By Bruce A. Green and Rebecca Roiphe

There is broad agreement that federal prosecutors should not use their power to pursue partisan political objectives, but there is stark disagreement about how to prevent them from abusing their power in this way. Geoffrey Berman, a former United States Attorney for the Southern District of New York, recently argued that U.S. Attorneys should have complete autonomy and independence from the Attorney General and administration. Attorney General Bill Barr, in contrast, has insisted that Attorneys General should have full control over prosecutors so the administration can be held politically accountable. Neither view fully addresses the problem. Barr minimizes the significant risk that the Attorney General will undermine the interests of justice by doing the bidding of the administration, and Berman ignores the possibility that U.S. Attorneys will act on their own inappropriate political bias.

We propose a system of checks and balances in which prosecuting a politically sensitive case would require approval from both the Attorney General and the U.S. Attorney. Recognizing Berman’s argument that the greatest threat of politicization comes from the Attorney General, we offer two additional proposals to help preserve the independence and integrity of U.S. Attorneys. First, Congress should clarify that the President and Attorney General lack authority to remove and replace U.S. Attorneys who are appointed by district courts prior to the confirmation of presidential nominees; and second, the Attorney General should be restricted from handpicking partisan prosecutors to oversee politically-charged investigations and prosecutions. While there is no simple solution to the politicization of federal prosecution, restructuring prosecutorial and political power within the DOJ to reduce partisanship, both real and apparent, is, as Berman recognizes, an important component

 Denver Law Review, Vol. 100, No. 2, 2023, NYLS Legal Studies Research Paper No. 4373301

By Helen Mills, Matt Ford and Roger Grimshaw

The usual suspects uses national data to assess the use of joint enterprise laws in prosecutions and convictions for serious violence in England and Wales over the last fifteen years. It is the first publication to track information over this significant period of years, and features up-todate figures inclusive of the period post the 2016 Supreme Court judgment, which ruled the law had taken‘a wrong turn’ for more than thirty years. In this report we use the best available data to answer questions about the scope, demographics and changes over time in the use of joint enterprise. Until it is routinely recorded when a prosecution and conviction relied on joint enterprise or secondary liability laws, these approximations are the best available sources to address such important questions.  

London: Centre for Crime and Justice Studies 2022. 24p.

By Phil Bowen

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

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

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

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

London: Barrow Cadbury Trust, 2022. 39p.

Edited by José A. Brandariz, Witold Klaus and Agnieszka Martynowicz   

Forced Mobility of EU Citizens is a critical evaluation from an empirical perspective of existing practices of the use of transnational criminal justice instruments within the European Union. Such instruments include the European Arrest Warrant (EAW), prisoner transfer procedures and criminal law-related deportations. The voices and experiences of people transferred across internal borders of the European Union are brought to the fore in this book. Another area explored is the scope and value of EU citizenship rights in light of cooperation not just between judicial authorities of EU Member States, but criminal justice systems in general, including penitentiary institutions. The novelty of the book lays not only in the fact that it brings to the fore a topic that so far has been under-researched, but it also brings together academics and studies from different parts of Europe – from the west (i.e. the expelling countries) and the east (the receiving countries, with a special focus on two of the jurisdictions most affected by these processes – Poland and Romania). It therefore exposes processes that have so far been hidden, shows the links between sending and receiving countries, and elaborates on the harms caused by those instruments and the very idea of ‘justice’ behind them. This book also introduces a new element to deportation studies as it links to them the institution of the European Arrest Warrant and EU law transfers targeting prisoners and sentenced individuals. With a combination of legal, criminological, and sociological perspectives, this book will be of great interest to scholars and students with an interest in EU law, criminal law, transnational criminal justice, migration/immigration, and citizenship.

New York: London: Routledge, 2024. 227p.

Used book-may contain mark-up

By Alan M. Dershowtiz

Justice Oliver Wendell Holmes once observed that "hard cases make bad law." In Taking Liberties, Harvard law professor Alan Dershowitz writes for the layperson about the hard cases and thorny issues that come before our courts today. Should parents be compelled to testify against their own children? Can your employer force you to submit to a random drug test, even if you never have used drugs? Does the government have the right to find out what home videos you have rented? Should an otherwise qualified nominee to the Supreme Court be rejected solely on grounds of his ideology? Where is the line between vigilantism and self-defense? Does the jury have the final say on matters of truth? How should the victims of AIDS be treated in the workplace and in the schools? To scores of questions like these, each arising from the issues of an actual case or controversy, Dershowitz offers incisive and often surprising an- swers. Outspoken, thought-provoking, Taking Liberties is a book to savor and enjoy--a rare opportunity to watch one of America's foremost legal minds at work.

New York. Contemporary Books. 1988. 348p.

By Nancy J. King; Fred L. Cheesman II; Brian J. Ostrom

The purpose of the study discussed in this report was to provide empirical information about habeas corpus cases filed by state prisoners in U.S. District Courts under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This report first provides an overview of federal habeas review and the current statutory scheme before discussing the five categories of empirical information about habeas review: time before filing; claims for relief; operation of defenses; time for processing; and merits review and case outcomes. The report is divided into five sections, with the introduction providing the federal habeas review and research review, as well as a discussion of the study design and methodology. The second section provides descriptive findings of: petitioner demographics; state proceedings; representation of petitioner in federal court; timing of petitions; type of proceedings challenged; claims raised; intermediate orders; litigation steps; processing time; non-merits dispositions; merits dispositions; and appeals. The third section provides comparative findings, of post- and pre-AEDPA studies, capital and non-capital cases. The fourth section provides explanatory findings of capital and non-capital cases, and discusses factors associated with likelihood of relief in capital cases. And the fifth section consists of Appendices, providing statistical tables, cases, writs granted, and lists of districts and variables collected.

Nashville: Vanderbilt University, Law School, 2023. 127p.

By Marea Beeman, Kellianne Elliott, Rosalie Joy, Elizabeth Allen, and Michael Mrozinski

  In the United States of America, individuals accused of crime who cannot afford to hire a lawyer have a constitutional right to have one appointed to represent them at government expense. In 2021, the National Legal Aid & Defender Association (NLADA) set out to investigate the national landscape of laws and local practices relating to fees that are assessed upon individuals when they exercise their constitutional right to counsel. Findings from the resulting eighteen-month investigation show that in the overwhelming majority of states, the Sixth Amendment right to counsel does not mean that counsel for those who cannot afford it is provided free of charge. In 42 states, plus the District of Columbia, laws authorize courts to impose public defense system fees – both upfront application or administrative fees, and fees recouping the cost of counsel – on people who are represented by court-appointed attorneys. NLADA’s review finds that these fees do more harm than good. For instance, in no state with available data does collection of public defense recoupment fees amount to more than five percent of assessed recoupment costs. Yet individuals assessed these fees who cannot pay them down are essentially sentenced to years of court entanglement and consequences that can sharply limit efforts to move forward in life. Unpaid court debt, including public defense system fees, can result in years of, among other things, inability to secure reliable housing and employment, tarnished credit, and risk of arrest or incarceration for failure to pay. …

 Washington DC:  National Legal Aid & Defender Association, 2022. 136p.

By Todd Foglesong, Ron Levi, et. al.

This report analyzes recent data on homicide and robbery to understand whether there is a relationship between violent crime and “progressive prosecution.” We pooled data on recorded crime from 65 major cities, conducted a statistical regression of trends in violent crime as well as larceny in two dozen cities, and compared the incidence of homicide before and after the election of progressive prosecutors in Philadelphia, Chicago, and Los Angeles, cities where we are conducting on-going research on changes in criminal justice. We also compared trends in recorded crime across all counties in Florida and California since 2015. We find no evidence to support the claim that progressive prosecutors were responsible for the increase in homicide during the pandemic or before it. We recommend that further statistical analyses of data on violent crime be supplemented by qualitative research and direct evidence about the practices of prosecutors in cities that recorded divergent patterns in homicide.

Toronto: University of Toronto, Munk School of Global Affairs and Public Policy, 2022. 48p.

By Kristina Gray, Rachael Finn, Joanna Gent & Kezia Huttlestone

A pre-sentence report is advice given to the court following the facts of the case, expert risks and needs assessments, including an independent sentencing proposal and additional relevant information. They must be as objective as possible and exist to assist the judiciary with sentencing.

The number of pre-sentence reports written in England and Wales has decreased in recent years. This was an area of concern in the 2020 white paper, A Smarter Approach to Sentencing, which stated that “The purpose of a pre-sentence report (PSR) is to facilitate the administration of justice, and to reduce an offender’s likelihood of reoffending and to protect the public and/or victim(s) from further harm. A PSR does this by assisting the court to determine the most suitable method of sentencing an offender (Criminal Justice Act 2003, section 158)”.

London: UK Ministry of Justice 2023. 54p.

By The Scottish Government,  HM Inspectorate of Prosecution in Scotland

he aim of this review was to assess the operation and impact of diversion from prosecution in Scotland. We sought to provide an overview of diversion practice from a policing, prosecution and justice social work perspective, highlight what is working well and explore any barriers to the more effective use of diversion. The review was carried out by HM Inspectorate of Constabulary in Scotland, HM Inspectorate of Prosecution in Scotland, the Care Inspectorate and HM Inspectorate of Prisons for Scotland. Given that effective partnership working is essential to the delivery of diversion, we considered that a similarly collaborative approach was required for its scrutiny.

The number of diversion from prosecution cases commenced rose by 12% between 2019-20 and 2020-21, the highest level in the last seven years. This rise is likely linked to changes in prosecution policy in 2019. Prosecution policy now states that diversion should be considered for all people where there is an identifiable need that has contributed to their offending and which can best be met through diversion. For children under the age of 18 in particular, there is a presumption that an alternative to prosecution will be in the public interest. More broadly, there has been a shift in public policy in recent years, with a greater focus on community justice and early intervention to address the underlying causes of offending.

We welcome this shift in focus as well as plans to optimise the use of diversion even further. Many accused persons require support for mental health, substance use or other issues and diversion from prosecution offers an opportunity for that support to be provided swiftly. Early intervention can help address the underlying causes of offending, avoid the person being drawn further into the criminal justice system and reduce or prevent further offending, to the benefit of the person, victims and communities. We therefore welcome the efforts made by a range of agencies involved in diversion at a national and local level to encourage greater use of diversion, to work in partnership and to deliver effective interventions.

Glasgow: HM Inspectorate of Prosecution in Scotland , 2023. 78p.

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