By Brandon L. Garrett, JD, Monitor, et al.

The ODonnell Consent Decree

• Misdemeanor Bail Reform: In Harris County, secured money bonds are no longer required for most misdemeanor cases under the court rule adopted as part of the ODonnell v. Harris County settlement. Most people arrested for misdemeanors are released promptly without a hearing.

• Bail Options Unchanged for Cases with Public Safety Concerns: People charged with misdemeanors that potentially present public safety risks (e.g., repeat DWIs, family violence, prior bond violations or outstanding warrants) are not automatically released. A hearing officer makes a bail decision, usually following a hearing at which magistrates have the traditional options to require financial bonds, protective orders, pretrial supervision requirements, or other release conditions.

• Better Bail Hearings: Defense attorneys continue to represent people at bail hearings, as required by Rule 9 and the Consent Decree. Before 2017, people arrested in Harris County usually had no defense attorney at these hearings. Judges also must give greater attention to more rigorous bail requirements.

Major Consent Decree Accomplishments:

• Court Appearance: The County is currently implementing an approved plan to make use of the budget allocation to improve court appearance. The County is now piloting a new website, https://myharriscountycase.com, where people can readily look up information about upcoming appearances in their cases.

• Data: Much of the relevant information about the misdemeanor bail process is now available in an automated report. We have continued work to provide feedback on Harris County’s public data portal. We now have improved data regarding persons flagged as homeless or with mental health assessment requests, as well as data concerning pretrial supervision conditions, and report these new analyses in this report.

• Training: The Deason Criminal Justice Reform Center at the SMU Dedman School of Law conducted trainings in 2023, which resume in early 2024.

• Indigent Defense: The County is continuing to develop plans in response to the National Association for Public Defense (NAPD) evaluation of Harris County’s misdemeanor indigent defense systems. We hope the County will implement a plan for the earlier appointment of counsel.

Ongoing Work by the Monitor Team:

• Data Development: We analyzed data prepared by Harris County and provided continual feedback on data development in regular meetings concerning the assembly and validation of data regarding misdemeanor cases.

• Community Work Group: We convened quarterly meetings of our Community Work Group, to share our work and solicit input from our diverse community stakeholders. Members share their perspectives for the “Community Viewpoints” column found in our reports.

• Regular Meetings: We held regular meetings with the parties and Harris County stakeholders, including weekly calls, monthly meetings with both judges and hearing officers, and periodic calls with public defenders and prosecutors. Our next public meetings will be held in-person on April 18, 2024.

• Feedback: We provided feedback to the parties on several improvements to the hearing process, the designed and implemented training, and the assessment work regarding holistic defense services and nonappearance. o Review of Violations: We are extremely grateful for the work that has begun to build an improved system to permit all County actors to review potential Rule 9 violations and prevent delays and errors in case processing.

Our Findings:

• Data Analysis: Our updated findings largely confirm what we reported in our first six reports. The bail reforms under the ODonnell Consent Decree have saved Harris County and residents many millions of dollars, improved the lives of tens of thousands of persons arrested for misdemeanors, and these large-scale changes have produced no increase in new offenses by persons arrested for misdemeanors.

  • Overall, the work suggests that repeat offending by persons arrested for misdemeanors has remained stable in recent years.

  • The numbers of persons arrested for misdemeanors have declined since 2015.

  • The numbers of those arrested for misdemeanors who had new charges filed within one year have also declined.

• The analyses conducted show:

• Misdemeanor Case and Defendant Characteristics

• The number of misdemeanor arrestees has declined by more than 15 percent between 2015 (N=49,359) and 2023 (N=41,177).

• The count has been slightly increasing since 2020, which marked the beginning of the Covid-19 pandemic period.

Durham, NC: Duke University, 2024. 107p.

By Allison P. Harris

How does racial diversity impact institutional outcomes and (in)equality? Discussions about diversity usually focus on how individuals’ identities shape their behavior, but diversity is a group-level characteristic. Scholars must, therefore, consider the relationship between group composition and the individual decisions that shape institutional outcomes. Using felony data from a large U.S. court system, I explore the relationship between racial diversity among the judges comprising a court and individual judges’ decisions. I find that as the percent of Black judges in a courthouse increases white judges are less likely to render incarceration sentences in cases with Black defendants. Increases in racial diversity decrease the Black–white gap in the probability of incarceration by up to 7 percentage points. However, I find no relationship between judge’s racial identities and disparities in their decisions. This study highlights the importance of conceptualizing diversity as a group characteristic and the relationship between institutional context and outcomes.

American Political Science Review, 2023, 16 pages

By The United States Sentencing Commission

This report examines variations in sentencing practices—and corresponding variations in sentencing outcomes—in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker. The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average. This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Washington, DC: United States Sentencing Commission, 2019. 138p.

By The United States Sentencing Commission

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.  The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system.  In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker.

Washington, DC: United States Sentencing Commission, 2020. 100p.

By Vera M. Kachnowski and Amanda Russell

 In 2016, the United States Sentencing Commission promulgated an amendment that comprehensively revised the guideline covering illegal reentry offenses—§2L1.2 (Unlawfully Entering or Remaining in the United States). The amendment, Amendment 802, became effective November 1, 2016, and represented the most comprehensive revision of a major guideline in the last two decades. This report examines the impact of Amendment 802 by looking back at sentencings under §2L1.2 over the last ten fiscal years. The report first describes the concerns leading to the amendment, including that §2L1.2’s 12- and 16-level increases were overly severe and led to variances, and that using the “categorical approach” to apply enhancements was overly complex, resource intensive, and increased litigation and uncertainty. After outlining the changes made by Amendment 802, the report assesses its impact on guideline application for §2L1.2 offenders and on appeals involving §2L1.2.

Washington, DC: United States Sentencing Commission, 2022. 38p.

By Kathleen C. Grilli, Kevin T. Maass and Charles S. Ray,

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Washington, DC: United States Sentencing Commission, 2022. 94p.

By April A. Christine,  Courtney R. Semisch,  Charles S. Ray, and Amanda Russell,

This comprehensive study of robbery offenders sentenced in fiscal year 2021 provides an analysis of the characteristics of robbery offenders, their criminal history, and their sentences imposed. The report also provides analyses on the prevalence of robbery offenses and how they were committed, including who was robbed, what was taken, the use or threatened use of physical force, the use of a firearm or other dangerous weapon, and whether any victim was injured or killed during a robbery. This report builds upon the Commission’s recent observations regarding the high recidivism rates among federal robbery offenders

Washington, DC: United States Sentencing Commission, 2022. 60p.

By Vera M. Kachnowski, Christine Kitchens, and Data Cassandra Syckes,

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects. Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014. The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types. Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses. The report identifies how many federal offenders sentenced in fiscal year 2021—for any crime type—received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences. The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Washington, DC: United States Sentencing Commission, 2023. 46p

 By Tracey Kyckelhahn and Amanda Kerbel,

The United States Sentencing Commission (“the Commission”) has previously published reports on the relationship between demographic factors and sentencing,1 but none have focused specifically on the educational attainment of federally sentenced individuals. The United States Census Bureau estimates that 12.8 percent of the U.S. population have acquired a graduate degree (i.e., master’s degree, professional degree, or doctoral degree).2 However, less than two percent (1.8%) of federally sentenced individuals in fiscal year 2021 were in this educational attainment group. Congress requires courts to consider several factors when determining the appropriate sentence to be imposed in federal cases, including the “history and characteristics of the defendant.”3 The federal sentencing guidelines provide that specific characteristics of sentenced individuals such as education may be considered at sentencing, yet there is little information published that examines differences across education levels.4 Accordingly, this report provides an analysis of the federally sentenced individuals in fiscal year 2021 by educational attainment. 

Washington, DC: United States Sentencing Commission 2023. 36p.

By Ian K. Belton and Mandeep K. Dhami

Personal mitigating factors (PMFs) such as good character, remorse and addressing addiction help sentencers evaluate an offender’s past, present and future behavior. We analyzed data from the 2011–2014 Crown Court Sentencing Surveys in England and Wales to examine the relationship between these PMFs and custodial sentences passed on assault and burglary offenses, controlling for other sentencing relevant factors. Beyond revealing the distribution and co-occurrence of the three PMFs, it was found that good character, remorse and addressing addiction all had a significant mitigating effect. The effects of addressing addiction were the strongest of the three across both offense types, while good character had a stronger effect on burglary than assault. In addition, some mitigating factors appear to be underweighted when they occur together. We consider the implications of these findings for sentencing policy and practice.

J Empir Leg Stud. 2024;1–32.

By Beth M. Huebner, Andrea Giuffre

Investigations in Ferguson, Missouri, revealed that many individuals, particularly Black people, entered the criminal justice system for relatively minor offenses, missed court appearances, or failure to pay fines. Municipal courts were focused on revenue generation, which led to aggressive enforcement of municipal codes. Although subsequent reforms were passed, little is known about whether and how the legislative changes influenced the law-in-action in the municipal courts. Using data from qualitative interviews with St. Louis area residents and regional court actors, as well as court observations, this article documents the legal structure of municipal courts in the region after Ferguson. We address how the parochial nature of municipal courts in St. Louis County perpetuates the financial marginalization of residents through the layering of punishment, and how the state legal structure further facilitates control, even after reform.

RSF: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (1) 108-127; DOI: https://doi.org/10.7758/RSF.2022.8.1.05

By Liz Komar, et al.

Through the lens of the successes and challenges of New York’s DVSJA, this guide explores the need for similar bills across the country (referred to as DVSJA legislation, DVSJA laws or DVSJA relief) and offers recommendations for advocates and legislators developing and implementing those laws in their own jurisdictions. Drawing from case law and the guidance of survivors, advocates, and litigators, the guide offers a model bill, which can be adapted to fit any locality. Woven throughout are the experiences of those who have applied for DVSJA relief in New York or those who would benefit from such a law should it be enacted in their state.

Specifically, the guide recommends that states enact sentencing laws for domestic violence survivors that:

1. Create broad and trauma-informed eligibility criteria

2. Develop a legal process accessible to survivors

3. Craft a trauma-informed and realistic legal standard

4. Maximize sentence reductions

The ultimate goal of these recommendations is to allow advocates to draw on lessons learned from New York’s DVSJA to strengthen efforts for survivor sentencing legislation already gaining ground across the United States.

Washington, DC: The Sentencing Project and Survivors Justice Project, 2023. 33p.

By Bugmy Bar Book Committee

Launched in 2019, the Bugmy Bar Book is a free, evidence-based resource hosted on the website of the NSW Public Defenders.

The project publishes accessible summaries of key research on the impacts of the experience of disadvantage and strengths-based rehabilitation. It provides objective research across several areas of disadvantage, to support both the application and decision-making processes, when subjective information is unable to be obtained.

The project is directed by a Committee comprised of representatives of key stakeholders in the criminal justice system (including the NSW Public Defenders, NSW Office of the Director of Public Prosecutions, Aboriginal Legal Service (NSW/ACT) Limited and Legal Aid NSW), the judiciary (including the Supreme Court of NSW, District Court of NSW, Local Court of NSW, ACT Magistrates Court and NSW Judicial Commission), legal academics (including senior academics from UNSW, ANU and UTS) and members of the private legal profession. Although the project originated and is based in NSW, the resources are designed for use across all Australian jurisdictions and the committee engages with stakeholders Australia-wide.

Who is the Bugmy Bar Book For?

It aims to promote greater understanding of the impacts within the legal profession and judiciary, with the key function being to assist in the preparation and presentation of evidence to establish the application of the sentencing principles in Bugmy v The Queen (2013) 249 CLR 571.

The application of the materials in the Bugmy Bar Book can also be used in other contexts, including bail and mental health diversionary applications, various civil practice areas, coronial inquests and other inquisitorial jurisdictions.

By Chad M. Topaz, Shaoyang Ning, Maria-Veronica Ciocanel & Shawn Bushway

Race-based inequity in federal criminal sentencing is widely acknowledged, and yet our understanding of it is far from complete. Inequity may arise from several sources, including direct bias of courtroom actors and structural bias that produces racially disparate impacts. Irrespective of these sources, inequity may also originate from different loci within the federal system. We bring together the questions of the sources and loci of inequity. The purpose of our study is to quantify race-based disparate impact and differential treatment at the national level and at the level of individual federal judicial districts. We analyze over one-half million sentencing records publicly available from the United States Sentencing Commission database, spanning the years 2006 to 2020. At the system-wide level, Black and Hispanic defendants receive average sentences that are approximately 19 months longer and 5 months longer, respectively. Demographic factors and sentencing guideline elements account for nearly 17 of the 19 months for Black defendants and all five of the months for Hispanic defendants, demonstrating the disparate impact of the system at the national level. At the individual district level, even after controlling for each district’s unique demographics and implementation of sentencing factors, 14 districts show significant differences for minoritized defendants as compared to white ones. These unexplained differences are evidence of possible differential treatment by judges, prosecutors, and defense attorneys.

Published in: Humanities and Social Sciences Communications, Volume 10, Article Number 366 (2023). doi: 10.1057/s41599-023-018By Bugmy 9-5.

By Mari McGilton; William Adams; Julie Samuels; Jessica Kelly; aND Mark A. Motivans

This report provides details on the sentences of persons in federal prison at fiscal yearends 2013–2018. Since 2012, federal policy changes related to both U.S. sentencing guidelines and the use of mandatory minimum penalties have affected persons held in Federal Bureau of Prisons (BOP) facilities for drug offenses. The report describes four policies that are particularly relevant to this population: Smart on Crime, Drugs Minus Two, the Clemency Initiative, and the First Step Act. Findings in this report are based on fiscal yearend 2013–2018 prison records from the BOP that were linked to fiscal years 1994–2018 sentencing records from the U.S. Sentencing Commission.

Highlights:

• At fiscal yearend 2018, about 47% (71,555) of persons in Federal Bureau of Prisons (BOP) custody were sentenced for drug offenses.

• The number of people in federal prison for drug offenses decreased 24% during the 5-year period from fiscal yearend 2013 to fiscal yearend 2018.

• The number of people in BOP custody decreased from fiscal yearend 2013 to fiscal yearend 2018 for marijuana (down 61%), crack cocaine (down 45%), powder cocaine (down 35%), and opioids (down 4%), while there were increases for heroin (up 13%) and methamphetamine (up 12%).

• The number of people in federal prison for drug offenses who were eligible for mandatory minimum penalties declined 33% during the 5-year period, as did the number who ultimately received penalties (down 26%) and received relief from penalties (down 52%).

  Washington, DC: U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics, 2023. 28p.

Edited by Michiel Van der Wolf

This edited collection provides an interdisciplinary and cross-national perspective on safeguarding the quality of forensic assessment in sentencing offenders. Taking an in-depth look at seven different Western countries, each chapter provides an overview of the role of assessment in sentencing offenders, as well as a focus on formal ways in which the respective country’s legal system and disciplinary associations protect the quality of forensic assessment. Each chapter explores how to assure better decision making in individual cases based on assessments of psycholegal concepts such as mental disorder/insanity, criminal responsibility and dangerousness. Combining the perspectives of lawyers, legal scholars, and clinicians working in the field, this book is essential for those working in and with forensic assessment.

New York; London: Routledge, 2022. 281p.

By The Working Group

The Minister for Justice Helen McEntee T.D has today published the final report and recommendations of the Working Group examining the Disregard of Convictions for Certain Qualifying Offences Related to Consensual Sexual Activity between Men. The report contains 95 recommendations regarding the introduction of a statutory scheme to enable the disregard of relevant criminal records.

“Nearly 30 years on from decriminalisation, Ireland has become a much more tolerant society. But there are many people who still feel the hurt and stigma created by the laws that criminalised consensual sexual activity between men.

By Allison P. Harris

How does racial diversity impact institutional outcomes and (in)equality? Discussions about diversity usually focus on how individuals’ identities shape their behavior, but diversity is a group-level characteristic. Scholars must, therefore, consider the relationship between group composition and the individual decisions that shape institutional outcomes. Using felony data from a large U.S. court system, I explore the relationship between racial diversity among the judges comprising a court and individual judges’ decisions. I find that as the percent of Black judges in a courthouse increases white judges are less likely to render incarceration sentences in cases with Black defendants. Increases in racial diversity decrease the Black–white gap in the probability of incarceration by up to 7 percentage points. However, I find no relationship between judge’s racial identities and disparities in their decisions. This study highlights the importance of conceptualizing diversity as a group characteristic and the relationship between institutional context and outcomes.

  American Political Science Review (2023) 1–16  

By Phil Bowen

  As the Government’s recent White Paper states, “failures in sentencing lead to never-ending cycles of criminality, with low-level offenders stuck in a revolving door of crime…in many cases their offending is fuelled or exacerbated by poor mental health or substance misuse. Yet our system of sentencing is not properly equipped to support them to address these and other causes of their offending. This means they have little hope of rehabilitation and we as a society have little hope of cutting the crime they commit in the longer term.” Taking inspiration from a number of different jurisdictions, we outline ways that deferred sentences can be used in England and Wales as part of structured and targeted approaches to address these issues. In suggesting these innovative approaches, we see deferred sentence schemes of these types as part of a vital spectrum of responses to the otherwise endless cycle of offending that some people are caught in. Starting with diversion at the arrest stage for lowlevel and first time offenders, through to problem-solving substance misuse courts providing an alternative to longer periods of custody, we see innovation in deferred sentencing as playing a crucial role in ensuring we have a justice system that is “agile enough to give offenders a fair start on their road to rehabilitation.”

London: Centre for Justice Innovation , 2020. 7p.

By Julian V. Roberts,  Elaine Freer and Jonathan Bild (Sentencing Academy)

This report provides an introduction to the concept of deferred sentencing. Courts in England and Wales have long had the power to defer sentencing for up to six months. The Government’s 2020 White Paper, A Smarter Approach to Sentencing, expressed an intention to encourage greater use of deferred sentencing. To date, very little research has explored this little-known element of sentencing law. The only peer-review publications exploring the subject appeared approximately 40 years ago. This report summarises the limited research on this topic and reports recent trends in the use of deferred sentencing in England and Wales. The power to defer sentence was conceived to respond to those individuals whose personal and professional circumstances are most likely to be in transition and evolving in ways that have consequences for the sentencing decision. For this reason, deferred sentencing may be particularly appropriate for young adults whose personal and professional lives are changing rapidly. The idea behind the deferred sentence is that the offender has a limited time (up to six months) to address the problems which gave rise to the offending for which he or she is being sentenced. When a court defers sentencing, the offender is required to comply with a number of requirements during the period of deferral. If the offender complies successfully with these requirements, there is a strong presumption that a non-custodial sanction will ultimately be imposed. This may mean imposing a suspended sentence order or community order in a case which would normally have resulted in a short immediate prison sentence. The deferred sentence therefore should serve as a powerful incentive for the offender to take steps towards desistance and away from offending. The deferral order commonly involves completing or undertaking a drug or alcohol treatment programme. The deferred sentencing provision was introduced in 1973 to provide an opportunity for the offender to demonstrate a change in personal circumstances during the period of deferral. Compliance with requirements designed to promote desistance normally resulted in the imposition of an alternative to immediate imprisonment. Deferred sentencing thus targeted offenders convicted of an offence serious enough to justify the imposition of a custodial sentence. The limited statistics available from the early period showed that almost all cases deferred ultimately attracted a non-custodial sentence. The volume of deferred sentences has declined considerably from a high of almost 10,000 cases a year in the mid-1970s although it is unclear why courts have moved away from exercising the power to defer sentence. Most deferrals (approximately half of all cases) over the more recent period covered by the statistics we have been provided with by the Ministry of Justice in response to requests under the Freedom of Information Act (2005-2020) involved theft or minor fraud. Crimes involving violence or sexual offences accounted for 3% or less of all cases. No data are currently available on the requirements imposed as part of a deferred sentence, the outcome of the deferment, or the sentence ultimately imposed.  

London: Barrow Cadbury Trust, 2022. 39p.