By the Justice Policy Institute

Over the last 20 years, elected officials and juvenile justice system stakeholders have changed policies and practices to create a more developmentally appropriate youth justice system, resulting in a reduction of the number of confined youth by 60 percent since the 1990s and reducing the number of youth automatically prosecuted as adults by 56 percent since 2007. This change in course is largely the result of policies that restrict the use of secure detention facilities and limit prosecution of youth in the adult court system. These trends in declining youth incarceration rates, while positive, have primarily focused on youth involved in nonviolent offenses. Moreover, despite a significant decline in the overall use of confinement, racial disparity in the juvenile justice system has worsened in many jurisdictions. This is due, in large part, to the fact that too many jurisdictions still rely on confinement and transfer to the adult system for youth who engage in violence. The research clearly shows that youth are best served in the least restrictive setting, regardless of underlying offense type. However, state practices frequently do not follow these lessons, turning to secure settings and transfer to the adult criminal justice system when other interventions would be more effective at addressing the underlying cause of the behavior and delivering a better public safety return on investment. Instead, these punitive practices worsen racial disparities, saddle youth with the collateral consequences of a criminal record if they are
prosecuted in the adult criminal justice system, and contribute to recidivism.

Washington, DC: Justice Policy Institute, 2020. 24p.

By Kim Shayo Buchanan

We at the Center for Policing Equity (CPE) advocate reducing the footprint of law enforcement by removing police from places where they do not belong and cannot help. People’s health care, their pregnancy outcomes, and their gender and queer identities exemplify situations that should not involve police. Law enforcement can and should step back from enforcing such laws, as police have traditionally done. Enforcement of anti-abortion, anti-trans, and anti-LGBTQ+ laws would divert finite police resources away from serious and violent crimes that communities care about; squander the goodwill police have built with communities; embolden extremist violence; and endanger vulnerable communities—all while doing nothing to keep the public safe. We urge mayors and municipal governments to instruct law enforcement agencies to deprioritize enforcement of these new, victimless crimes. Instead, officers’ time and departmental resources should be used to prevent and investigate serious crimes that affect public safety. Police and municipal governments can take the following steps to deprioritize enforcement and protect their communities against the threats and harms these laws create: Municipal governments and law enforcement should take these actions: 1. Affirm a public commitment to the rights and safety of LGBTQ+ and pregnant people. 2. Consult with affected communities, on a structured and ongoing basis, about how to deprioritize enforcement. 3. Consult with affected communities about how loud and public to be about deprioritizing enforcement. 4. Ban discrimination based on sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcome, and provision or receipt of reproductive health care, abortion care, and gender-affirming care (whether real or perceived). a. Ban discrimination against municipal employees, including police officers, on these bases. b. Ban discrimination by municipal employees, including police officers, on these bases. 5. Provide employment benefits such as medical leave, comprehensive health coverage, travel for out-of-state health care, and assurances that any investigation or prosecution by another agency for breach of anti-abortion, anti-trans, or anti-LGBTQ+ laws will not affect the person’s employment. Municipal governments should take these actions: 6. Direct law enforcement leadership to allocate no funds to enforce anti-trans, anti-LGBTQ+, and anti-abortion laws. 7. Ban discrimination by municipal contractors and by local businesses based on sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcome, and receipt of abortion care and gender-affirming care. 8. Consider using municipal funds to ensure community access to health care needs such as prenatal care, doula care, lactation support, and out-of-state gender-affirming and reproductive health care. 9. Oppose any effort to criminalize use of municipal roads to access abortion, gender affirming care, or any other health care. Law enforcement should take these actions: 10. Protect people and communities against hate crimes and vigilante violence. Use and enforce restraining orders and, when warranted, laws against trespass and disorderly conduct. 11. Consult with abortion providers, reproductive justice advocates, and escorts; gender affirming care providers; hospital management and staffers; and trans and LGBTQ+ advocates about the risks they face and about how best to protect their rights and safety. 12. Amend policy manuals, as needed, to clarify that it is misconduct for police officers and civilian employees to discriminate against members of the public on the bases of sexual orientation, gender identity, pregnancy, pregnancy outcome, or receipt of abortion care or gender-affirming care. 13. Do not enforce anti-trans, anti-LGBTQ+, or anti-abortion laws. Allocate no resources to their enforcement. Conduct no investigations and make no arrests. Amend policies and procedures to direct law enforcement employees as follows: a. Do not conduct electronic, in-person, or other surveillance to detect violations of these laws. b. Do not use traffic-safety laws, pretextual stops, or any other means to investigate whether drivers, passengers, or pedestrians may be pregnant, may be transgender, or may be traveling within or out of state to receive prohibited health care. c. Take no action on any report of a violation of anti-abortion, anti-trans, or anti-LGBTQ+ laws except, as needed, to protect the person against potential violence by the caller. d. Do not investigate whether anyone is or has been pregnant, or how or why their pregnancy may have ended. e. Do not investigate anyone’s gender identity, their biological sex, or their assigned sex at birth. f. Take no action when you see a person you think may be transgender unless you have reasonable grounds to suspect the person is committing a crime for which a cisgender person would be investigated. g. Do not enter bars, theaters, libraries, or anywhere else to identify drag performances. h. Apply the same standards of obscenity to LGBTQ+ content or performance as to heteronormative1 content or performance. i. Do not enter bathrooms, changerooms, or anywhere else to ascertain the assigned sex at birth or sex characteristics of people who are there. 14. Require multiple levels of written supervisory approval, including by the chief of police, before an officer can initiate an arrest or investigation for any alleged violation of an anti-abortion, anti trans, or anti-LGBTQ+ law. 15. Ensure that officers and dispatchers are aware of agency policy not to investigate alleged violations of such laws, and that they understand specific laws in the state and locality. 16. Remind officers that they and other people cannot know by looking whether someone is transgender, what their assigned sex at birth was, or whether they are pregnant. a. Do not assume that a person is engaged in sex work based on their gender presentation. b. Do not treat possession of condoms as evidence that a person intends to engage in sex work. 17. Do not treat the presence or existence of a person who is – or is perceived to be – transgender, queer, or gender-expansive as a threat to anyone. 18. Ensure that law enforcement does not interfere with provision of health care. a. Do not station police officers in emergency departments or at hospitals or clinics to investigate patients. b. Do not investigate or interrogate patients or health care providers about a patient’s health care, gender identity, biological sex, pregnancy, health condition, or any reason they may have sought or received medical treatment. c. Do not seek disclosure of patients’ health information or records to investigate any suspected violation of an anti-abortion, anti-trans, or anti-LGBTQ+ law. d. Do not partner with hospitals or health providers to surveil or investigate patients who are pregnant, miscarrying, birthing, thought to be transgender, or suspected of using substances. 19. Do not second-guess medical determinations of whether an abortion procedure was medically necessary within the meaning of a state’s criminal laws. 20. Meet with hospital management, together with local prosecutors – and with physician representatives and emergency health care providers – to understand their concerns about criminal liability and to clarify that police and prosecutors will not second-guess their medical decisions about pregnancy or gender-affirming care   

West Hollywood, CA: Center for Policing Equity, 2024. 35p.

Edited by Francesca Galli, Anne Weyembergh

Criminal law has undergone tremendous changes in the past decades. A number of new trends have been challenging the traditional features of “modern criminal law” as founded by Cesare Beccaria in the 18th century and developed thereafter. Some authors describe a process of “disengagement” from the fundamental principles upon which “modern criminal law” is based. They point to its corollary, the rise of the ideology of pragmatism, which, in the name of efficiency, is gradually transforming the whole philosophy underpinning the criminal justice system. Some of them thus refer to the “post-modernisation” of criminal law . Among the new trends affecting criminal justice systems, one of them has attracted considerable academic attention in the last few years. This is the so-called “Europeanisation process”, which is the result of the growing intervention of the EU in the area of criminal law. Criminal law and criminal procedure are deeply rooted in national sovereignty and had therefore been developed at national level only. However, since the entry into force of the Amsterdam Treaty, the EU has taken a lead in the approximation of criminal legislation and has developed new and closer cooperation mechanisms based on principles such as the mutual recognition of decisions in criminal matters . With the entry into force of the Lisbon Treaty, the EU’s scope for intervention in this field has been considerably broadened and its supranational nature strengthened, thereby challenging the narrow and profound link between criminal law and the nation state even more. Another new trend which criminal law and other legal disciplines are facing is the increasingly blurred dividing lines between legal categories. Several authors have highlighted the existence of a general blur . Various dimensions of this blur have been identified in legal literature . As will be highlighted by other authors in this book , the verb and the noun “blur” have rather negative connotations. As a verb, it is defined as the action of making or becoming vague or less distinct, of making less clear, of smearing or smudging. As a noun, “blur” means vague, hazy or indistinct . Law and lawyers are not at ease when faced with vagueness and lack of clarity. This is especially true for criminal law and criminal lawyers, as is demonstrated by the well-known principle of legality in its substantive dimension. As will be underlined by some authors in the following contributions, these blurred dividing lines can, however, also have a positive impact or at least give rise to a multitude of consequences that cannot all be categorised as negative. This is clear, for instance, when one thinks of the application of criminal procedural guarantees by administrative law or of the so-called Engel line of case law of the European Court of Human Rights (ECtHR). A growing blur can be observed between criminal and administrative law. Both fields of law have received numerous different definitions . The dividing line between them has never been clear . Their respective scope and/or the criteria dividing their respective jurisdiction can vary depending on the country concerned and on the “approach” followed. The criminal nature of proceedings and of penalties can indeed be considered in a formal or substantial manner. As it is well known in its above-mentioned Engel ruling, the ECtHR follows the second approach when considering whether national proceedings constitute a criminal charge in the sense of Article 6 ECHR . The blur between criminal and administrative law has different manifestations and has a wide variety of origins. The scope of both administrative and criminal law tends to expand. Criminal law is being introduced in fields in which the legislator traditionally adopted administrative measures and vice versa. Fields such as terrorism or trafficking in human beings, which have traditionally been governed by criminal law, are increasingly sprinkled with administrative measures or are becoming fields where administrative actors are increasingly involved. In some domains, a double enforcement/sanctioning system (administrative/criminal) has developed. However, by themselves, these trends do not necessarily result in a blur. A blur occurs when the scope of intervention and the division of functions between both kinds of measures, systems, actors or frameworks are not clear enough; when the two sets of applicable rules become indistinct and/or when there is cross-contamination whereby the interactions between both types of measures, actors or frameworks is not organised and overlaps are neither avoided nor regulated. So, in order to identify a blur, the following questions are of key importance: Are there clear criteria setting out when one or the other actor/framework, or both, should be involved? Are the rules applicable to one or the other framework/actor clearly defined and is there some kind of approximation between them? Is a system of double administrative and penal repression foreseen? Reflecting on the reasons for the growing blur between administrative and criminal law is quite interesting. As will be highlighted in the different contributions to this book, various factors arise, including the advantages of each of the different regimes , the need to find an effective way of dealing with certain kinds of crime that are becoming ever more complex, the need to develop a multidisciplinary/holistic approach towards some crimes, particularly trafficking in human beings, and the will and/or need to prevent crime, especially terrorism, etc. The purpose of this book is to study the combination of both of the abovementioned trends affecting criminal justice systems. The blur between administrative and criminal law has, of course, been around for a while and exists independently of the European Union. It is, for instance, embodied in the blurred line between measures belonging to punitive administrative law and criminal law measures . Up until now, this trend has mainly been analysed at the national level. However, it is interesting to reflect on the interaction between the Europeanisation of criminal law on the one hand and the increasingly blurred line between administrative and criminal law on the other hand. In this regard, the main question that arises is whether and to what extent the EU contributes to the blurred line; if it tries to limit it, control it and/or organise it.

Bruxelles, Editions de l’Université de Bruxelles, 2014. 259p.

Edited by Diane Kirkby

This collection brings methods and questions from humanities, law and social sciences disciplines to examine different instances of lawmaking. Contributors explore the problematic of past law in present historical analysis across indigenous Australia and New Zealand, from post-Franco Spain to current international law and maritime regulation, from settler colonial humanitarian debates to efforts to end cruelty to children and animals. They highlight problems both national and international in their implication. From different disciplines and theoretical positions, they illustrate the diverse and complex study of law’s history.

Canberra: Australian National University, 2011. 236p.

By K. Alexander Adams and Youngsung Kim

This paper uses panel data from 1980 to 2018 in all 50 U.S. states and the District of Columbia to examine the relationship between liberalized concealed carry laws, homicide, and firearm homicide. Multivariate regression analysis was conducted with state and time fixed effects. A general-to-specific procedure was also used to reduce the arbitrariness of choosing control variables in the crime equation. Various robustness checks were also employed, including the use of a generalized synthetic control model. The relationship between shall-issue and constitutional carry laws and homicide were statistically insignificant at the 1%, 5%, and even 10% level. The results were robust to multiple alternative model specifications. We find no evidence that looser concealed carry laws pose a significant public health or criminological risk.

Unpublished paper, 2023.