Edited by Patricia G. Steinhoff

"Going to Court to Change Japan takes us inside movements dealing with causes as disparate as death by overwork, the rights of the deaf, access to prisoners on death row, consumer product safety, workers whose companies go bankrupt, and persons convicted of crimes they did not commit. Each of the six fascinating case studies stands on its own as a detailed account of how a social movement has persisted against heavy odds to pursue a cause through the use of the courts. The studies pay particular attention to the relationship between the social movement and the lawyers who handle their cases, usually pro bono or for minimal fees. Through these case studies we learn much about how the law operates in Japan as well as how social movements mobilize and innovate to pursue their goals using legal channels. The book also provides a general introduction to the Japanese legal system and a look at how recent legal reforms are working.

Ann Arbor: University of Michigan Press, 2014. 196p.

by Stephen Whitehead and Carolyn Lipp

Family Drug and Alcohol Courts provide a therapeutic, problem-solving court approach to care proceedings for parents with drug or alcohol problems which often co-occur with trauma, domestic abuse and mental health illnesses.

Marking 15 years since their establishment, this paper provides an overview of the existing research regarding Family Drug and Alcohol Courts, with findings providing a strong case for additional investment to expand these courts across England and Wales.

Many of the families involved in care proceedings have multiple and complex needs. For example, drug and alcohol use is a major factor in nearly two-thirds of the cases in which a local authority is initiating care proceedings due to suspected child abuse or neglect.1 Moreover, some parents are repeatedly brought back in front of the courts with their subsequent children removed and put into state care (called recurrent care proceedings), with recent research suggesting that approximately 1 in 3 care applications are made regarding a mother who has already had previous children removed from their care.2 Family Drug and Alcohol Courts (FDACs) try and break these patterns, providing parents with access to intensive treatment and support, while the court regularly reviews their progress. The primary aim of FDAC is to improve outcomes for children and families, ensuring that children can either live safely with parents at the end of care proceedings (reunification) or, where reunification is not possible, have the best chance for permanency and stability outside the family home. Since the first FDAC pilot site opened in 2008, the model has been of significant interest to researchers. The initial pilot was the subject of a robust quasi-experimental outcomes evaluation3 which was later revisited to review long-term outcomes for FDAC families.4 Beyond this, there have been two mixed-methodology studies of local sites5 and a number of qualitative studies seeking to understand the functioning of the FDAC model.6 Most recently, Foundations, the Government what works centre for children’s social care, published a major national evaluation of FDAC, conducted by Natcen, which compared all cases from 14 FDAC sites with a matched comparison group, in the most comprehensive study of the model to date. Outside of the UK, the US Family Drug Treatment Court model, of which FDAC is an offshoot,-has been the subject of extensive outcomes research which was brought together in a meta-analysis in 2019.7

London: Centre for Court Innovation, 2023. 8p.

John Rappaport

In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes, extracting payment from shoplifting suspects in exchange for a promise not to call the police. This Article examines what retailers’ decisions reveal about our public system of criminal justice and the concerns of the agents who run it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how industry has penetrated new parts of the criminal process, administering sanctions to resolve thousands of shoplifting allegations each year.

Proponents of private justice claim that everyone wins. Critics say it’s blackmail. The Article takes a tentative middle ground: While “retail justice” is not the American ideal, it may nonetheless be preferable to public criminal justice, at least if certain conditions are met. Rather than cancel the private justice experiment, therefore, as several states are poised to do, the government should aim to foster optimal conditions for its success.

Extending the central analysis, the Article then shows how the study of private justice leads to fresh perspectives on important criminal justice issues. It suggests, for example, that the costs to crime victims of assisting the prosecution may be a feature of the system, not a bug, if they encourage victims to invest in efficient crime-deterring precautions. It also complicates legal academic models of police and prosecutorial behavior built on maximizing arrests and convictions. The Article concludes by identifying conditions that conduce to private criminal justice and speculating about the next frontiers.

Public Law and Legal Theory Working Papers, no. 641 (2018).

By Malcolm M. Feeley

n his important article, Criminal Justice, Inc., Professor John Rappaport identifies the establishment of a new and novel institution: a private company retained by retail stores to dispose of cases involving shoplifting claims. Still in its infancy, this new development has spawned two private for-profit, specialist companies since 2010: the Corrective Education Company (CEC) and Turning Point Justice CEC alone handles thousands of shoplifting cases annually,

and if some legal technicalities are overcome, these companies may be handling signifi­cantly more in the coming years.

Both companies have the same business model, which Rappaport calls “Criminal Justice, Inc.” (CJ Inc.): Store security guards apprehend shoplifters, but instead of handling matters themselves or calling the police, the guards determine program eligibility according to strictly defined criteria and inform those eligible that they will be contacted by representatives of the CJ Inc. companies.In the subsequent call, CJ Inc. promises that the store will not call the police in exchange for a “tuition” payment to enroll in an online class on how to avoid crime.

Retailers, which include large national chains with aggregate annual sales in the billions of dollars, pay nothing for this service.

This new development, Rappaport tells us, may transform the way shoplifting is handled. In this Response, I place CJ Inc. in a broader context, point to other similar developments earlier and elsewhere, and imagine the future of criminal adjudication in a world of “CJ Incs.” After highlighting Rappaport’s central findings, I examine the model from two perspectives. First, I consider CJ Inc. from a historical and comparative perspective to show it is not so new: This sort of self-help is a time-honored practice found across all stratified societies. Second, I explore this phenomenon in light of practices common in many segmented socie­ties. Here, too, there is a substantial body of research on legal plu­ralism, which shows that alternatives to govern­mental systems of social control are common, even in criminal law matters, and even in modern societies. The introduction of CJ Inc. into contemporary American stores is one more instance of creative adap­tation within segmented institu­tions. The examination of social control in stratified and segmented societies reveals a great deal about the nature and the limits of the crimi­nal law, the limits of the state’s ostensible monopoly on the enforcement of criminal law, and the possible future of CJ Inc. and other related developments.

In this Response, I show that Rappaport has identified some­thing of a paradigm case in the amalgamation of stratified and seg­mented struc­tures that facilitate opportunities for expanded forms of private criminal justice administration. If I am correct, the implications for the expansion of CJ Inc. are enormous. Part I examines the social dimension of shoplift­ing and provides a thumbnail sketch of retail jus­tice. Part II examines self-help in stratified and segmented societies and explores the implica­tions of treating department stores as both stratified and seg­mented institutions. Part III identifies other stratified or segmented set­tings and explores the nature of existing CJ Inc.-like institutions and others that may emerge. The list is long, suggesting that CJ Inc. has a bright future. The conclusion addresses some implications stemming from the likely development of CJ Inc., especially as it affects both public law enforce­ment and the expansion of private adjudication in criminal law.

Columbia Law Review Online, Vol. 119, March 2019

By Jackie O'Brien

As American society has reckoned with the harmful effects of mass incarceration, there has been a push to consider alternative forms of achieving justice. Restorative justice is one such method. A transformative approach to conflict resolution inspired by the traditions and practices of indigenous peoples, restorative justice offers a comprehensive means of addressing harm, emphasizing the community, rather than the single act that caused harm. Many jurisdictions and communities have turned to restorative justice to divert cases from the punitive criminal legal system. While there are variations in programs and approaches, many communities integrate restorative justice practices as a means of addressing harm caused by young people. Applying a restorative approach, these initiatives seek to undermine the harmful, life-long effects that interaction with the criminal legal system imposes upon young people.

These restorative alternatives operate against the backdrop of the punitive system, leading scholars, practitioners, and community members to raise concerns about the lack of procedural protections in place for individuals proceeding through these diversionary programs. Because the proceedings are less adversarial in nature, the legal community has sounded the alarm about the potential for self-incrimination, coercion, and less zealous advocacy by counsel. This unease is further compounded by the fact that failure to complete the requirements of these programs can lead to a referral back to the traditional criminal legal system.

The Restorative Justice Community Court of Chicago (RJCC) is one such alternative. Created in 2017, there are now three RJCCs operating in the North Lawndale, Englewood, and Avondale communities. This Comment seeks to analyze the due process concerns raised by members of the legal and restorative justice communities through the lens of the North Lawndale RJCC. Drawing on knowledge gained through my personal observations and interviews, it is clear that due process violations do not present a substantial threat to the success of the RJCC. Programs like the RJCC operate in a gray zone between the legal rigidity of the criminal legal system and the community-oriented approach adopted by the restorative justice community. This framework urges us to evaluate these programs through an alternative lens so that we can better understand their contributions to furthering justice while remaining aware of their shortcomings to create fully restorative spaces.

113 J. Crim. L. & Criminology 685 (2023).

By The American Bar Association, Standing Committee on Legal Aid and Indigent Defense and Moss Adams LLP

The Standing Committee on Legal Aid and Indigent Defense (SCLAID) has jurisdiction over matters related to the creation, maintenance, and enhancement of effective civil legal aid and criminal indigent defense delivery systems and services, including by: (a) advocating for meaningful access to the justice system for all; (b) supporting viable and effective plans to increase funding for legal aid and indigent defense delivery systems and services; and (c) developing standards and policy, disseminating best practices, and providing training and technical assistance.

The American Bar Association Standing Committee on Legal Aid and Indigent Defense (ABA SCLAID) and Moss Adams LLP (Moss Adams) conducted this study on behalf of the Law Offices of the Public Defender of the State of New Mexico (LOPD) to analyze public defense historical caseloads for the State of New Mexico, to calculate the average amount of time attorneys should spend on specific case types to meet the minimum standards for representation, and then to compare the two to determine whether a deficiency of resources exists. This study is referred to as the New Mexico Project. The New Mexico Project consisted of two main phases: (1) an analysis of the New Mexico public defense system’s historical staffing and caseloads; and (2) the application of the Delphi method. The Delphi method is an iterative process used in this study to identify how much time an attorney should spend, on average, in providing representation in certain types of criminal cases. In determining the amount of time an attorney should spend to meet the minimum standards for representation we are guided by the legal standard set out in Strickland v. Washington: “reasonably effective assistance of counsel pursuant to prevailing professional norms.”1 The prevailing professional norms, which anchor the Delphi process, are the Rules of Professional Conduct, the ABA Criminal Justice Standards, and the applicable national and local attorney performance standards. The Delphi method’s structured and reliable technique incorporates the input, feedback, and opinions of highly informed professionals to develop consensus on a specific question. The New Mexico Project consisted of three different Delphi panels: Adult Criminal, Juvenile and Appeals. Participants in each panel were selected based on their substantive expertise and experience in these areas. Participants included public defenders, contract attorneys, and private defense practitioners, and they were approved by independent Selection Panels. Each Delphi area was sub-divided into Case Types and Case Tasks, and further divided by Resolution (e.g. plea/otherwise resolve v. go to trial). For each Case Task in each Case Type, participants are surveyed about the amount of time the task takes and the frequency with which it occurs. The Delphi process in New Mexico consisted of two rounds of online surveys, taken independently. The second-round survey was completed only by those who participated in the first round and included a summary of the responses from the first round for second round participants to consider. A third survey was then conducted in a live group setting only by those who had completed the first and second survey rounds. These participants met over a series of days to review the results of the second survey and developed a professional consensus regarding the appropriate amount of time an attorney should spend on a series of case tasks for each case type2 to provide reasonably effective assistance of counsel pursuant to prevailing professional norms in the State of New Mexico. The result of the Delphi process is the consensus of the expert panel on the Frequency and Time needed to complete each Case Task in compliance with applicable standards, as well as Resolution – the percentage of cases that should plead/otherwise resolve v. go to trial. These consensus decisions are then used to calculate the Delphi result, the time needed for a public defense attorney to provide reasonably effective assistance of counsel to a client in an average case of this Case Type. Applying the Delphi results to historical caseloads, we can determine the total number of hours of public defense attorney time needed in the jurisdiction. Further, we can compare the hours of attorney time currently available in the jurisdiction’s public defense system to the hours needed to determine if the current system has a deficiency or excess of attorney time and the amount of that deficiency or excess.

Chicago: American Bar Association, 2022. 88p.

By Anna VanCleave

The death penalty has gained its legitimacy from the belief that capital prosecutions are more procedurally rigorous than noncapi-tal prosecutions. This Article reveals how a project of heightened capital standards, set in motion when the Supreme Court ended and then revived the death penalty, was set up to fail.

In establishing what a constitutional death penalty would look like, the Court in 1976 called for heightened standards of reliability in capital cases. In the late 1970s and early 80s, the Supreme Court laid out specific constitutional procedures that must be applied in capital cases, and left the door open for the Eighth Amendment to do even more. In the decades that followed, state and federal courts have fueled a perception of heightened procedural rigor in capital cases by referring repeatedly to the heightened standards applica-ble in capital cases.

However, a review of courts’ application of a standard of “heightened reliability” reveals that (1) courts routinely use the language of “heightened” standards while simultaneously applying exactly the same constitutional tests that are used in noncapital cas-es and demonstrating no serious effort to tie procedural rigor to the severity of punishment; and (2) even more problematic, some courts have shown a willingness to use the “heightened reliability” lan-guage to justify a lesser procedural protection for capital defend-ants than that applied to noncapital cases—a perverse application of what was clearly intended to be an added measure of assurance that the death penalty is reserved only for those who are truly guilty and who are the most culpable.

This decades-long failure to observe meaningfully heightened constitutional standards calls into question the death penalty’s in-stitutional legitimacy and raises particular concerns in light of cur-rent Supreme Court trends.

University of Illinois Law Review, Forthcoming. 47 Pages Posted: 19 Apr 2023

By Akhi Johnson and Stephen Roberts 

Prosecutors wield tremendous power. They decide whom to charge— and with what offense—whether to ask for bail, when to provide evidence to the defense, and what plea offer to make. For decades, prosecutors have used their discretion in ways that contributed to mass incarceration and racial disparities in the criminal legal system.1 Yet, despite their immense power, prosecutors had largely not been the focus of criminal legal system reform efforts until relatively recently.2 Starting around 2015, with the help of groups like the American Civil Liberties Union (ACLU) and Color of Change, communities across the nation have begun to demand that their elected prosecutors adopt a new approach that reflects the communities’ priorities.3 As a result, a wave of reform prosecutors has won elections, and reelections, throughout the country.4 In 2017, the Vera Institute of Justice (Vera) launched the Reshaping Prosecution program to help reform prosecutors transform their campaign promises into data-informed policies and practices.5 The program has three goals: (1) to end mass incarceration, (2) to reduce racial disparities in the system, and (3) to help offices be more accountable and transparent to their communities. The program aims to achieve these goals primarily through strategic site engagements during which Vera researchers, former prosecutors, and other programmatic staff assist offices with data analysis, new policy creation, and training on the reforms for line prosecutors. Vera’s review relies primarily on data from the office’s case management system and focuses on key decision points in the life of a case so that prosecutors can gain insights into how their decisions are contributing to mass incarceration and racial disparities. This report provides an overview of Vera’s pilot engagement with the St. Louis City Circuit Attorney’s Office (CAO). It begins by discussing why Vera partnered with CAO and then details the stages of the engagement, initial lessons from the data, and some policy recommendations. The report concludes with some successes and an important lesson learned about the persistence of racial disparities that will inform the program’s future work to reshape how prosecutors do justice.

New York: Vera Institute of Justice, 2020. 26p.

By Jaeok Kim, Cherrell Green, Alex Boldin, Quinn Hood, and Shirin Purkayastha

In April 2019, New York passed historic bail reform that was intended to reduce the use of pretrial detention. The impact was quick and sizable: from April 2019 to March 2020, the number of people incarcerated in New York jails decreased by more than 30 percent. The unprecedented COVID-19 pandemic further decreased the number of people in jail. In July 2020, a daily average of 11,000 people were incarcerated in local jails across New York, hitting a two-decade low.1 Two-thirds of these people were incarcerated in jails outside of New York City. This report provides an extensive look at how five counties—Albany, Broome, Erie, Tompkins, and Ulster—implemented key provisions of the bail reform law. The analysis incorporates multiple data sources, including arrest, jail, and pretrial supervision administrative data; court observations; and system actor interviews. The major findings are as follows: 1. Changes in pretrial admissions and likelihood of pretrial detention § Across the counties, pretrial populations decreased more than 35 percent after the implementation of bail reform. § The likelihood of pretrial detention after arrest decreased by more than 35 percent after the implementation of bail reform. 2. Putting policy into practice: Findings from 300 virtual court observations § Mandatory release effectively limited the use of money bail. § Prosecutors and judges relied on money bail where still allowed. Judges set bail in about a quarter of all arraignments and for almost 60 percent of cases with qualifying charges. § When setting bail, judges rarely considered ability to pay and often set bail above defense counsel requests. In more than 70 percent of cases for which judges set bail, discussion about the person’s ability to pay remained absent from their arraignment hearing. § Prosecutors and judges relied on criminal history and severity of charge when assessing bail in more than a quarter of cases in which bail was set. § Although it occurred rarely, the 2020 amendments to bail reform allowed judges to use ambiguity in the statutes to set bail on charges that otherwise required mandatory release. 3. Twenty-six system actors’ perceptions of bail reform § More than 90 percent of system actors interviewed supported the bail reforms. § Virtual arraignments, introduced in response to the COVID-19 pandemic, hampered attorney–client communication. Defendants faced many barriers in returning to court, including substance use, mental health, and financial struggles. § Inconsistent practices in local and county courts created challenges to the successful implementation of the law. 4. Changes in the use of pretrial supervision after bail reform implementation § The number of people admitted to pretrial supervision in Albany, Broome, and Ulster Counties decreased by more than one-third immediately after bail reform went into effect. § COVID-19 resulted in short-term declines in pretrial supervision admissions in Albany, Broome, and Ulster Counties, and a more prolonged effect in Erie County. § The share of new supervision admissions for misdemeanor cases dropped more than 30 percent at the beginning of the pandemic, then returned to prepandemic levels. § Variations in the use of release conditions reveal different court practices across counties. § Less than 15 percent of new pretrial supervision cases ended in revocation within six months, mostly for felony rearrest or failure to appear.

New York: Vera Institute of Justice, 2022. 47p.

By Akhi Johnson, et al.

In 2020, after a request for proposal process, Vera began partnerships with prosecutors’ offices in six jurisdictions: Boulder County, Colorado; Contra Costa County, California; DeKalb County, Georgia; Ingham County, Michigan; Ramsey County, Minnesota; and Suffolk County, Massachusetts. The partnerships were initially slated to run for 12–18 months, but the pandemic and the 2020 racial justice movement required adapting and lengthening those engagements to two years. Three goals guided the partnerships: reducing mass incarceration, addressing racial disparities, and increasing accountability to those most impacted by the criminal legal system. Prosecutors wield tremendous power, as their decisions reach nearly every aspect of the criminal legal system. They decide whom to charge—and with what offense; whether to ask for bail; when to provide evidence to the defense; what plea offer to make; what sentence to recommend; and, in some instances, whether someone should receive parole. However, prosecutors have the greatest influence at charging, when they decide whether someone enters the criminal legal system, and their charging discretion is virtually unchecked. Although Vera helped each office to examine its impact at every discretion point, the primary focus was on how to reduce harms at charging—through who was charged, what crime was charged, and who could be diverted away from traditional prosecution. Vera’s approach to addressing racial disparities focused on systemic issues rather than potential biases of individual actors. Rather than analyze whether similarly situated people received different treatment based on their race, Vera highlighted broader trends to illustrate which communities the criminal legal system impacts most and in what ways. For example, Vera’s analysis revealed that although Black people represent 55 percent of DeKalb County, Georgia’s population, they made up 81 percent of the adult caseload, 79 percent of juvenile cases, and 93 percent of children charged as adults.2 Rather than seeking to determine who was at fault, Vera’s analysis describes trends and starts conversations within communities about the historical and societal factors contributing to disparities and how stakeholders can respond. For each partnership, a key goal was to help prosecutors be more accountable to communities impacted by their decisions. In many areas around the country, people do not know who their elected prosecutors are, let alone how an office’s decisions affect safety in their communities. That gap represents a missed opportunity to learn from people uniquely positioned to inform policy discussions, and it leaves communities ill-equipped to gauge the performance of their elected officials. Vera worked in partnership with each office to facilitate the public sharing of data to inform communities and ground conversations on potential reform efforts. As one community group noted, Vera’s engagement “has made our prosecutor more aware of the need for a greater relationship with the community. . . . [W]e have a lot of systemic issues . . . [and] Vera’s presence has allowed us to continue to push the conversations forward.” Multiple factors impacted each office’s ability to implement reforms during the engagements, but the political climate was most significant. With increased scrutiny of reform prosecutors and false narratives that communities had to choose between safety and reform, some jurisdictions faced unique challenges in announcing changes. Vera worked with each jurisdiction to assess what was feasible in the current moment and adjusted accordingly. Despite the political climate, our partners made significant strides—including a groundbreaking policy in Ramsey County, Minnesota, inspired by Philando Castile’s death, to deter non– public safety (pretextual) traffic stops. However, even when an office did not announce a particular policy, Vera observed shifts in how prosecutors approached cases based on discussions prompted by the engagements. As partner offices noted, Vera’s work prompted new discussions about how to assess cases and revealed problem areas. One prosecutor reflected that the engagement “changed the way I think about my job and my role . . . being more mindful about the decision to charge somebody with a felony, and, you know, even if that case is later dismissed, the impact that can have on them.”

New York: Vera Institute of Justice, 2023. 40p.

By Gabriel Petek

Individuals charged with a crime have a right to effective assistance of legal counsel under the U.S. and California Constitutions. This is to ensure they receive equal protection and due process under the law. The government is required to provide and pay for attorneys for those individuals who are unable to afford private attorneys. This is known as “indigent defense.” Importance of Effective Indigent Defense. In addition to being a constitutional right, effective indigent defense in criminal proceedings can help mitigate or eliminate major consequences that defendants face regardless of whether they are convicted, such as losing a job due to being held in jail until their case is resolved. Effective indigent defense can also help ensure that all individuals are treated equitably in criminal proceedings, particularly lower-income individuals and certain racial groups who are at greater risk of experiencing serious consequences from being involved in the criminal justice system. Counties Primarily Responsible for Indigent Defense. In California, counties are primarily responsible for providing and paying for indigent defense. However, recent litigation suggests that the state could be held responsible for ensuring that effective indigent defense is being lawyerprovided. Indigent defense is generally provided in a combination of three ways: (1) public defender offices operated by the government, (2) private law firms or attorneys that contract with the government to provide representation in a certain number of cases and/or over a certain amount of time, or (3) individual private attorneys who are appointed by the court to specific cases. The actual provision of indigent defense services, however, varies by county. State Lacks Information to Assess Indigent Defense Service Levels. The state currently lacks comprehensive and consistent data that directly measures the effectiveness or quality of indigent defense across the state. This makes it difficult for the Legislature to ensure effective indigent defense is being provided. Analysis of Limited Data Raises Questions About Effective Provision of Indigent Defense. In the absence of consistent statewide data and metrics more directly measuring the effectiveness or quality of indigent defense, we analyzed limited available data comparing funding, caseloads, and staffing of indigent defense providers with district attorneys who prosecute cases, allowing for a rough, indirect assessment of existing indigent defense service. The identified differences are notable enough that they raise questions about the effective provision of indigent defense in California. For example, in 2018-19, spending on district attorney offices was 82 percent higher than on indigent defense. Recommend Three Key Steps for Legislative Action. We recommend three key steps that the Legislature could take to ensure it has the necessary information to determine whether a problem exists with indigent defense service levels, what type of problem exists, and how to effectively address such a problem. Specifically, we recommend the Legislature: (1) statutorily define appropriate metrics to more directly measure the quality of indigent defense; (2) require counties collect and report data to the state’s Office of the State Public Defender; and (3) use the data to determine future legislative action, such as identifying whether resources are needed to ensure effective indigent defense as well as how such resources could be targeted to maximize their impact

Sacramento: Legislative Analyst's Office, 2022. 28p.

by Duren Banks, Lynn Langton, Madison Fann, Michael G. Planty, Michael J. D. Vermeer, Brian A. Jackson, Dulani Woods

The systems that provide counsel for indigent adult and juvenile defendants in the United States vary considerably across states, localities, and judicial jurisdictions. In addition to the challenges associated with the myriad systems for providing indigent defense, there are other inherent challenges to providing effective defense counsel. These challenges include a lack of sufficient resources in general, access to investigators and other support staff, workload standards and other standards to support effective representation, strategies to support the recruitment and retention of quality counsel dedicated to indigent defense, and specialized training and other needs related to the provision of public defense with certain clients or cases.

On behalf of the National Institute of Justice, RTI International and RAND Corporation researchers conducted an environmental scan to develop a set of information gaps or research priorities that, if addressed, could advance knowledge around effective indigent defense strategies. In the scan, the researchers (1) explored the literature around the needs of the indigent defense field, (2) obtained input from leading practitioners through individual interviews, group discussion, and interactive feedback, and (3) reviewed the priorities of federal and private research and practitioner organizations.

Key Findings

• There is a lack of basic descriptive data about indigent defendants (e.g., which defendants have lawyers representing them and which are deprived of lawyers).

• Many jurisdictions are not equipped to provide pre-court or pre-charge representation.

• Excessive caseloads have an impact on the quality of representation, the ability to adhere to professional practice standards, and client-attorney relationships; that impact is not well understood.

• In some jurisdictions, there is limited or no access to attorneys with the qualifications, experience, and desire needed to represent people in criminal cases who are unable to afford counsel.

• In many jurisdictions, particularly rural communities, there is limited or inconsistent access to the nonattorney case support needed to provide quality indigent defense representation.

• It is difficult to hire qualified and diverse indigent defense attorneys.

• Because of the differing systems for assigning counsel across the United States, many defendants who are accused of misdemeanors or other lower-level crimes do not receive the assistance of counsel when facing pretrial detention or fines, fees, or other penalties associated with a guilty plea.

• There is a lack of understanding about the extent to which the racial, cultural, and socioeconomic backgrounds of indigent defense attorneys affect the experiences of the clients they serve.

• Emerging research shows that holistic defense strategies, which address co-occurring and collateral factors associated with criminal cases, hold promise for advancing justice and improving outcomes for individuals and communities.

Recommendations

• Require courts to collect descriptive data on which defendants have representation; leverage this information to answer research questions.

• Assess innovative options used in some jurisdictions to provide earlier access to a lawyer.

• Examine areas with different levels of caseloads and examine the differences across a broad variety of outcomes and impacts and for different types of clients and cases.

• Conduct research that offers a more nuanced understanding of the administration of indigent defense in small, rural areas.

• Conduct research to identify the impacts of nonattorney case support on case outcomes.

• Explore strategies for expanding access to paraprofessional expertise.

• Study other systems that are working well.

• Conduct research on the scope of rules, practices, and resource decisions that limit access to counsel.

• Obtain client perspectives on differences in the level and quality of representation received through public defense and noninstitutional representation systems; focus on reducing those differences.

• Conduct research to identify the full scope of issues that make it difficult to recruit qualified and diverse attorneys.

• Develop undergraduate and law school internship programs and defense counsel pipelines.

• Evaluate training opportunities; determine whether training is effective and under what circumstances.

• Conduct research on the complexities that public defense attorneys face and the support and resources needed to successfully manage these complexities.

• Engage with defendants to get their perspectives on what quality counsel means and how it is operationalized.

• Conduct research to connect outcomes with what indigent defense attorneys are doing to understand the types of engagement that are most effective.

• Santa Monica, CA: RAND, 2023. 20p.

by Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee, Stephen F. Hanlon

Public defense attorneys with excessive caseloads cannot give appropriate time and attention to each client. Excessive caseloads violate ethics rules and inevitably cause harm. Overburdened attorneys are forced to choose cases or activities to focus on, such that many cases are resolved without appropriate diligence. A justice system burdened by triage risks unreliability, denying all people who rely on it — victims, witnesses, defendants, and their families and communities — efficient, equal, and accurate justice.

Ethics rules require lawyers to limit their workloads to ensure competent representation. But what should those limits be? Clear standards for public defense workloads are essential to policymakers' ability to fund and staff the defense function at appropriate levels, to public defense authorities' ability to conduct appropriate oversight, and to attorneys' ability to provide their clients with reasonably effective assistance of counsel pursuant to prevailing professional norms as guaranteed by the Sixth Amendment to the U.S. Constitution.

To create new national public defense workload standards, researchers conducted a comprehensive review and analysis of 17 state-level public defense workload studies conducted between 2005 and 2022 and then employed the Delphi method to facilitate the efforts of a panel of 33 expert criminal defense attorneys from across the country to come to a consensus on the average amount of time needed to provide constitutionally appropriate representation in an array of adult criminal cases.

Key Findings

Based on the consensus of an expert Delphi panel, the average time needed to represent an individual in an adult criminal case ranged from 286 hours to 13.5 hours, depending on case type

• High-severity felony cases required the most time, on average: cases with a possible sentence of life without parole, 286 hours; murder cases, 248 hours; sex crimes cases, 167 hours; and other high-severity felony cases, 99 hours.

• Mid- and low-severity felony cases required an average of 57 and 35 hours, respectively.

• High- and low-severity cases for driving under the influence required 33 and 19 hours, respectively.

• High- and low-severity misdemeanor cases required an average of 22.3 and 13.8 hours, respectively.

• Probation or parole violation cases required an average of 13.5 hours.

Existing national public defense workload standards are outdated, not empirically based, and inadequate

• The 1973 National Advisory Commission on Criminal Justice Standards and Goals (NAC) standards fail to differentiate among types of felonies, giving equal weight to a burglary, a sexual assault, and a homicide.

• Using the 1973 NAC standards creates a risk of excessive workloads.

New national workload standards better reflect modern criminal defense practice and professional and ethical responsibilities

• The new standards reflect expert attorneys' experiences with current criminal defense practice, including digital discovery and forensic evidence, as well as the expanded scope of a criminal defense lawyer's obligations, including advising clients on collateral consequences.

• The new workload standards can be used to assist public defense agencies, policymakers, and other stakeholders in evaluating defender workloads.

Santa Monica, CA: RAND, 2023. 186p.

KAH Webb, SA Riley, MT Wells

Pretrial risk assessment tools are used in jurisdictions across the country to assess the likelihood of "pretrial failure," the event where defendants either fail to appear for court or reoffend. Judicial officers, in turn, use these assessments to determine whether to release or detain defendants during trial. While algorithmic risk assessment tools were designed to predict pretrial failure with greater accuracy relative to judges, there is still concern that both risk assessment recommendations and pretrial decisions are biased against minority groups. In this paper, we develop methods to investigate the association between risk factors and pretrial failure, while simultaneously estimating misclassification rates of pretrial risk assessments and of judicial decisions as a function of defendant race. This approach adds to a growing literature that makes use of outcome misclassification methods to answer questions about fairness in pretrial decision-making. We give a detailed simulation study for our proposed methodology and apply these methods to data from the Virginia Department of Criminal Justice Services. We estimate that the VPRAI algorithm has near-perfect specificity, but its sensitivity differs by defendant race. Judicial decisions also display evidence of bias; we estimate wrongful detention rates of 39.7% and 51.4% among white and Black defendants, respectively.

Cornell University Pre-publication paper: 2023. 33p,

By Daniel Richman

Even as others make cogent arguments for diminishing the work of prosecutors, work remains — cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group — judges, prosecutors and defense counsel — can provide. The (immediate) future also requires prosecutors to do more to recognize the distinctive role they can play in combating illegitimate domination.

50 Fordham Urb. L.J. 1139 (2023).

By Catherine L. Crooke

Research on the temporal dimensions of international migration focuses on how migrants experience time. This study instead turns attention to public interest lawyers, whose work plays a crucial role in ensuring favorable legal outcomes for immigrants, in order to consider time’s salience within the US asylum context. Based on twelve months of ethnographic fieldwork with Los Angeles-based public interest asylum attorneys, this article argues that lawyers confront both weaponized efficiency and weaponized inefficiency in the course of representing asylum seekers. Advocates must rush to keep pace, on the one hand, as various state actors accelerate asylum processes and, on the other, find ways to advance clients’ interests even as state agencies selectively slow procedures to a standstill. These findings affirm that temporal contradictions define the US asylum system. Further, they demonstrate that lawyers experience these contradictions not as natural phenomena but, rather, as temporal violence: in a range of contexts, government action mobilizes time— whether actively or passively—in the service of migration control.

Law & Social Inquiry , First View , pp. 1 - 28

By Doron Teichman, Eyal Zamir, Ilana Ritov

Previous studies of judgment and decision-making in adjudication have largely focused on juries and judges. This body of work demonstrated that legal training and professional experience sometimes affect attitudes and mitigate the susceptibility to cognitive biases, but often they do not. Relatively few experimental studies examined the decisions of prosecutors and defense lawyers, although they play a major role, especially in legal systems where prosecutors have a broad discretion in charging decisions, courts' discretion regarding sentencing is constrained, and plea bargains abound. This study directly compares laypersons, law students, and legal practitioners—including prosecutors and defense lawyers—in terms of their attitudes about the criminal justice system and their cognitive biases. It was found that the outcome bias and the anti-inference bias influenced all groups similarly, but an irrelevant anchor only impacted the decisions of laypersons and law students, and not those of legal professionals. Prosecutors were significantly more inclined to judge a behavior as negligent and reach factual conclusions supporting a conviction. However, the hypothesis that the susceptibility of prosecutors and defense lawyers to cognitive biases would be affected by their role was not borne out. The article considers possible explanations for the reported findings, and discusses their policy implications.

Journal of Empirical Legal Studies published by Cornell Law School and Wiley Periodicals

By Maresi Starzmann and Andrew Taylor

The reform prosecution movement faces a critical moment. With the recent uptick in violent crime, reform prosecutors face unprecedented attacks and calls for a return to “tough-on-crime” tactics. Those attacks rest on the false belief that criminal legal system reforms endanger public safety. To sustain the movement, reform prosecutors must build the case that their approach will make communities safer, and the Vera Institute of Justice’s (Vera’s) Reshaping Prosecution initiative is well-positioned to help them do so. Reshaping Prosecution works with prosecutors to build evidence that alternatives to incarceration offer a better path to safer communities. In doing that work, Vera centers race equity and emphasizes collaborating with communities because the path to solutions begins with the voices of those most proximate to the issues. Vera’s partnership with Wyandotte County District Attorney (DA) Mark Dupree’s office from 2019 to 2022 represented a unique pilot to center marginalized voices in prosecution reform efforts. Vera provided its traditional quantitative analysis of racial inequities to highlight

New York: Vera Institute of Justice, 2023. 38p.

By Liz Komar and Nicole D. Porter

After 50 years of mass incarceration, the United States faces a reckoning. While crime is far below its peak in the early 1990s,1 the country continues to struggle with an unacceptable amount of gun violence.2 Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high.3 A great imbalance in our national approach to public safety, one that relies too heavily on the criminal legal system, has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of families and communities to address the circumstances that contribute to crime. This report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

Washington, DC: The Sentencing Project, 2023. 10p.

Edited by Monika Florczak-Wątor

This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges.

London; New York: Routledge, 2022. 293p.