), but much discretion is granted to the authorities, and research has found that the rules are applied inconsistently and there is a high rate of pre-trial detention. Meanwhile, bail is a right for most in Uganda, but bail for some serious crimes can only be granted by the High Court; however, in practice, it is hard to get bail and there is a high rate of pre-trial detention. In Rwanda, bail may be given for all offences provided conditions are met and the rate of pre-trial detention is relatively low, although there is evidence that some are detained outside of the judicial system and without a trial or the option of bail. Finally, in Tanzania, bail can be granted with certain mandatory restrictions and there is an on-going legal dispute about whether the right to bail extends to those accused of certain serious crimes. Research shows refusal of bail is being used against critics of the Tanzanian government and there is a high rate of pre-trial detention.

Brighton, UK: Institute of Development Studies, K4D helpdesk service, 2020. 14p.

By Arie Freiberg

The relationship between alcohol and other drugs (AOD), the criminal law, and sentencing has a long and tortuous history in Victoria. It is a saga of changing theories regarding the nature of substance use and addiction, the link between substance use and crime1 and oscillating responses to AOD-related crime ranging from ‘law and order’ to harm minimisation, from more severe penalties to decriminalisation. Over 170 years or so, Victoria’s sentencing responses have evolved from the traditional sanctions of fines, imprisonment, common law bonds and probation to a complex mix of pre-sentence interventions, diversion programs, a range of intermediate sanctions, various forms of suspended sentences and problem-oriented court models such as the drug and alcohol court. Although the criminal law forms the foundation of the legal framework for AOD offending, sentencing law and practice play an important part in that structure. They provide the context for medical and other interventions aimed at addressing the underlying causes of drug related offending.2 This paper argues that although there have been many innovations in sentencing, they have generally had only a marginal effect on AODrelated crime. While there exists a substantial literature on the sentencing of AOD-related offences (Sentencing Advisory Council 2015), and on AOD treatment policy (Ritter and Berends 2016), less attention has been paid to the structure, content and effectiveness of the various sanctions employed over the years. In contrast, this paper reflects on over 170 years of AOD sentencing reform, arguing that many of the interventions have been less than successful due to their poor construction, inadequate resourcing, lack of continuity and clarity of purpose, unrealistic and inflexible conditions, geographic disparity, and unresponsiveness to different groups of offenders. This paper concludes that sentencing alone can never provide the answer to AOD-related crime and that far more fundamental reform to the regulation of AOD-related offending is required. These conclusions reflect the current impasse between the clear and undeniable failure of the war on drugs and the continued pursuit of the same law and order policies that, asthis paper shows, have failed to provide lasting solutions  

Collingwood 3066, Victoria : The Victorian Alcohol and Drug Association (VAADA) i , 2023. 34p.

By Stephen Eide

Introduction - Mental health courts place seriously mentally ill defendants in community treatment as an alternative to incarceration. In recent decades, these and other “problem-solving” courts have expanded dramatically nationwide. These programs were long seen as core elements of criminal justice reform and frequently reduce recidivism more effectively than traditional court systems. But recently, problem-solving courts’ place in the criminal justice reform agenda has become more ambiguous. Not only has energy shifted toward more radical ideas (such as jail “abolition”), but some far-reaching reforms threaten court programs’ traditional incentive structure. Mental health courts rely on criminal sanctions as leverage; they lose that leverage when criminal justice reforms reduce or jettison the use of criminal sanctions entirely. This brief assesses mental health courts’ future in an era of criminal justice reform. It considers how sentencing, bail, and discovery reforms threaten the structure of mental health courts. It also evaluates attempts to “co-opt” the model, through New York’s “Treatment Not Jail Act.” Overall, the brief argues that mental health courts will retain their relevance for the foreseeable future, owing mainly to their small scale. Mental health courts serve only a small fraction of the universe of mentally ill offenders. They will therefore never contribute significantly to mass de-carceration, the goal of progressive reformers. But that also means that they are likely to retain their relevance, even if the use of criminal sanctions declines, as long as the population of mentally ill offenders remains substantial. This brief will conclude with suggestions on how to sustain mental health courts in the future 

New York: The Manhattan Institute, 2024. 15p.

By Steven A. Camarota and Karen Zeigler

Under current policy all persons — not just citizens — are included in the population count when apportioning seats to states in the U.S. House of Representatives and for votes in the Electoral College, which is based on House seats. Although we focus on the next census in 2020, the impact of immigration has been building for decades as the number of people settling in the country has increased dramatically. This report examines the cumulative impact of immigration, both legal and illegal, on the apportionment of House seats; this is not an analysis of the impact of immigration only since the previous census. Apportionment is a zero-sum system; by adding more population to some states rather than others, immigration will continue to significantly redistribute political power in Washington.

Among the findings:

The 2020 census will show that the presence of all immigrants (naturalized citizens, legal residents, and illegal aliens) and their U.S.-born minor children is responsible for a shift of 26 House seats. This is the cumulative impact of immigration, not the change from the previous census.To put this number in perspective, changing the party of 21 members of the current Congress would flip the majority in the U.S. House. The 26 seats represent the effect of all immigrants and their children 17 years of age and younger, and is not the change from one census to another.Ohio will have three fewer seats in 2020 than it otherwise would have had but for the presence of all immigrants and their minor children in other states. Michigan and Pennsylvania will have two fewer; and Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Utah, West Virginia, and Wisconsin will each have one fewer seat. California will have 11 more seats in 2020 than it otherwise would have; New York and Texas will have four more seats each; Florida will have three more seats; New Jersey will have two more seats; and Illinois and Massachusetts will each have one additional seat.Of the 26 seats that will be lost, 24 are from states that voted for Donald Trump in 2016. Of states that will gain House seats because of immigration, 19 seats will go to the solidly Democratic states of California, New York, New Jersey, Massachusetts, and Illinois. Texas is the only solidly Republican state that gains, while Florida is a swing state.Doing the same calculation, but counting only immigrants themselves (naturalized citizens, legal permanent residents, guestworkers, foreign students and illegal aliens), but not their U.S.-born minor children, will redistribute 18 seats in the House in 2020. Ohio will have two fewer seats than it otherwise would have had but for the presence of immigrants in other states. Alabama, Georgia, Idaho, Iowa, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Missouri, North Carolina, Oklahoma, Pennsylvania, Tennessee, Utah, and West Virginia will each have one fewer seat. California will have seven more seats in 2020 than it otherwise would. New York and Florida will have three more each; Texas and New Jersey will have two more seats; and Illinois will have one more seat.Looking at non-citizens and their U.S.-born minor children redistributes 10 seats, with Ohio, Michigan, Alabama, Idaho, Minnesota, Missouri, West Virginia, Tennessee, Pennsylvania, and Rhode Island each having one fewer seat. California will have four more seats than it otherwise would have; Texas will have three more seats; and New York, Florida, and New Jersey will have one additional seat each.Looking at only non-citizens (legal residents and illegal immigrants) redistributes eight seats, with Ohio, Michigan, Missouri, Minnesota, Alabama, Idaho, West Virginia, and Rhode Island each having one fewer seat in 2020 due to the presence of non-citizens in other states. California will have three additional seats; Texas will have two more seats; and Florida, New Jersey, and New York will each have one more seat.Illegal immigrants and their U.S.-born minor children will redistribute five seats in 2020, with Ohio, Michigan, Alabama, Minnesota, and West Virginia each losing one seat in 2020 that they otherwise would have had. California and Texas will each have two additional seats, and New York will have one additional seat.Illegal immigrants alone in the 2020 census will redistribute three seats, with Ohio, Alabama, and Minnesota each having one fewer seat than they otherwise would have had, while California, New York, and Texas will have one additional seat.

Center for Immigration Studies, 2019. 11p.

By Olivia Chollet, Jack Thrower, Alice Grundy

Traffic fines in Australia hit low-income earners disproportionally hard. One potential solution to this problem is traffic fines that are proportional to the income of the offender. This discussion paper outlines one way of applying this model – drawn from Finland – to Australia, including a breakdown for states. With cost of living already pushing many Australians into financial difficulties, traffic fines can force low-income people into choosing between essential spending and paying fines. By contrast, traffic fines are a minor annoyance for Australia’s high-income earners. This paper outlines a more equitable model for speeding fines based on a Finnish proportional fine system.

Key points

Finland has a minimum fine amount but otherwise calculates a fine based on a driver’s income and whether they have dependentsThis is better for equality, and sometimes catches headlines when really big fines are issued to billionairesAustralian states are already moving in this direction: in NSW there is already a Centrelink discount.

Canberra: The Australia Institute, 2024. 22p.

By Elizabeth Moore; Suzanne Poynton; Pierrette Mizzi; Una Doyle

Aim

This study aims to assess whether, from the perspective of the judiciary, the NSW sentencing reforms, commencing in September 2018, are operating as intended and to identify any impediments to implementation.

 Background

In September 2018 significant legislative changes were introduced to expand the community-based sentencing options available to offenders in NSW. A key driver for the changes was to increase opportunities for offenders to be supervised and to engage in rehabilitation programs. To assess whether the sentencing reforms are operating as intended and identify any barriers to implementation, an online survey of 93 NSW judicial officers was undertaken In October 2019.

The survey aimed to assess:

judicial officers’ perceptions of the sentencing reforms whether judicial officers feel there is more flexibility in sentencing decisionswhether the process of obtaining a ‘Sentencing Assessment Report’ for a community-based order had improvedwhether any barriers exist to imposing the new community-based sentencing options.

 Key findings

Overall, the majority of judicial officers agreed that the sentencing reforms are operating as intended.
Table 1 shows: 71% agreed the changes have increased the opportunity for offenders to serve supervised community-based orders.57% agreed that the new community-based options provide more flexibility in sentencing decisions.47% agreed that the changes have increased the opportunity for offenders to participate in rehabilitation programs. In addition, 89% agreed that the ‘Sentencing Assessment Reports’ are provided on time and 65% agreed the reports provide sufficient information.

However, judicial officers identified a number of concerns including:

the suspension of supervision for low-medium risk offendersthe lack of information available to the court regarding ICO breachesICO exclusions for certain offenceslack of services particularly in rural locations to allow the full range of conditions to be used.

 Conclusion

While the majority of judicial officers surveyed agree that the sentencing reforms are operating as intended, a number of practical issues remain that may affect the extent to which the expanded community-based sentencing options are used.

(Crime and Justice Bulletin No. 230). Sydney: NSW Bureau of Crime Statistics and Research. 2020. 31p.

By Ilya Klauzner; Steve Yeong

Background

There are two bail authorities in New South Wales (NSW): the police and the courts. These authorities are tasked with determining whether an accused person should be held on remand prior to the finalisation of legal proceedings. Remand is associated with adverse social, economic, legal and emotional outcomes for the individual and represents a significant financial burden to the state. It is, therefore, crucial for policymakers to understand what factors drive the bail decision-making process. This bulletin seeks to understand the application of the current NSW bail laws (Bail Act 2013 (NSW)). Specifically, it examines the relative importance of defendant (e.g., age, gender and Aboriginality) and case characteristics (e.g., prior offending, the number and nature of the offences to which the defendant is accused) in bail decisions. Consistency of bail decisions across police areas and courts is also considered.

Key findings

Bail determinations in NSW between January 2015 and November 2019 are examined. The findings can be summarised as follows: Legal factors, including the number of concurrent offences, prior offences and prior prison sentences, strongly increase the likelihood of bail refusal by the police and court. Defendants accused of a Show Cause offence, which carries a presumption against bail, are far more likely to be refused bail than other defendants.Some extra-legal factors are also associated with a significant increase in the probability of being bail refused. Adult Aboriginal defendants are more likely to be bail refused by the police than non-Aboriginal defendants, while male defendants and those aged between 35 and 44 years are more likely to be bail refused by both the police and the courts.There is substantial variation in bail decisions across police jurisdictions and magistrates for matters with equivalent case characteristics. Moving between different police jurisdictions or magistrates may have a greater impact on the probability of bail refusal than many legal factors, including prior court appearances and bail breaches.The police and courts are largely influenced by the same factors in their bail decisions. However, there is evidence to suggest that police are imposing a higher risk threshold than the courts. Further, the police are more likely to refuse bail for domestic violence and/or alcohol related offences than the courts.Generally, factors influencing bail refusal are similar for adults and juveniles. However, breaches of bail have a larger influence on the probability of juveniles being refused bail compared with adults. Extra-legal factors (e.g., gender) also seem to be less important in bail decisions involving juveniles.

Conclusion

Legal factors, in particular offence type and prior offending, have the largest impact on both the police and court decision to refuse bail. The influence of certain extra-legal factors, including Aboriginality, in bail determinations and the substantial variation across police jurisdictions and magistrates warrants further research.

(Crime and Justice Bulletin No. 236). Sydney: NSW Bureau of Crime Statistics and Research. 2021. 32p

By Elaine Hennig and Jay Jenkins 

The media performs a powerful role in the policy arena, not simply because its reporting informs the public, but because its editorial decisions have the potential to influence public opinion and determine which issues capture the public’s attention. In this report series, we explore the role of local Houston media outlets in shaping the narrative of bond reform. To provide some background: Since Harris County’s misdemeanor bond system was first declared unconstitutional by a federal district court in 2017, the county has implemented several reforms as part of the resulting settlement. Before the resolution of the lawsuit, indigent defendants were detained pretrial solely based on their inability to pay bond, while their wealthier counterparts could post bond and expect prompt release. The county corrected this wealth-based discrimination by requiring the majority of misdemeanor defendants to be released on personal recognizance bonds, which do not require an upfront cash payment. By providing defendants with a new system for bonding out of jail that does not discriminate based on income, the implemented reforms ensure that defendants are not prematurely punished with jail time—upholding the principle of a ‘presumption of innocence’ for the criminally accused, and preventing taxpayers from footing the bill for unnecessary weeks or months of incarceration. Yet despite the more equitable reforms to Harris County’s misdemeanor system, opponents of bond reform frequently criticize the changes. In Part I of this report series, we analyzed the impact of six Houston-area television stations, demonstrating that these outlets consistently provided a platform for opponents of bond reform to frame pretrial release as a threat to public safety, both through the propagation of false narratives and the exploitation of race-based disparities. In Part II, we turn to newspaper media, aiming to understand the Houston Chronicle’s coverage of bond. This report draws on a content analysis of ϰϵϵ news articles published by the Chronicle between January 2015 and December 2021. Stories qualified for selection if they discussed bond reform, bond debates, and/or people who allegedly committed crimes while released on bond. In the context of Harris County bond policies, the media contributes to the local discourse on bond in two major ways: 1) through its coverage of bond reform, which informs the public about the impetus for reform and the debates surrounding bond-related policy changes, and 2) through its coverage of crime, which concretizes these policy discussions by drawing the reader’s attention to specific cases involving bond. Through our analysis, we found that the Houston Chronicle provided balanced and informative coverage of bond reform, but the newspaper sacrificed its impartiality by disseminating negative coverage of legally innocent defendants who were rearrested while released on bond. The Chronicle can be commended for its balanced coverage of bond reform itself, but the impact of its biased crime coverage on the bond reform discourse should not be underestimated. Research demonstrates that much of the general public’s understanding of crime comes from consumption of mass media. Because the media has the discretion to determine which crime stories are newsworthy, the criminal cases elevated in the media are usually the most extreme, statistically rare cases, selected to capture the public’s attention. As a consequence of this disproportionate coverage of the most sensational cases, the public gains a distorted perception of crime that leads to heightened fear of victimization. In the context of bond, this distortion is achieved through the coverage of stories about a  defendant rearrested for a violent crime while released on bond. Although such an occurrence is statistically rare, its frequency is exaggerated in crime coverage, which has the effect of generating public fear of pretrial release. Crime coverage, therefore, has just as much potential to inform the public’s perspective on bond reform as news coverage that directly addresses bond policies. Though the ChƌŽŶicůe͛Ɛ crime coverage undeniably impacts the public’s perception of bond release, our analysis demonstrates that this coverage does little to inform the public about the arrest, bond, and case dismissal process. Our review of the criminal cases covered by the Chronicle reveals that many had not reached a disposition at the time of our analysis; it also reveals a high proportion of case dismissals among the cases that did reach a disposition. The high proportion of unresolved and dismissed cases shows these stories focus on unproven criminal allegations rather than convictionsͶcalling into question the utility of reporting on criminal cases prematurely. Criminal allegations are necessarily speculative and uncertain, and covering them requires reliance on the narratives of law enforcement and prosecutors, sources incentivized to insinuate guilt. Further, the strict coverage of arrests (versus actual case outcomes) results in a distorted and therefore misleading portrayal of crime and the criminal legal system. 

Austin: TEXAS CENTER FOR JUSTICE AND EQUITY, 2022. 29p.

By Irene Oritseweyinmi Joe

While the public defender is critical to protecting individual rights in the U.S. criminal process, state governments take remarkably different approaches to distributing public defense services. Some states organize indigent defense as a function of the executive branch of state governance; others administer indigent defense through the judicial branch. The remaining state governments do not place the public defender within any branch of state government, instead delegating its management to local counties. This administrative choice has important implications for the public defender’s efficiency and effectiveness. It influences how the service will be funded and the extent to which the public defender, as an institution, will respond to the particular interests of its local community. So, which branch of government should oversee the public defender? Should the public defender exist under the same branch of government overseeing both the prosecutor and police—two entities the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch—although this branch is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender that is independent of statewide governance is ideal, even if that might render it a lesser player among the many government agencies battling at the state level for limited financial resources. This Article answers the question of state assignment by engaging in an original examination of each state’s architectural choices for the public defender. Its primary contribution is to enrich our current understanding of how each state manages the public defender and how that decision influences the institution’s funding and ability to adhere to ethical and professional mandates. It concludes the public defender should be an important executive function in this modern era of mass criminalization and articulates modifications that would improve such a state design by insulating it from pressure by other system actors.

106 Iowa L. Rev. 113 (2020)

By Max Travers, Emma Colvin, Isabelle Bartkowiak Théron, Rick Sarre, Andrew Day, Christine Bond

In this paper we seek to review the rapid rise in remand in custody rates in Australia. In particular, and in response, we ask and discuss three specific questions:

1. To what extent do defendants applying for bail have vulnerabilities?

2. To what extent can risk analysis tools that seek to predict breach of bail terms be relied upon?

3. To what extent can the emerging pre-trial services programs in Australia reduce remand in custody populations?

Trends & issues in crime and criminal justice no. 610. Canberra: Australian Institute of Criminology. 2020. 13p.

By Jim Quinn  

Since New York State’s 2019 bail reform went into effect, controversy has swirled around the question of its impact on public safety—as well as its broader success in creating a more just and equitable system. The COVID-19 pandemic (which hit three months after the bail reform’s effective date), the upheaval following the killing of George Floyd, and the subsequent enactment of various police and criminal justice reforms are confounding factors that make assessing the specific effects of the 2019 bail reform particularly complex. This paper attempts to give the public a better sense of the risks of this policy shift and the detrimental effect that the changes have had on public safety. First, I will lay out the content of the bail reform and will measure pertinent impacts on crime and re-offending rates. Then I will review changes made in the 2020 and 2022 amendments. I will look at the push for supervised release and closing Rikers Island and how those initiatives fed into the momentum behind these laws. Finally, I will propose recommendations to improve bail reform’s impact on public safety, which include: 1. Allow judges to set bail, remand, release on recognizance (ROR), or conditions of release for any crime and any defendant. There should be a presumption of release for misdemeanors and nonviolent felonies, which could be rebutted by the defendant’s prior record or other factors that indicate that the defendant is a flight risk. There should be a presumption of bail, remand, or nonmonetary conditions for defendants charged with violent felonies or weapons offenses. This presumption could also be rebutted by evidence of the defendant’s roots in the community, lack of criminal record, and similar factors

New York: The Manhattan Institute, 2022. 29p.

By Ionnuala Ratcliffe and Penelope Gibbs

How are young adults treated in the magistrates’ courts? How, if at all, is their maturity considered and taken into account by the court? This report seeks to answer these questions, based on testimony from 82 courtwatchers, volunteer members of the public who observed London magistrates’ courts for six months in the second half of 2023. Sentencing Council guidelines recognise the potential impact of young adults’ developing maturity on their responsibility for an offence, their ability to cope with a prison or community sentence, and their capacity to participate effectively in court proceedings. Courtwatchers observed almost 200 hearings involving a young adult defendant. They reported that maturity was mentioned in less than a third of hearings observed. When maturity was raised, it usually wasn’t covered in depth, rather “mentioned as an aside, no specific arguments made.” Some maturity arguments applied specifically to the offence or defendant: on the young adult’s susceptibility to peer pressure, their difficulties assessing risk, the potential impact of a court sanction on their education or employment, and their potential for rehabilitation. But these were few and far between. When mentioned, arguments about maturity did sometimes prompt the court to reduce the severity of the sentence given, or at least to postpone sentencing until they had more information about the defendant. But most of the time, comments about maturity were dismissed by court decision makers or deprioritised compared to other factors. Courtwatchers observed young adults being treated much the same as older defendants, with little direct engagement with young adult defendants, frequent use of the secure dock and challenges arranging interpreters. This report sets out recommendations for how the courts can deal with young adult defendants more effectively by considering maturity more thoroughly. 

London: Transform Justice, 2024. 31p.

By Fionnuala Ratcliffe and Penelope Gibbs

This report summarises findings from CourtWatch London, a mass court observation project where citizen volunteers observed magistrates’ court hearings and reported what they saw. From July to December 2023, a diverse group of 82 volunteer members of the public (courtwatchers) visited their local London magistrates’ courts armed with a booklet of observation forms and a small amount of training. Between them they observed over 1,100 hearings, reporting on the treatment of defendants, the decision-making of magistrates and district judges, and their experiences of attending magistrates’ court as a public observer. This report focuses on courtwatchers’ observations of the court process and the court’s decision-making. We have written separate reports on their experiences of being a public observer trying to access and understand the courts, and their reflections on how young adult defendants are treated. Our first report - “Why are you here?” Open justice in London magistrates’ courts - highlights how court watchers found it hard to comprehend the court system. Their observations suggested defendants were struggling too. People cannot have a fair trial without a clear understanding of what they are accused of, what is happening in court, and the implications of the court process. Our court watchers observed magistrates’ courts often falling short. Defendants were usually physically isolated from the rest of the courtroom in the secure dock, where it was all too easy to ignore them for the majority of the hearing. A significant minority of defendants appeared without a lawyer. Courtwatchers felt that unrepresented defendants were severely disadvantaged by their lack of legal advice, even though court staff and judges made efforts to explain things. Defendants who needed interpreters were some of the worst served by the court. And court watchers were alarmed to see hearings going ahead despite some defendants being unwell. Despite these concerns, courtwatchers felt judgments made were overall fair, reasoned and practical. They appreciated magistrates and judges who took the time to get to the bottom of things and to find the most productive solution for the individual in front of them. Court watchers were most frustrated by what seemed to them ineffective or counterproductive sanctions. This included fines and other court costs which had to be paid by people of severely limited means, or punitive sentences given to people with serious drug addiction or mental health problems which did nothing to address those issues. Our court watchers also felt some time was wasted on cases that should not have been in court at all. Court watchers usually agreed with the court’s decision to remand people, although their reports highlighted some examples where bail might have been more appropriate. A few court watchers picked up on inconsistencies in how defendants were dealt with which they saw as evidence of racial bias.  Court watchers were shocked by what they perceived to be the inefficiency of courts. They expected hearings to start on time and to run continuously throughout the day. They were concerned that the valuable time of the many professionals in the room was being wasted. It was hard for courtwatchers to work out why so little was happening since court staff and judges seldom explained the delays. As court watchers gained experience, they gradually discerned the reasons - prosecution and defense advocates who didn’t have the right information in advance, nor the time to prepare for hearings, defendants not turning up for their hearing (often through no fault of their own) and technology which didn’t work well. The fundamental flaw in our court system highlighted by court watchers - that many defendants don’t know what’s happening in the court and so can’t meaningfully participate in the process - needs urgent action. We need simpler court proceedings so the process is intelligible to a layperson, and legal aid is available for a wider range of circumstances. At the very least, we recommend introducing a support service for defendants, available in every magistrates’ court. The use of court fines should be reduced, particularly for people whose poverty was a contributing factor to their offence. Fines should be replaced with sentences which instead address the drivers of crime. To improve court efficiency, research should be commissioned to understand the main causes of court delays and how they might be addressed. Meanwhile, the number of cases listed could be reduced by discontinuing some very old ones and encouraging the police to offer more out of court resolutions for lower-level crimes. This project shows the power and potential of court watching in England and Wales. The commitment from our volunteers to observe and report on over 1,100 hearings shows that ordinary people are willing to give their time and energy to hold our courts accountable. Their reflections, which focused on access, fairness and effectiveness, bring a unique perspective to the scrutiny of our courts. The act of courtwatching itself changed how many of our volunteers viewed the justice system and those who get into trouble with the law. And it’s possible that courtwatcher presence played a small role in encouraging the courts they observed to be fairer and more compassionate towards those who are swept up in our justice system

London: Transform Justice, 2024.   55p.

By Dorota Pudzianowska

This book discusses the fundamental issues of public law in the area of statelessness from the perspectives of comparative law and international law standards. The author proposes an approach in which statelessness is not a homogeneous concept but is best analyzed and responded to through the lens of different categories of statelessness. This accounts not only for the existence of different categories of stateless persons (e.g., voluntary or involuntary) but also for different assessments and needs of their respective situations for purposes such as prevention mechanisms. The book demonstrates the conceptual and regulatory relevance of this important differential aspect of the international law on statelessness (with implications for domestic legal systems).

Bern: Peter Lang International Academic Publishers, 2023. 272p.

By Joshua Grossman, Julian Nyarko, Sharad Goel

  After arrest, criminal defendants are often detained before trial to mitigate potential risks to public safety. There is widespread concern, however, that detention decisions are biased against racial minorities. When assessing potential racial discrimination in pretrial detention, past studies have typically worked to quantify the extent to which the ultimate judicial decision is conditioned on the defendant’s race. Although often useful, this approach suffers from three important limitations. First, it ignores the multi-stage nature of the pretrial process, in which decisions and recommendations are made over multiple court appearances that influence the final judgment. Second, it does not consider the multiple actors involved, including prosecutors, defense attorneys, and judges, each of whom has different responsibilities and incentives. Finally, a narrow focus on disparate treatment fails to consider potential disparate impact arising from facially neutral policies and practices. Addressing these limitations, here we present a framework for quantifying disparate impact in multi-stage, multi-actor settings, illustrating our approach using 10 years of data on pretrial decisions from a federal district court. We find that Hispanic defendants are released at lower rates than white defendants of similar safety and nonappearance risk. We trace these disparities to decisions of assistant US attorneys at the initial hearings, decisions driven in part by a statutory mandate that lowers the procedural bar for moving for the detention of defendants in certain types of cases. We also find that the Pretrial Services Agency recommends detention of Black defendants at higher rates than white defendants of similar risk, though we do not find evidence that these recommendations translate to disparities in actual release rates. Finally, we find that traditional disparate treatment analyses yield more modest evidence of discrimination in pretrial detention outcomes, highlighting the value of our more expansive analysis for identifying, and ultimately remediating, unjust disparities in the pretrial process. We conclude with a discussion of how risk-based threshold release policies could help to mitigate observed disparities and the estimated impact of various policies on violation rates in the partner jurisdiction

Journal of Empirical Legal Studies, 2023;1–48.