By Lorinda Riley

his research report describes a collaboration between the University of Hawaii and Sisseton-Wahpeton Oyate Tribal Court. The research team sought to understand when and how tribal judges use restorative approaches in their cases, and they specifically hoped to look at the role of substance use and crime severity in the decision-making process of when to use restorative approaches. The report provides a summary of the research, including conceptualization and re-conceptualization prompted by legal changes and the Covid-19 pandemic, a statement of problem and research question, justice system background, research methodology, and findings; it details the process of collaboration; and provides author reflections on challenges experienced, lessons learned, and successes; and the appendices include supporting documents. The author describes how the research team developed the survey that would be used in the research study, including questions about the role of a tribal court in describing the strength of identification with restorative principles. Survey responses indicated that respondents self-rated their knowledge of traditionally appropriate behavior as a 7.2 and knowledge of modern-day behavior as 7.6 out of 10; respondents overwhelmingly believed that the Tribal Court should focus on “getting to the truth” and “making the perpetrator a productive member of society,” but were equally split about whether the court should “punish the offender” or “make the victim whole.” The author suggests that the results indicate the community has endorsed a desire for a restorative-focused tribal justice system. The author also noted the cultural differences and experiences of individuals living on reservation compared to those in the general population.

University of Hawaiʻi Mānoa: 2023. 64p.

By  Besiki Luka Kutateladze; et al.

One of the key decisions that prosecutors make is whether or not to file charges against a defendant. Depending on the office, this decision point may be called initial case assessment, screening, review, or filing. Prosecutors, or in some instances paralegals, review evidence provided by law enforcement and decide whether to file any charges in each case. The core purpose of case screening is to identify and eliminate cases that cannot or should not be prosecuted. In other words, prosecutors have the difficult task of assessing limited case facts in front of them and rejecting cases 1) that do not involve enough evidence to support a conviction, and 2) for which prosecution would not be in the best interest of justice and victims. The decision to reject a case is highly consequential because it means that the defendant will avoid formal charges and conviction. Cases can also be dismissed after they are filed. While judges can dismiss cases— due, e.g., to missing case processing deadlines or 4th amendment violations—most dismissal decisions are made by prosecutors. Cases may be dismissed by a prosecutor due to evidentiary issues (including victim or witness cooperation) or plea negotiations in other cases, for example. PPI 2.1 examines the relationship between these two highly discretionary case outcomes: case rejection and case dismissal. While there is no agreed-upon standard for what proportion of referred cases should be rejected for prosecution, or what proportion of filed cases should be dismissed, we suspect that these proportions will vary across jurisdictions and by offense types. 

Prosecutorial Performance Indicators , 2022. 12p.

By The U.S. Government Accountability Office

The federal judiciary investigates fraud, waste, and abuse allegations to hold its judges and staff accountable for their conduct as government officials and managers of public resources. But federal judiciary policies for addressing alleged fraud, waste, and abuse don't fully align with investigative best practices on establishing documented procedures and ensuring independence. For example, investigations are referred to the same unit from which the allegations originated—raising concern about independence and transparency. We recommended that an independent office be created to carry out the judiciary's fraud, waste, and abuse program.

Washington, DC: GAO, 2022. 50p.

By Patrick McNeil, et al.

“Persevere: Our Ongoing Fight for an Equal Justice Judiciary” documents the work during the 117th Congress to build an equal justice judiciary by nominating and confirming diverse and highly qualified individuals — including people with civil rights and public defender experience — to serve on the federal bench. The civil rights community has long understood that for there to be equal justice in America, we need fair-minded judges and justices who are committed to protecting the rights of all people and who come from all of our communities. This report details many of the judicial nominees — including Justice Ketanji Brown Jackson — who were confirmed during the 117th Congress, explains why their confirmations matter, and calls on lawmakers to bolster our democracy by strengthening the judiciary so that it works for all of us.

Washington, DC: The Leadership Conference on Civil and Human Rights , 2023. 56p.

By Jennifer A. Tallon, Olivia Dana, and Elise Jensen 

 Scholars have long contended that crimes involving violence are often ambiguously defined1 and overlooked as a critical driver of mass incarceration. 2 Currently, individuals charged with violent crimes make up nearly a third of pretrial jail populations across the country, and people convicted of violent crimes represent more than half the number of people in state prisons. 3 Policymakers have long grappled with how to enact criminal legal system reforms that reduce incarceration for such charges while also ensuring public safety. Decisions about cases involving violence can be fraught for criminal legal system stakeholders. Both the media and policymakers give them outsized attention—in particular, decisions related to pretrial release and the use of bail—a phenomenon witnessed most recently with the spike in pandemic-era violence in many parts of the country.  Elected officials have the difficult task of balancing public perceptions of the most effective way to address crime with the reality that those strategies might make things worse, while navigating the impact both might have on their electability. 5 Although there is promising evidence that treatment has the potential to reduce recidivism of individuals who commit certain types of violent offenses, policymakers and practitioners must contend with public outcry associated with being “too lenient” in highly publicized cases, the resulting fear-driven and knee-jerk demands for more punitiveness, and perceptions that “nothing works.”6 In contrast, research has demonstrated that status quo approaches emphasizing incarceration may exacerbate defendants’ underlying risk factors and be counterproductive to public safety in the long term. …. Recent sentencing reforms and legislative enactments will now enable prosecutors in some jurisdictions to initiate or support early release for individuals previously convicted of violent crimes who have served lengthy terms of imprisonment.11 But not enough is known about how prosecutors arrive at their decisions or the prevalence of specific practices across different prosecutors’ offices.  The results of our survey clearly show an appetite for new approaches among prosecutors. But they also suggest that how prosecutors think about violence and the goals of prosecution can be rife with paradoxes. ….

New York: Center for Court Innovation, 2022. 16p.

By Ronald Wright and Jenny Roberts  

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work. Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers. Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints. Over the decades, however, theoretical understandings of the defense attorney’s work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act. Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages

Annu. Rev. Criminol. 2023. 6:241–64 

By  Joshua Page, Victoria Piehowski, Joe Soss

  Among the institutions that link criminal justice and inequality in the United States, commercial bail remains one of the most important yet least understood. Each year, the bail industry extracts millions of dollars from lower-income Americans, disproportionately draining resources from poor communities of color. We draw on ethnographic research to explore how the bail system operates as a predatory social process, arguing that gender interacts with class and race to structure resource extraction in this field. Poor women of color are especially subject to bail predation because they are seen within the larger social organization of care as bearing primary responsibility for defendants. Gendered care work and emotional labor are thus central to the field’s logic of practice and to bail industry profits.

RSF: The Russell Sage Foundation Journal of the Social Sciences 5(1): 150–72  

By René Ropac and Michael Rempel

This report examines the impact of New York’s bail reform law on recidivism in New York City. We sought to produce a credible analysis of the impact of releasing people under reform who would have otherwise faced bail or pretrial detention. 

Key Findings:

• Eliminating bail for most misdemeanor and nonviolent felony charges reduced recidivism. There were reductions for any re-arrest (44% vs. 50%) and felony re-arrest (24% vs. 27%) over two years.

• For people remaining legally eligible for bail (most of whom were charged with violent felony offenses), reducing the use of bail through measures such as supervised release expansion or requiring judges to set the least restrictive condition did not affect recidivism in either direction.

• The 2020 amendments targeted a specific subgroup of people whose re-arrest rates had increased under the original reforms.

• Beyond the aforementioned overall takeaways, bail reform had varying recidivism effects depending on people’s charges and recent criminal history.

New York: Data Collaborative for Justice, 2023. 56p.

By Joshua Page and Christine S. Scott-Hayward

In this review of scholarship on bail and pretrial justice in the United States, we analyze how the field of bail operates (and why it operates as it does), focusing on its official and unofficial objectives, core assumptions and values, power dynamics, and technologies. The field, we argue, provides extensive opportunities for generating revenue and containing, controlling, and changing defendants and their families. In pursuit of these objectives, actors consistently generate harms that disproportionately affect low-income people of color and amplify social inequalities. We close with an analysis of political struggles over bail, including current and emerging possibilities for both reformist and radical change. In this, we urge scholars toward sustained engagement with people and organizations in criminalized communities, which pushes scholars to reconsider our preconceptions regarding safety, justice, and the potential for systemic change and opens up new avenues for research and public engagement.

   Annu. Rev. Criminol. 2022. 5:91–113

By Lauren Nickolls

This Library briefing paper provides an overview of police powers to release suspects from custody under investigation and on pre-charge bail. It also discusses the two major reforms that pre-charge bail has undergone in the last decade, first in 2017 and then in 2022.   When the police have arrested and detained a suspect but do not have the evidence to charge them, the suspect must be released. They can be released either on pre-charge bail (also known as police bail), “under investigation” (RUI) or with “no further action”.  

London: UK Parliament, House of Commons Library, 2023. 36p.

By Sandra G. Mayson 

ABSTRACT An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice. This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and normative ambiguity in the concept of “unaffordable” bail. It explains in practical terms what it would entail for a court system to treat unaffordable bail as a detention order. One hurdle is that both legal and policy standards for pretrial detention are currently in flux. Recognizing unaffordable bail as a detention order foregrounds the question of when pretrial detention is justified. This is the key question the bail reform movement must now confront.  

69 Duke L.J. 1643 (2020)  

By Don Stemen and David Olson

  In response to widely voiced criticism that monetary bail imposes an unfair burden on poor defendants, many of whom remain in jail because they are unable to acquire the money for bail, numerous jurisdictions—cities, counties, and states—have enacted changes in pretrial practices and policy intended to reduce or eliminate the use of bail. Although under long-established practices and policies most defendants required to post bail eventually do so, critics of these reforms contend that they endanger the public by allowing arrestees to remain at liberty while awaiting trial, leading to substantial increases in crime. To assess these arguments, we considered eleven bail-reform jurisdictions to determine the effect, if any, of these policy changes on crime. Violent crime trends after reforms present no clear or obvious pattern in these jurisdictions. In six places, violent crime decreased in the year after reforms. In all these instances, it decreased more than the national average did in that year, or it decreased while the national average increased. In four jurisdictions, violent crime increased while the national average decreased in the same year….

New York: Harry Frank Guggenheim Foundation , 2023. 23p.

By  Ilya Klauzner

A program designed to keep young people out of remand significantly reduces the likelihood of custody. However, its limited reach means very few young people receive this assistance. The NSW Bail Assistance Line is an after-hours helpline that assists young people who are likely to be remanded by police gain access to bail.  Young people can be connected with accommodation, transport and other support services to help them satisfy the conditions of a bail order. A new evaluation by the Bureau of Crime Statistics and Research considers the number of young people helped by this program and how placement impacts the likelihood of incarceration and reoffending. The study found that the number of young people receiving bail through the Bail Assistance Line is low.   In the first half of 2019, the Bail Assistance Line placed 51 young people; or 9.4% of the 542 cases that were bail denied by police or placed by the Bail Assistance Line.  While the number of placements is low, the number of bail placements through the service has in fact more than doubled over the 8 years from 2011. Young people helped by the Bail Assistance Line are more likely to be female, non-Aboriginal defendants with shorter criminal histories. Services are strongly concentrated in urban areas and Greater Sydney. While reach is low, the study found positive outcomes for those assisted.  In particular, in the six months after the bail decision, young people placed by the Bail Assistance Line were 16% less likely to be incarcerated. According to Jackie Fitzgerald, Executive Director at BOCSAR, “Expanding the Bail Assistance Line has the potential to increase the number of young people placed on bail. However, the impact depends on police engaging the Bail Assistance Line earlier in the bail process and police willingness to consider varying a young person’s bail determination.”

Sydney: NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No. CJB237. 2021. 32p.

By Min-Taec Kim

The aim of this study is to estimate the causal impact of appearing via audio-visual link (AVL) on the likelihood of being granted bail. Audio-visual link describes the video conferencing equipment to facilitate court appearances without the defendant being physically present. To estimate the impact of appearing via AVL on bail outcomes, we compare individuals who have their first court bail hearing via AVL at two NSW Correctional Centres, Amber Laurel and Surry Hills, between Jan 2018 and Feb 2020 with similar individuals over the same period. The credibility of the estimates hinge on two factors:
1) The extent to which we have observed and modelled the factors that influence the bail decision of the magistrate, and 2) The extent to which the allocation of AVL is ‘as good as random’ after controlling for all observed factors. Three statistical approaches (logistic regression, Mixed effects regression and a generalised random forest) are used to adjust for the observed differences between these two groups and estimate the causal impact of appearing via AVL.

Sydney: NSW Bureau of Crime Statistics and Research (BOCSAR), Crime and Justice Bulletin No. CJB235. 2021. 40p.

By The U.S. Commission on Civil Rights

This report examines current approaches to reforming the pre-trial and bail systems in the U.S. criminal justice system. The report reveals that between 1970 and 2015, there was a 433% increase in the number of individuals who have been detained pre-trial, and pre-trial detainees represent a larger proportion of the total incarcerated population.

Washington, USCCR, 2022. 281p.

By The  U.S. Commission on Civil Rights,  Kentucky Advisory Committee

The Kentucky Advisory Committee (“Committee”) to the U.S. Commission on Civil Rights examined the pretrial detention and bail process in Kentucky. The Committee’s work focused on the impacts and uses of cash bail—that is, the money an individual must pay to secure their release from detention pretrial—in the state. As part of the inquiry, the Committee heard testimony on this topic from a diverse group of panelists during public meetings. The use of cash bail is prevalent in Kentucky courts, posing significant challenges to low-income defendants. A study by the Pegasus Institute in 2016 found that over 64,000 nonviolent, nonsexual offenders—70 percent of whom were deemed to be at low to moderate risk for reoffending prior to trial—were detained in Kentucky for an average of 109 days pretrial because they could not afford to pay their bail.1 The Committee heard several key themes throughout their inquiry which evidenced the need for cash bail reform in the state to achieve more equitable and effective public safety outcomes. These key themes included (1) the failure of Kentucky’s pretrial risk assessment tool to reduce pretrial detentions and provide reliable risk assessments; (2) the widely varied conditions of release for similarly situated defendants across the state; and (3) the negative consequences caused by unnecessary pretrial detention of low- to moderate-risk nonviolent and nonsexual alleged offenders. ….

Washington DC: USCCR, 2021. 16p.

By Don Weatherburn, Steve Yeong, Suzanne Poynton, Nikky Jones and Michael Farrell

The Drug Court has been in operation in New South Wales since 1999. It is reserved for drug dependant individuals residing in Western or South Western Sydney who have (or intend to) plead guilty to a non-violent summary offence and are likely to receive a prison sentence. Participation in the Drug Court involves intensive supervision and monitoring by the court, frequent drug testing, sanctioning for non-compliance and treatment for drug dependency. The current study extends an earlier evaluation of the NSW Drug Court undertaken by Weatherburn et al. (2008). It aims to assess whether the Drug Court has any long-term positive effect on re-offending. Specifically, it compares individuals accepted into the Drug Court with individuals referred to but not accepted onto the program across five outcomes:
1. Time to first new offence of any type;
2. Time to first new person offence;
3. Time to first new property offence;
4. Time to first new drug offence;
5. Total number of reconvictions after referral to the Drug Court.

Sydney:  NSW Bureau of Crime Statistics and Research, 2020. 16p.

By The European Monitoring Centre for Drugs and Drug Addiction 

This publication answers some of the more frequently asked questions raised in discussions about cannabis legislation. While the primary focus is on the use of cannabis for recreational purposes, relevant legislation for other uses, including medical and commercial cannabis-derived products such as cosmetics, wellness products and foods, is included in order to provide the necessary context for various policy initiatives.

Luxembourg: Publications Office of the European Union, 2023. 57p.

Edited And Translated By Carl Stephenson And Frederick George Marcham

FROM THE PREFACE: “ In organizing a book of this sort, and one that must be kept to a useful size for an elementary course, the most difficult task is that of selection. Possibly half the available space must be assigned to the great monuments that everybody considers essen- tial. But from all the other accumulated records of thirteen cen- turies just what shall be taken? Constantly faced with the embarrassing duty of excluding one document in order to include another, we have in general sought to be guided by the experience of the class-room--to govern our choice by the needs of the ordinary student. And above all else we have prized direct informa- tion concerning the organs of government….”.

London. Harper & Brothers Publishers. 1937. 933p. USED BOOK. MAY CONTAIN MARK-UP

Edited by  Anna Nylund • Kaijus Ervasti • Lin Adrian

• Provides access to twelve unique studies by researches from Denmark, Finland, Norway and Sweden that were previously not accessible in English

• Gives a research-based insight into different areas of mediation such as family mediation, criminal mediation and court-connected civil mediation

• Offers a sound foundation for implementation of mediation legislation and programs

Cham: Springer Nature, 2018. 268p.