Edited by Diane Kirkby

This collection brings methods and questions from humanities, law and social sciences disciplines to examine different instances of lawmaking. Contributors explore the problematic of past law in present historical analysis across indigenous Australia and New Zealand, from post-Franco Spain to current international law and maritime regulation, from settler colonial humanitarian debates to efforts to end cruelty to children and animals. They highlight problems both national and international in their implication. From different disciplines and theoretical positions, they illustrate the diverse and complex study of law’s history.

Canberra: Australian National University, 2011. 236p.

Edited by Gunnar Duttge and Won Sang Lee

The information and risk society poses a new challenge for the law in all its fragments. Modern media communication and technologies increase people’s prosperity while stating new risks with not uncommonly devastating crisis-potential: The banking crisis, the safety net for the euro zone and the nuclear incident in Fukushima are only the latest forms of those specific modern common dangers which the law is facing – in many cases due to it’s domestically limited validity - not or not sufficiently prepared. In order to promote the international dialog within the jurisprudence there was a conference in October 2010 held by the faculty of law of the Georg-August-Universität, supported by the chair of GAU, together with the faculty of Seoul National University School of Law discussing main issues of law in a modern information and risk society. With this volume the results of this convention shall be made accessible to everybody interested. Thereby it illustrates not only the variety of new issues and aspects, but also reveals that this can only be the beginning on the way to a deeper understanding of the complex correlations. Volume 10 in the series „Göttinger Juristische Schriften“ The series is published by the Faculty of Law of the Georg-August-Universität Göttingen und makes events at the faculty publicly available.

The information and risk society poses a new challenge for the law in all its fragments. Modern media communication and technologies increase people’s prosperity while stating new risks with not uncommonly devastating crisis-potential: The banking crisis, the safety net for the euro zone and the nuclear incident in Fukushima are only the latest forms of those specific modern common dangers which the law is facing – in many cases due to it’s domestically limited validity - not or not sufficiently prepared. In order to promote the international dialog within the jurisprudence there was a conference in October 2010 held by the faculty of law of the Georg-August-Universität, supported by the chair of GAU, together with the faculty of Seoul National University School of Law discussing main issues of law in a modern information and risk society. With this volume the results of this convention shall be made accessible to everybody interested. Thereby it illustrates not only the variety of new issues and aspects, but also reveals that this can only be the beginning on the way to a deeper understanding of the complex correlations. Volume 10 in the series „Göttinger Juristische Schriften“ The series is published by the Faculty of Law of the Georg-August-Universität Göttingen und makes events at the faculty publicly available.

Universitätsverlag Göttingen, 2011. 181p.

By Michael J. Z. Mannheimer

Police are required to obey the law. While that seems obvious, courts have lost track of that requirement due to misinterpreting the two constitutional provisions governing police conduct: the Fourth and Fourteenth Amendments. The Fourth Amendment forbids ""unreasonable searches and seizures"" and is the source of most constitutional constraints on policing. Although that provision technically applies only to the federal government, the Fourteenth Amendment, ratified in the wake of the Civil War, has been deemed to apply the Fourth Amendment to the States. This book contends that the courts’ misinterpretation of these provisions has led them to hold federal and state law enforcement mistakenly to the same constitutional standards. The Fourth Amendment was originally understood as a federalism, or “states’ rights,” provision that, in effect, required federal agents to adhere to state law when searching or seizing. Thus, applying the same constraint to the States is impossible. Instead, the Fourteenth Amendment was originally understood in part as requiring that state officials (1) adhere to state law, (2) not discriminate, and (3) not be granted excessive discretion by legislators. These principles should guide judicial review of modern policing. Instead, constitutional constraints on policing are too strict and too forgiving at the same time. In this book, Michael J.Z. Mannheimer calls for a reimagination of what modern policing could look like based on the original understandings of the Fourth and Fourteenth Amendments.

Ann Arbor, MI: University of Michigan Press, 2023. 431p.

ByNational Center for State Courts

A mindfulness program offered through a free, mobile app and weekly webinar meetings showed promise for increasing mindfulness and well-being and reducing stress among a convenience sample of individuals who work in and with courts. Because of the high attrition rates, common to these types of studies, the findings are promising but should be interpreted with caution. Additional research to build the evidence on mindfulness programs for the court community is encouraged. Among those who participated, feedback about the program was largely positive. Participants found the mobile app userfriendly and engaging, and the half-hour weekly webinars with a mindfulness instructor useful and engaging. Results suggest that building a judicial education mindfulness program around a mobile app is a cost-effective approach that is flexible to implement and helps some in the court community enhance their mindfulness and well-being and reduce their stress. Future mindfulness programs should include evaluations to further our knowledge on which features of the programs are of greatest benefit to participants and whether the programs are more likely to affect well-being and stress in distinct subsets of the court community

Williamsburg, VA: National Center for State Courts, 2023. 7p.

By Jaeok Kim, Quinn Hood, and Elliot Connors

Over the last decade, thousands of New Yorkers have been held in jail pretrial, largely because they could not afford to pay bail. In April 2019, New York legislators passed bail reform bills updating a set of laws that had remained largely untouched since 1971. The laws, which went into effect on January 1, 2020, made release before trial automatic for most people accused of misdemeanors and nonviolent felonies. In cases that remained eligible for bail—including violent felonies and some domestic violence- or sex-related charges—the law mandated that the judge consider a person’s ability to pay bail. However, an organized, immediate backlash by the opponents of bail reform led the New York legislature to amend the law in April 2020, only three months after the original reform went into effect. Meanwhile, in March 2020, New York became an epicenter of the COVID-19 pandemic. The pandemic changed the way the criminal legal system operated. Court hearings, including arraignments, became virtual. Jury trials were cancelled. And, understanding that jails could become COVID-19 hotspots and drive outbreaks outside of the jails, some court actors across the state began working to reduce jail populations. This report by the Vera Institute of Justice (Vera) is the first to examine the impact of April 2019’s bail reform in New York State by exploring trends in jail populations and admissions in New York City and a sample of counties

New York: Vera Institute of Justice, 2021. 44p.

By Brad Lander

The purpose of bail is to ensure that a person who is arrested returns to court for trial. However, in practice, the impact of bail has been to detain tens of thousands of New Yorkers, presumed innocent, before trial and cost low-income families tens of millions of dollars every year. To address these concerns, in April 2019 the New York State Legislature passed sweeping reforms to state bail laws. The guiding principle was that no one should be jailed because they are too poor to pay bail. The law prohibited bail-setting for most misdemeanor and non-violent felony charges, required judges to consider a person’s ability to pay before setting bail, and required that defendants have at least three options for making bail, including less onerous options. In the ramp-up to implementation of bail reform on January 1, 2020, the jail population dropped quickly, falling from about 7,100 on November 1, 2019 to 5,800 on January 1, 2020 and to 5,500 on February 1, 2020. When COVID-19 hit the city in March 2020, the jail population fell further, temporarily falling below 4,000 as arrests dropped and efforts were made to reduce the incarcerated population, including those at greater risk of severe illness, during the pandemic

New York: Office of the City Comptroller, Bureau of Budget and Bureau of Policy and Research 2022. 17p.

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

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

Highlights:

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

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

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

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

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

By National Center for State Courts

In August 2020, the National Center for State Courts launched the Just Horizons initiative to explore the changing needs of the judicial system and those who use it. The initiative was conceived in 2019 in preparation for the Center’s celebration of its 50th anniversary in 2021. At that time, we had no idea that the initiative would be launched amid a global pandemic and intense social and political unrest at home and abroad. These events only crystallized the importance of our effort to better anticipate and understand emerging social, technological, and environmental trends that also could disrupt the meaningful delivery of justice by our nation’s courts. Courts play a vital role in our American system of democracy. They safeguard the rule of law, ensuring a level playing field for all who seek assistance based on the laws passed by legislatures and established in the Constitution. This traditional role of courts, however, is under threat in these volatile and uncertain times of rapid social and technological change. It is up to those of us who work in and with courts to ensure the long-term future viability of our courts. This report offers a path forward on that journey. The Just Horizons initiative, led by a Council of court leaders and scholars, explored driving forces of change in society that could impact the work of courts in the future, developed scenarios of possible futures based on the drivers of change, and identified key areas of vulnerability we should bolster now to ensure a resilient and robust functioning court system no matter how the future unfolds. Tackling these court system vulnerabilities requires a concerted and sustained effort by all who work in and use the courts. The report’s suggested strategies for moving forward are illustrative of actions that can be taken at the individual, community, and national level. We recognize that state courts vary significantly in terms of their size, resources, governance structures, and specific needs and challenges. Thus, the strategies offer a starting point to implement as is, customize, or generate additional ideas for readying our courts for the future. We need to act now. If the events of the last two years have taught us anything, it is that courts can be innovative and forward-thinking. Our challenge is to embrace that lesson and build on it rather than slipping back into complacency. Working together, we can ensure that courts continue to light the path of those seeking justice well into the future.

Williamsburg, VA: National Center for State Courts, 2022. 68p.

By Shamena Anwar Shawn Bushway, John Engberg

Roughly half of U.S. counties do not provide defense counsel at bail hearings, and few studies have documented the potential impacts of legal representation at this stage. This paper presents the results from a field experiment in Allegheny County, Pennsylvania, that provided a public defender at a defendant’s initial bail hearing. The presence of a public defender decreased the use of monetary bail and pretrial detention without increasing failure to appear rates at the preliminary hearing. The intervention did, however, result in a short-term increase in rearrests on theft charges, although a theft incident would have to be at least 8.5 times as costly as a day in detention for jurisdictions to find this tradeoff undesirable.

Sci. Adv. 9, eade3909 (2023) 5 May 2023

By Mario Salas and Angela Ciolfi

Across the country, millions of people have lost their licenses simply because they are too poor to pay, effectively depriving them of reliable, lawful transportation necessary to get to and from work, take children to school, keep medical appointments, care for ill or disabled family members, or, paradoxically, to meet their financial obligations to the courts. State laws suspending or revoking driver’s licenses to punish failure to pay court costs and fines are ubiquitous, despite the growing consensus that this kind of policy is unfair and counterproductive. Fortythree states and the District of Columbia use driver’s license suspension to coerce payment of government debts arising out of traffic or criminal convictions. Most state statutes contain no safeguards to distinguish between people who intentionally refuse to pay and those who default due to poverty, punishing both groups equally harshly as if they were equally blameworthy. License-for-payment systems punish people—not for any crime or traffic violation, but for unpaid debts. Typically, when a state court finds a person guilty of a crime or traffic violation, it orders the person to pay a fine or other penalty along with other administrative court costs and fees. If the person does not pay on time, the court or motor vehicle agency can—and in some states, must—punish the person by suspending his or her driver’s license until the person pays in full or makes other payment arrangements with the court. By cutting people off from jobs, license-for-payment systems create a self-defeating vicious cycle. A state suspends the license even though a person cannot afford to pay, which then makes the person less likely to pay once he or she cannot drive legally to work. The person now faces an unenviable choice: drive illegally and risk further punishment (including incarceration in some states), or stay home and forgo the needs of his or her family. In this way, license-for-payment systems create conditions akin to modern-day debtor’s prisons. Despite their widespread use, license-for-payment systems are increasingly drawing critical scrutiny from motor vehicle safety professionals, anti-poverty and civil rights advocates, and policymakers. new state- based advocacy campaigns across the country have produced reforms by way of the courts, legislatures, and executive agencies. To provide national context for these efforts, we analyzed license-for-payment systems in all 50 states and the District of Columbia to generate conclusions about the prevalence and uses of license-for-payment.

Charlottesville, VA: Legal Aid Justice Center, 2017. 20p.

By Stephanie Agnew

Across the country, regressive court fines, administrative costs, and filing fees are functioning to penalize people solely for their poverty.

Court costs, fines, and fees (also known as “monetary sanctions”) exist in both the civil and criminal realms of the justice system and are applied in all 50 states. Illinois, specifically, imposes a panoply of these costs in connection with various proceedings and convictions in both civil and criminal courts, with approximately 90 distinct fines or fees on the books today. These racked charges include, among others: “reimbursement” fees to police, prosecutors, and public defenders; probation oversight fees; costs for electronic monitoring bracelets, drug-testing, participation in court-ordered programs; fees for document storage and delivery; and many more. In Illinois, there is no limit to the amount of money that can be sanctioned in a single case.

Chicago: Chicago Appleseed and Chicago Council of Lawyers, 2020. 43p.

By Mary Pattillo and Gabriela Kirk

Economic sociologists have documented the rise of financialization, including credit and debt. In the case of monetary sanctions in the criminal legal system, courts frequently extend payment plans—or “layaway”—as a way for defendants to manage financial court debt and gain their freedom. Using 241 hours of courtroom ethnography and 155 interviews with court actors and people paying their court debt in Illinois, the authors offer a microsociology of financialization that shows how the creditor/debtor relationship commodifies freedom, confuses and suffuses court processes, amplifies control, and expands the financial sector into domains that obligate participation. Layaway freedom represents a case of coercive financialization, or the externally imposed, involuntary, or last-resort entry into financial engagements. The manipulation of money and time achieves disproportionate punishment that is multiplicative, rather than simply additive, all under the guise of routine financial responsibility. The authors discuss implications of these concepts for both economic and criminal-legal sociology

American Journal of Sociology, Volume 126 Number 4 (January 2021): 889–930

By Hayley Hahn

In recent decades, states and municipalities have increasingly relied on court fines and fees to overcome budget shortfalls. Existing literature underscores the varied and adverse impacts of court debt, as well as the disproportionate incidence of such debt on people of color and poor people of all races. Yet, few pieces of scholarship directly link increased imposition of court fines and fees to decreased dependence on traditional progressive taxes. This article aims to fill the gap. Using the Law and Political Economy (LPE) framework, I argue that increased imposition of court debt derives from heightened antitax sentiment and the erosion of the state and local tax bases. In the process, I contend, the tax and court debt systems reflect and exacerbate racial inequality. I conclude by proposing a conceptual framework to abate reliance on court debt, advancing the LPE mission.

Journal of Law and Political Economy, 2(1) 2021.

By Kathleen Powell

This study identifies the correlates of legal financial obligation (LFO) debt repayment among persons sentenced to probation and transferred to a specialized collections unit. Using bivariate tests and logistic regression, results indicate that starting balance amounts, monthly payment amounts, and enforcement actions (capias warrant) are the strongest influences on the likelihood of full debt repayment. These results indicate that some persons will struggle to repay their LFO balances if amounts assessed are in excess of their means, even in an institutional context adopting an individualized, flexible, and non-punitive approach to collections. Policy implications suggest a need for reform at the point of LFO assessment to avoid imposing obligations that are unreasonable to individuals’ ability to repay.

Social Sciences 10: 433., 2021.https://doi.org/10.3390/ socsci10110433

By Aravind Boddupalli and Livia Mucciolo

State and local governments collected $16 billion in fiscal year 2019 from financial penalties imposed on people who had contact with the justice system, according to US Census Bureau data. These penalties included speeding tickets (including those from automated traffic cameras), parking tickets, court-imposed administrative fees, and forfeitures or seizures of property believed by law enforcement officials to be connected to crimes. In total, fines, fees, and forfeitures account for less than 1 percent of total state and local general revenue, but the way they are enforced can create unjust burdens. These financial penalties often disproportionately fall on low-income people of color, particularly Black people (O’Neill, Kennedy, and Harris 2021; Sances and You 2017). In addition, consequences for those unable to pay can be severe (Menendez et al. 2019). Reliance on fines, fees, and forfeitures as a revenue source can also engender conflicts of interest for government officials. For example, states and localities have ramped up speeding ticket enforcement and arrests for various violations in response to budgetary shortfalls and political pressures (Makowsky, Stratmann, and Tabarrok 2019). In this report, we first examine how much states and localities report collecting from fines, fees, and forfeitures, highlighting the states and localities most reliant on them as a revenue source. While the average state and local share of revenue from fines, fees, and forfeitures is relatively small, these shares are larger for some local governments, especially small cities. We then explore how revenue from some fines and fees (we exclude forfeitures from this analysis) are allocated in each of the 50 states, the District of Columbia, and a handful of cities. We specifically focus on speeding tickets as an illustrative example. Overall, we find that in at least 43 states, some portion of speeding ticket revenue is allocated toward a court or law enforcement fund. This finding reveals the potential for conflicts of interest and misaligned fiscal incentives. That is, police officers and judges might levy fines and fees with the intent of funding their respective agencies, as was demonstrated by the 2015 US Department of Justice investigation into Ferguson, Missouri’s police department (US Department of Justice 2015). We additionally find that many states use fines and fees to fund general government services unrelated to cost recovery for the justice system, such as special funds for health care or highway initiatives.

Washington, DC: The Urban Institute, 2022. 39p.

By Carl Lieberman, Elizabeth Luh and Michael Mueller-Smith

Millions in the United States face financial sanctions in the criminal court system each year, totaling over $27 billion in overall criminal debt. In this study, we leverage five distinct natural experiments across multiple states using regression discontinuity designs to evaluate the causal impact of these sanctions. We consider a range of long-term outcomes including employment, recidivism, household expenditures, and other self-reported measures of well-being, measured using a combination of administrative records on earnings and employment, the Criminal Justice Administrative Records System, and household surveys. We find consistent evidence across the range of natural experiments and subgroup analyses of precise null effects on the population, ruling out long-run impacts larger than +/-3.6% on total earnings and +/- 4.7% on total recidivism. These results are inconsistent with theories of criminal debt poverty traps but also do not justify using financial sanctions for local revenue or as a crime control tool.

Unpublished paper, 2023. 54p.

By Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen, and Noah Atchison

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction.

They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue.

The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

This study examines 10 counties across Texas, Florida, and New Mexico, as well as statewide data for those three states. The counties vary in their geographic, economic, political, and ethnic profiles, as well as in their practices for collecting and enforcing fees and fines.

New York: Brennan Center for Justice at New York University School of Law 2019. 68p.

By Hannah Jeffery

This briefing seeks to inform the development of the Specialist Sexual Violence Court (SSVC) pilots and other projects to address the response to sexual violence in the criminal justice system.

It introduces the challenges that the system faces in processing sexual violence cases and the barriers experienced by victim-survivors. Through qualitative interviews with Independent Sexual Violence Advocates, and drawing on the policy landscape and the evidence-base, we outline six considerations for implementing SSVC pilots in the UK.

London: Centre for Justice Innovation, 2022. 13p.

By John W. Wertheimer

This first title in the “Law, Literature & Culture” series uses six legal disputes from the South Carolina courts to illuminate the complex legal history of race in the U.S. South from slavery through Jim Crow. The first two cases—one criminal, one civil—both illuminate the extreme oppressiveness of slavery. The third explores labor relations between newly emancipated Black agricultural workers and white landowners during Reconstruction. The remaining cases investigate three prominent features of the Jim Crow system: segregated schools, racially biased juries, and lynching, respectively. Throughout the century under consideration, South Carolina’s legal system obsessively drew racial lines, always to the detriment of non-white people, but it occasionally provided a public forum within which racial oppression could be challenged. The book emphasizes how dramatically the degree of legal oppressiveness experienced by Black South Carolinians varied during the century under study, based largely on the degree of Black access to political and legal power.

Amherst College Press, 2023.

By Lisa Keen and Suzanne B. Goldberg

n 1992, the voters of Colorado passed a ballot initiative amending the state constitution to prevent the state or any local government from adopting any law or policy that protected a person with a homosexual, lesbian, or bisexual orientation from discrimination. This amendment was immediately challenged in the courts as a denial of equal protection of the laws under the United States Constitution. This litigation ultimately led to a landmark decision by the United States Supreme Court invalidating the Colorado ballot initiative. Suzanne Goldberg, an attorney involved in the case from the beginning on behalf of the Lambda Legal Defense and Education Fund, and Lisa Keen, a journalist who covered the initiative campaign and litigation, tell the story of this case, providing an inside view of this complex and important litigation.

Ann Arbor, MI: University of Michigan Press, 1998.