By Lee Kovarsky  

The tailwinds might be behind criminal justice reform, but American mercy power remains locked in a sputtering clemency model. Centralized leadership should be braver or the centralized institutions should be streamlined, the arguments go—but what if the more basic mercy problem is centralization itself? In this essay, I explore that question. In so doing, I defend the normative premise that post-conviction mercy is justified, and I address the questions of institutional design and political economy that follow. I ultimately encourage jurisdictions to layer decentralized mercy powers on top of their clemency mechanisms, and for the newer authority to be vested in local prosecutors. I present less a single proposal than a collection of principles for mercy decentralization. Governors and presidents simply cannot deliver the punishment remissions appropriate for an American prison population bloated by a half-century love affair with over-criminalization, mandatory minimums, and recidivism enhancements.  

24 New Criminal L. Rev. 326 (2021)  

By The Texas Sunset Advisory Commission

 As the criminal justice system works through the final lingering effects of the COVID-19 pandemic on court backlogs, the Texas Department of Criminal Justice (TDCJ) along with the other adult criminal justice entities subject to this Sunset review — the Board of Pardons and Paroles (BPP), Windham School District, and Correctional Managed Health Care Committee — are once again at a critical point. This Sunset review occurred in the context of TDCJ’s systemwide prison lockdown due to unprecedented levels of contraband and violence and inmate population projections that exceed TDCJ’s operational capacity, raising basic questions about TDCJ’s ability to handle its current and future realities. The state’s criminal justice entities are confronting serious challenges in executing their mission to safely confine, supervise, and provide services for adults convicted of certain crimes in Texas. This Sunset review therefore seeks to best position TDCJ and its counterparts so that they are able to prevent current problems from becoming unmanageable, widespread crises in the coming years. While the sheer size and complexity of Texas’ sprawling prison system is unique, TDCJ faces the same national trend as its peers in other states — hiring people to work in corrections is difficult. The Legislature and TDCJ have long recognized correctional officers, who play a vital frontline role overseeing Sunset seeks to position TDCJ to be able to prevent problems from becoming widespread crises. incarcerated adults, as deserving of additional attention and resources for recruitment and retention. Yet the uncomfortable reality the Sunset review found is some of Texas’ prisons are located in places where hiring sufficient correctional staff is nearly impossible. As that reality is unlikely to change, TDCJ is forced to spend significantly on transporting staff around the state and maintaining facilities that hold thousands of vacant, unusable beds. Furthermore, while difficulty hiring correctional staff isn’t unique to this state, the agency has not done enough to mitigate this problem. Serious and systemic deficiencies in human resources functions, which form the backbone of effective agency operations, contribute to agencywide hiring and retention problems, with more than half of TDCJ divisions at a vacancy rate of at least 20 percent in fiscal year 2023. This staffing crisis extends to parole officers who supervise releasees in Texas communities and several other critical divisions. Ultimately, the Sunset review found TDCJ must concurrently plan for the future to locate or expand facilities in places where the agency can adequately staff them while also greatly improving internal human resources functions and processes to retain existing staff. T he Sunset review also found TDCJ to be in significant need of modernization, as decades-old technology and paper-based and manual processes limit the agency’s ability to effectively and efficiently leverage its $3.9 billion annual budget. But the lack of modernization is not limited to technology. Without better strategic planning and data practices, the agency will continue to reactively lurch from emergency to emergency. Additionally, TDCJ’s approach  to rehabilitation programs, many of which inform BPP’s determination of the potential for an inmate to safely reenter the community, suffer from deficiencies that undermine the Legislature’s significant investment in these programs. To overcome these deficiencies, this review recommends requiring enhanced rehabilitation planning and evaluation to better ensure beneficial program outcomes rather than simply encouraging participation regardless of efficacy. T his Sunset review also took a close look at the parole system — both the processes by which BPP decides whether to grant early release to eligible inmates and the processes by which TDCJ’s parole officers supervise releasees. Given the high stakes of inmates reentering the community and the discretionary nature of making such decisions, BPP voters understandably take a cautious approach. As it has in previous reviews of BPP, Sunset focused on improved fairness, consistency, and transparency of BPP’s decision-making processes. Separately, the review also found the need for more efficient TDCJ parole processes to ease burdens on the often underappreciated parole staff who serve a critical public safety role in Texas communities. T his review did not have findings or recommendations in two key areas: probation and correctional health care. TDCJ’s role in probation is limited to maintaining standards for and providing funding to local Community Supervision and Corrections Departments (CSCDs). Overall, Sunset staff found TDCJ adequately performs this function, and many ideas for changes to probation largely amounted to calls for increased funding. To this end, TDCJ has requested through its 2026-27 Legislative Appropriations Request additional funding to support both CSCD staff salaries and supervision activities. Additionally, this review found the Correctional Managed Health Care Committee’s role, which primarily is to develop a statewide managed healthcare plan, to be functioning adequately. TDCJ works effectively with its contracted partners at the Texas Tech University Health Sciences Center and the University of Texas Medical Branch to deliver healthcare services as the Legislature intended. Despite finding considerable areas for improvement across the criminal justice entities under review, Sunset staff determined that Texas continues to benefit from TDCJ’s oversight and management of a system in which a single state agency supports probation and directly provides incarceration and parole supervision. Accordingly, Sunset staff recommends continuing TDCJ for 12 years and aligning its Sunset review to coincide with that of the other criminal justice entities. The following material highlights Sunset staff’s key recommendations for the Texas Department of Criminal Justice, Board of Pardons and Paroles, Windham School District, and Correctional Managed Health Care Committee. 

Austin, TX: The Commission, 2024. 189p.

By Besiki Luka Kutateladze, R. R. Dunlea, Don Stemen, & Melba Pearson

The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices. The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices. The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices.

Prosecutorial Performance Indicators, 2023. 7p.

By Oli Hutt, Head of Analytics | Greg O’Meara, Analyst

Rising demand and squeezed budgets over the past decade have left the criminal justice system (CJS) struggling to manage day-to-day. Changes to address a specific issue in one agency cascade unintentional negative consequences, creating friction elsewhere which slows cases and reduces the likelihood of successful outcomes. Better modeling of the systemic impact of individual agency choices is required to prevent the system from lurching with every change. The lack of a joined-up accountability structure severely hinders the efficacy of the CJS as a whole. Whilst individual agencies have a common aim, their objectives and resources are often unaligned or even in direct conflict. This impacts on victims, witnesses, and defendants who experience a highly fragmented, frustrating, and stressful process. Cooperation is held back by a lack of basic data sharing. Better standardization and coordination is needed on basics such as data format, transfer, frequency, etc.) and co-design of systems to enable more joined-up working. A duty to share data should be considered as a way to drive greater cooperation across the CJS. Practitioners from across the CJS are clear on what needs to change to make this happen. However, the willingness of agencies to work together is limited- in part because they lack the resources required. There are success stories, but these are typically localized and not embedded. Yet there is cause for hope. Better use of technology can enable better decision-making and improve efficiency and effectiveness; our recommendations are focused on these objectives. Relatively minor investment would deliver targeted solutions e.g.- digital devices in prisons and courts, redaction tools for police and data sharing agreements. By reducing data entry and data error, these would free up police and prison officer time and remove delays in data sharing across the CJS. However, these require the central government to invest to realize the systemic benefit they could deliver. Technology also offers relief to recruitment and morale issues by automating standard processes that are inconsistently applied and time-consuming to learn, and by removing the burden on staff often required to work outside their skill set. Agencies should recruit and retain specialist (particularly technical) staff rather than relying on current staff to cover these needs inefficiently. Longer-term, more fundamental, systemic change is required, including a single accountability structure for the entire CJS; a victim/witness-centric design that maximizes engagement throughout the process and leads to swift and fair outcomes for all through system-wide case management and data sharing. These longer-term requirements should not stop the government from progressing the changes outlined above, and other recommendations that can be implemented immediately at a relatively low cost. The greatest risk facing the criminal justice system is inaction

London: Crest Advisory, 2022. 42p.

By Amanda Kraus, Elizabeth Clelan, Heather Wolters, Patty Kannapel

This study was sponsored by the Office of the Executive Director for Force Resiliency within the Office of the Under Secretary of Defense for Personnel and Readiness to address two taskings from the FY 2020 National Defense Authorization Act (NDAA):

1. Establish criteria for determining when to review data indicating that racial, ethnic, and gender (REG) disparities in military justice outcomes may exist and provide guidance for how to conduct that review.

2. Conduct an evaluation to identify the causes of identified REG disparities and take steps to address them.

To address the first tasking, the study team combined emerging best practices from the civilian criminal justice system (CCJS) with a review of the military justice system (MJS) to create guidance for data collection, analysis, and reporting that will allow the services to use administrative data to conduct ongoing assessments of how members of all REG groups are treated within the MJS. To address the second tasking, the team used multivariate statistical techniques to analyze available data with the goal of measuring REG disparities in MJS outcomes, holding constant other relevant factors. This report addresses the first tasking; the second tasking is addressed in a companion report titled, Exploring Racial, Ethnic, and Gender Disparities in the Military Justice System.

GUIDING CONCEPTS

To guide our approach to addressing the NDAA tasking, we drew on four concepts related to justice and bias and considered their implications for data collection and analysis.

DISTRIBUTIVE VERSUS PROCEDURAL JUSTICE

Distributive justice relates to the distribution of outcomes within a community. In the MJS context, distributive justice relates directly to REG outcome disparities and suggests that the services should collect data to determine whether people who are the same except for their REG characteristics experience the same MJS outcomes. Procedural justice relates to the system that generates the outcomes. Procedural justice is defined in terms of the rules of the system and the extent to which they are applied consistently and impartially and communicated clearly. To assess procedural justice in the MJS, it is necessary to collect and analyze data on underlying processes, not just final outcomes. It is possible for procedural injustices to occur without generating outcome disparities, and it is possible for a system to be procedurally fair but to generate different outcomes for members of different REG groups. Thus, on their own, average outcome disparities are not complete indicators of bias. 

INDIVIDUAL VERSUS INSTITUTIONAL BIAS

Generally, bias is defined as prejudice for or against one person or group of people, especially in a way considered to be unfair. To cause MJS outcome disparities, such prejudices must be turned into biased actions, which can occur at the individual or institutional level. In the context of the MJS, individual bias is exercised by individual actors within the system through their individual decision-making discretion. It can be both explicit and implicit. Because individual bias is exercised through discretionary decision-making, finding evidence of it in data calls for identifying places in the system where individual discretion matters most to see if this is where disparities occur. Institutional bias is present when the policies, procedures, and practices that define a system consistently create positive or negative outcomes based an individual’s REG status. It can be intentional or unintentional. To identify the presence of institutional bias in the MJS, it is necessary to collect and analyze data that reflect outcomes that are guided by regulation or policy.

CONCERNS ABOUT BIAS IN THE MJS

Bias in the MJS—both real and perceived—can decrease the effectiveness of the MJS and thereby degrade good order and discipline and reduce warfighting readiness. There are widespread and persistent perceptions that the MJS is biased, and these perceptions exist both inside the military, especially among members of color, and outside the military, among the American public and members of Congress.

The broader social context in which concerns about bias are formed matters. Although the services have their own justice system and control over how that system is implemented, their members are drawn from the American population and public support is necessary for continued recruiting and funding. Thus, concerns about REG bias in the MJS will ebb and flow as they ebb and flow in the national culture and they may arise from within or without.

The quality and presentation of data and data analysis also matter. Over the years, analyses of MJS data have done little to alleviate concerns about bias. Given the persistence of these concerns, it makes sense to create a robust system for data collection, rigorous analysis, and appropriate reporting to enable detailed assessments of MJS outcomes and the policies and practices that produce them.

THE MJS

To identify points in the MJS where institutions and individuals apply discretion, as well as important MJS outcomes to study, we created a chart that maps how a case flows through four phases of the MJS—incident processing, pre-trial/pre-hearing, adjudication and sentencing, and post-trial/post-hearing—and identified key steps in each phase.

A main source of institutional discretion in the MJS lies outside the system. Given that servicemembers can enter the system if they are accused of disobeying a regulation, institutional choices about the nature and design of regulations will affect MJS outcomes. Individual discretion is more likely to be applied within the MJS, at different points by different actors. The most individual discretion rests with commanding officers during the incident processing phase and, in later phases, along the disciplinary path and the summary court-martial branch of the judicial path. Once a case is referred to special or general court-martial, discretion is spread across more people. Actors with significant discretionary power on the judicial path include convening authorities, who are military commanders with little or no legal training, and judge advocates, who are legal professionals serving as military judges and trial and defense counsels.

As a whole, the flowchart highlights the importance of considering the full range of outcomes because movement through the system is determined by the outcome at each successive step along the relevant path. The steps within each phase identify the important outcomes.

ADDRESSING MJS BIAS WITH ADMINISTRATIVE DATA

The primary benefit of using administrative data to measure REG disparities in MJS outcomes is that it creates an evidence-based picture of MJS outcomes that distinguishes between isolated incidents and widespread problems. To generate meaningful measures of these disparities, it is necessary to use multivariate analytical techniques that allow researchers to measure REG outcome disparities while accounting for other factors that affect MJS outcomes. The more relevant other factors that can be included in the model, the more likely it is to hold “all else” equal. If REG disparities still exist after accounting for other factors, it is likely that the outcome differences are directly related to REG. Such a finding does not prove that bias exists, but it takes the other factors off the table. The multivariate techniques we identified range in technical sophistication and resource requirements. Disaggregating raw data by multiple outcomes and factors is the easiest of the four approaches we identified, and it can be done by agency staff. While not as conclusive as approaches that control for multiple factors simultaneously, disaggregation provides a more complete picture than bivariate analysis and helps agency staff make informed decisions about where to focus more technical analyses and scarce analytical resources. Used together and on a regular basis, disaggregation and the more complicated approaches provide the basis for ongoing monitoring of REG outcomes to identify and address disparities before they become persistent or systemic. Existing MJS and other reporting requirements provide a natural schedule for conducting assessments and reporting their results.

Application of valid multivariate techniques requires detailed data. Current Department of Defense guidance directs the services to collect nearly all the desired data elements, so if the guidance is implemented, they should be well positioned to conduct meaningful assessments of MJS outcomes. There are two caveats to this conclusion. First, there may be gaps for information on investigations and disciplinary outcomes. Second, the services may not have the resources to implement the data collection guidance. It may be an unfunded mandate.

Finally, the tasking from the FY 2020 NDAA asked for criteria to determine when to further review data indicating that REG disparities in MJS outcomes may exist. There is no scientific or social consensus about which criterion to use or what level of disparity equates to bias. Therefore, the services should work with internal and external stakeholders to select multiple criteria based on the absolute size of a disparity, its statistical significance, and the number of people it affects.

RECOMMENDATIONS TO ADDRESS THE NDAA TASKING

We recommend that the services do not conduct detailed assessments of MJS data only in response to disparities measured by bivariate metrics. Instead, assessments should be conducted regularly using the blueprint provided by lessons learned from the CCJS:

Step 1. Work with internal and external stakeholders to identify issues of concern, set priorities, and develop decision-making criteria

Step 2. Create an analysis plan based on the concerns and priorities identified in Step 1

Step 3. Collect data on MJS outcomes (including nonjudicial outcomes) and relevant control variables in easy-to-use electronic records management systems and ensure they are regularly updated

Step 4. Execute the analysis plan from Step 2 using appropriate quantitative and/or qualitative methods

Step 5. Regularly and transparently report assessment results to all the stakeholders as appropriate

Step 6. Make policy decisions about how to address REG outcome disparities based on the established priorities and criteria

Arlington VA: CNA, 2023. 116p

By  Aayushma Bastola, Research & Data Fellow; Morgan Grizzle,, et al.

While in 2023 many other urban jurisdictions around the country began to see drops in homicides and other serious violent crime that had spiked postpandemic, the District of Columbia saw rates of violent crimes, like homicide and carjackings, continue to climb.1 That summer, D.C. lawmakers passed emergency legislation with provisions related to law enforcement and the prosecution and sentencing of crimes. In March 2024 the District passed permanent legislation, the Secure DC Omnibus Amendment Act of 2024 (“SECURE DC”), which included changes to D.C. law that had been part of prior expired emergency legislation as well as several new provisions.2 Given the importance of the public’s community safety concerns and the significance of SECURE DC policy changes, this year’s D.C. Criminal Legal System Overview is different from prior editions. This report highlights several aspects of SECURE DC and provides data analyses that can be used as a baseline with which to benchmark changes in crime and incarceration that may be related to the law’s provisions. This Overview also offers data to provide an overview of the District’s criminal legal landscape and to identify who is most impacted by D.C.’s legal systems. For example, this report highlights the growing costs of incarceration and policing in D.C. — reaching over $1 billion for the first time — and the disproportionate number of Black people who are justice-involved, including as victims of crime, in the District. Finally, this report will show that there have been some encouraging changes in terms of public safety from preliminary data for the first half of 2024, including both before and after the passage of SECURE DC. This is the fourth report in which the Council for Court Excellence (CCE) has offered a snapshot of the District’s criminal legal systems. As with past reports, CCE hopes readers find this information useful as we all work to create a safer, healthier, thriving D.C.  

Washington, DC: Council for Court Excellence , 2024. 40,p.

By Jim Whitehead , Richard Franklin, Tracey Mahony   

Not finding a murder victim poses challenges for homicide investigators in solving crime, including determining where to search for the deceased’s body. Existing literature focuses on locating offenders through criminal profiling; however, this is largely based on identification through forensic evidence found at the murder site or where the victim was located. This paper considered the challenge of locating a deceased victim from the perspective of search coordinators assisting homicide investigations. Could reference to previous homicide cases provide patterns and trends that may assist in locating disposed victims quicker, thus aiding in preserving vital physical evidence and providing expedient closure for the community? Methods: Through generation of a dataset utilising all Queensland Police recorded homicides from 2004 to 2020 inclusive, statistical analysis was conducted using SPSS™ software to identify common trends and characteristics of victim disposal. These identified commonalities were used to develop the Disposed Homicide Victim Matrix (DHVM), and Search Coordinator Principles, as tools to assist search coordinators in future relevant cases. Results: The study identified four (4) key commonalities observed in the dataset, (1) East is the predominant direction for victim disposal; (2) The offender’s vehicle was the most common method of victim transport followed by carrying/dragging; (3) concealment with leaf litter and local debris was the norm, followed by no attempt at concealment; and (4) victims were moved less than 50 m from a road or track after transport. Conclusion: The DHVM can assist police search for these victims by narrowing down potential search locations. Finding a victim has implications throughout the community, providing evidence that could secure a conviction, allowing a measure of grief closure to the co-victims, and inspiring confidence in police.     

Forensic Science International: Synergy 8 (2024) 10045  

Authors Brandon L. Garrett, Duke Law School Follow, Adam M. Gershowitz, William & Mary Law School Follow, Jennifer Teitcher, Duke Law School

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations are intentional or accidental, and a host of related questions.

This Article fills a gap in the data and literature by analyzing five years of Brady claims—over 800 cases—raised in state and federal courts. We coded each case for more than forty variables to answer big-picture questions like how often Brady claims are successful and which courts are most likely to grant relief. We also studied more intricate questions such as the types of crimes and evidence at issue, whether judges deemed violations intentional or accidental, and whether judges chastised or disciplined prosecutors for failing to disclose evidence.

Our study revealed some important and surprising findings. Despite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10% of the cases in our study. Prosecutors, not police, were responsible for most violations and they were almost never referred to the Bar for discipline. While federal prosecutors are supposed to be elite highly trained lawyers, they were responsible for a disproportionate share of Brady violations. And while the federal courts are lauded as the protector of civil liberties, it was state courts that granted relief more frequently, often on direct review rather than in habeas corpus proceedings as scholars would have expected.

These findings and many others—such as petitioners having to wait on average ten years for relief for Brady violations—demonstrate that we continue to have egregious prosecutorial misconduct problems in the United States and that further study is needed. To that end, this project not only reports significant data, but also is the first step in the creation of a searchable database that we are creating to empower other researchers to further analyze how Brady claims are being litigated and adjudicated.

114 J. Crim. L. & Criminology 185 (2024).

By Suzanne M. Strong and Mark Motivans,

This report provides statistics on the number of RICO investigations concluded and persons investigated by U.S. attorneys from fiscal year (FY) 2012 to FY 2022. It also presents statistics from FY 2018 to FY 2022 on investigations concluded by U.S. attorneys with multiple persons investigated; persons prosecuted, adjudicated, and sentenced with a RICO violation as the most serious offense; persons convicted with a RICO violation as the most serious offense or as a secondary offense; and conviction rates by state or territory.

Washington, DC: Bureau of Justice Statistics (BJS), 2024. 11p.

By Christopher Slobogin

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

Unpublished paper: (August 15, 2024). 

By Scottish Government, Safer Communities Directorate

Summary

• Research shows further evidence on the negative impact of rape myths and misconceptions on the complainer, but also raises concerns about perceived fairness by legal professionals when using single judge trials.

• Overall, there is a lack of empirical research comparing modes of trial for rape cases, which makes it difficult to draw any robust conclusions in relation to their impact on the complainer, rights of the accused, public confidence in the justice system and conviction rates.

• That said, there are some tentative indications that the complainer experience may be improved by a single judge trial model, but it might be more dependent on wider court procedures and approaches to (cross) examination than the mode of trial itself.

• Providing a written reason of verdict is seen as a clear advantage of single judge trials, both for the complainer and accused.

• Studies suggest that considering the rights of the accused should include agreeing on the justifications/criteria for single judge trials, establishing clear procedures to ensure consistency and transparency and addressing (implicit) bias and diversity in the judiciary.

• Significantly, where single judge trials for serious offences have been adopted, e.g. in countries such as New Zealand, Australia, Canada and the United States, it is by choice of the accused. There were no instances found of jurisdictions introducing alternatives to jury trials specifically for rape cases.

• There is no clear data on the effect of changing mode of trial on public confidence in justice system, although studies have shown a clear support of the public for the jury system. These studies however, did not ask directly about changing mode of trial in specific cases, such as for rape offences.

• The evidence is mixed on conviction rates, from lower, to no difference, to higher rates of conviction for cases tried by single judge, although, again, the evidence is limited and not specific to rape cases.

• Literature discussing mixed panels of professional and lay judges point to the possibility to mitigate concerns about the lack of community engagement and potential bias with one decision-maker, while preserving some of the advantages of a single judge trial such as clearer judicial direction and a reasoned written verdict.

• Overall, the literature suggest that to understand the impact of a change in mode of trial, it is important to take into account how a new mode of trial interacts with already established procedures in the criminal justice system. To improve the complainer experience additional reflection would be required on pre-trial and cross-examination procedures and training given to legal professionals.

• Taking into account that the evidence presented is limited and not always specific to sexual offences, it is difficult to make a clear translation to the context of a Scottish pilot for rape offences. A pilot can offer valuable and much needed empirical data and insight on the effects of a change in mode of trial.

Edinburgh: Scottish Government Safer Communities Directorate, 2023. 40p.

By Dubber, Markus Dirk

In The Sense of Justice, distinguished legal author Markus Dirk Dubber undertakes a critical analysis of the “sense of justice”: an overused, yet curiously understudied, concept in modern legal and political discourse. Courts cite it, scholars measure it, presidential candidates prize it, eulogists praise it, criminals lack it, and commentators bemoan its loss in times of war. But what is it? Often, the sense of justice is dismissed as little more than an emotional impulse that is out of place in a criminal justice system based on abstract legal and political norms equally applied to all. Dubber argues against simple categorization of the sense of justice. Drawing on recent work in moral philosophy, political theory, and linguistics, Dubber defines the sense of justice in terms of empathy—the emotional capacity that makes law possible by giving us vicarious access to the experiences of others. From there, he explores the way it is invoked, considered, and used in the American criminal justice system. He argues that this sense is more than an irrational emotional impulse but a valuable legal tool that should be properly used and understood.

New York: NYU Press, 2006.