By Meredith Rossner and Helen Taylor

Restorative justice is an idea and a practice that has had a significant impact on criminology over the past four decades and has proliferated throughout the criminal justice system. Yet from the beginning of this movement, there have been worries that the mainstreaming of restorative justice will lead to its dilution, or even corruption, and undermine its transformative potential. Developing alongside the growing institutionalization of restorative justice has been a transformative justice movement that has arisen from larger movements for racial and gender justice, drawing on similar foundational values to restorative justice. This review interrogates the relationship between restorative and transformative justice by examining a flourishing of ideas and experiments at the margins of the restorative justice movement in three key areas—responses to racial injustice, sexual violence, and environmental harm—and finds that restorative justice has the capacity to work at multiple levels to respond to harm, transform relationships, and prevent future injustices.

Annual Review of Criminology, Volume 7, Page 357 - 381

By Valerie Jenness and Alexis Rowland

A growing body of research reveals that transgender people are disproportionately in contact with the criminal legal system, wherein they experience considerable discrimination, violence, and other harms. To better understand transgender people's involvement in this system, this article synthesizes research from criminology, transgender studies, and related fields as well as empirical findings produced outside of academe, to conceptualize a “transgender criminal legal system nexus.” This article examines historical and contemporary criminalization of transgender people; differential system contact and attendant experiences associated with police contact, judicial decision-making, and incarceration; and pathways to system involvement for transgender people. The analytic focus is on cultural logics related to institutionalized conceptualizations of gender, discriminatory people-processing in various domains of the criminal legal system, and institutionally produced disparities for transgender people involved in the criminal legal system, especially transgender women of color. The article concludes with a discussion of directions for future research, including a focus on administrative violence, organizational sorting, intersectionality, and measurement challenges.

Annual Review of Criminology, Volume 7, Page 283 - 309

By Hedwig Lee

I describe how cultural and structural racism operate the entire contemporary American criminal justice system via five features: devaluation of certain human lives, ubiquitous adaptation, networked structure, perceived neutrality, and temporal amnesia. I draw from specific historical and contemporary examples in policing, courts, and corrections to further emphasize the foundational nature of racism and its role in shaping racial/ethnic inequities not just in relationship to criminal justice outcomes but also in relationship to health, economic, and social well-being.

Annual Review of Criminology, Volume 7, Page 233 - 255

By Rainer Forst

Over the past 15 years, Rainer Forst has developed a fundamental research programme within the tradition of Frankfurt School Critical Theory. The core of this programme is a moral account of the basic right of justification that humans owe to one another as rational beings. This account is put to work by Forst in articulating - both historically and philosophically - the contexts and form of justice and of toleration. The result is a powerful theoretical framework within which to address issues such as transnational justice and multicultural toleration. In this volume, Forst sets out his ideas in an extended essay, which is responded to be influential interlocutors including: Andrea Sangiovanni, Amy Allen, Kevin Olson, Anthony Laden, Eva Erman and Simon Caney. The volume concludes with Forst's response to his interlocutors.

London: Bloomsbury Academic,  2014.  249p.

By Harry Annison, Lol Burke, Nicola Carr, Matthew Millings, Gwen Robinson, Eleanor Surridge

This paper provides insights into the predominant styles of political reasoning in England and Wales that inform penal policy reform. It does so in relation to a particular development that constitutes a dramatic, perhaps even unique, wholesale reversal of a previously introduced market-based criminal justice delivery model. This is the ‘unification’ of probation services in England and Wales, which unwound the consequential privatization reforms introduced less than a decade earlier. This paper draws on in-depth interviews with senior policy makers to present a narrative reconstruction of the unification of probation services in England and Wales. Analogies with desistance literature are drawn upon in order to encapsulate the tensions posed for policy makers as they sought to enact this penal policy reform.

United Kingdom, British Journal of Criminology. Oct 2023, 18pg

By Sarah Waite

This article examines women’s experiences of moving from a closed to an open prison in England. Transition to an open prison is often viewed in a positive, reformist light and although androcentric auto-ethnographical work has demonstrated challenges associated with this pivot when serving a long-term sentence, much less is known about the experiences of women. Using interview discussions, this article draws upon the concept of transcarceral habitus to examine experiences of transfer and adaptation to the open prison within the broader context of the lives of criminalised women. By extending our understanding of the women’s open prison as a site of punishment and recognising the connections and pluralities of women’s carceral experiences, this article seeks to disrupt unhelpful binaries that legitimise the incarceration of women and the open prison estate.

United Kingdom, Howard Journal of Crime and Criminal Justice. Oct. 2023, 16pg

By Heather Harris, with research support from Thomas Sloan

Adopting untested policies helped California courts resolve criminal charges safely amid a public health crisis. Of the main policies, only remote hearings have endured—and their future is uncertain. Assembly Bill 199 allows California courts to conduct most criminal hearings remotely only through 2023.

This report chronicles how the COVID-19 pandemic affected the courts in 2020, describes policy responses, and assesses the impact of remote hearing policies on conviction and sentencing outcomes within six months of arrest.

Pandemic conditions challenged the courts’ capacity to resolve cases. An estimated 55,000 criminal cases that would have completed within six months remained unresolved at the end of 2020.→

Courts acted swiftly to adapt to pandemic conditions. Three main strategies included modifying pretrial release to reduce jail populations, permitting remote hearings, and extending case timelines.→

Uneven adoption of policies, coupled with geographic differences in where people live, meant that Black and Latino defendants had greater potential than people of other races to experience pandemic policies.→

Remote hearing policies reinforced pandemic trends for lower conviction rates, but counteracted trends in sentencing. When remote hearing policies were in place, rates of conviction within six months of arrest fell, with outcomes for white, Latino, and Black people driving this result. Misdemeanor convictions were less likely to lead to jail and more likely to receive noncustodial sentences such as probation and money sanctions, mainly for white, Latino, and Black people. Felony convictions were less likely to result in prison and more likely to lead to jail, and outcomes for Black people dominated this result.→

Remote hearing policies contributed to racial differences in criminal case outcomes. Inequity in conviction and jail sentence rates narrowed between white and Latino defendants and between white and Black defendants. By contrast, racial inequity widened in the likelihood of being sentenced to money sanctions and probation.→

Arguably, whether a criminal proceeding is conducted virtually or in person should not influence whether a person is convicted or how they are sentenced; yet remote hearing policies have affected both. Before Assembly Bill 199 expires, policymakers will need to determine whether these outcomes are desirable and how to factor them into decisions about whether to allow criminal cases to proceed remotely.

San Francisco: Public Policy Institute of California, 2023.

By Sixth Amendment Center and The Defender Initiative

In 1963, the U.S. Supreme Court declared in Gideon v. Wainwright that it is an “obvious truth” that anyone accused of a crime who cannot afford the cost of a lawyer “cannot be assured a fair trial unless counsel is provided for him.” In the intervening 58 years, the U.S. Supreme Court has clarified that the Sixth Amendment right to counsel means every person who is accused of a crime is entitled to have an attorney provided at government expense to defend him in all federal and state courts whenever that person is facing the potential loss of his liberty and is unable to afford his own attorney. Moreover, the appointed lawyer needs to be more than merely a warm body with a bar card. The attorney must also be effective, the U.S. Supreme Court said again in United States v. Cronic in 1984, subjecting the prosecution’s case to “the crucible of meaningful adversarial testing.” Under Gideon, the Sixth Amendment right to effective counsel is an obligation of the states under the due process clause of the Fourteenth Amendment. The State of Illinois delegates to its county boards and circuit court judges most of its constitutional obligation to ensure the provision of effective assistance of counsel to indigent criminal defendants in the trial courts. Yet the state does not have any oversight structure by which to know whether each county’s indigent defense system has a sufficient number of attorneys with the necessary time, training, and resources to provide effective assistance of counsel at every critical stage of a criminal case for each and every indigent defendant. This is the first of three findings of this report. As explained in chapter I, this report is the result of a statewide evaluation of the provision of the right to counsel in adult criminal cases at the trial level, conducted at the request of the Illinois Supreme Court. Through data collection and analysis, interviews with criminal justice stakeholders, and courtroom observations, the evaluation assessed indigent defense services against national standards and Sixth Amendment caselaw that establish the hallmarks of a structurally sound indigent representation system, which include the early appointment of qualified and trained attorneys, who have sufficient time and resources to provide effective representation under independent supervision. The absence of any of these factors can show that a system is presumptively providing ineffective assistance of counsel. This evaluation focuses closely on the practices of nine counties – Champaign, Cook, DuPage, Gallatin, Hardin, LaSalle, Mercer, Schuyler, and Stephenson – which taken together illustrate the wide variations among Illinois county governments and courts in their efforts to fulfill the Sixth Amendment right to counsel. The State of Illinois delegates to its counties and trial court judges the responsibility for providing and overseeing attorneys to effectively represent indigent defendants, and it delegates to its counties nearly all of the responsibility for funding the right to counsel of indigent defendants. When a state chooses to delegate its federal constitutional responsibilities to its local governments and courts, the state must guarantee not only that these local bodies are capable of providing effective representation but also that they are in fact doing so. Yet Illinois is one of just seven states that do not have any state commission, state agency, or state officer with oversight of any aspect of trial-level indigent representation services in adult criminal cases. Chapter II details the framework that Illinois has established for its county-level criminal justice systems and how that framework has been implemented in the nine sample counties. The indigent defense systems in the nine representative counties of this evaluation vary greatly. With 102 counties in the state, it is likely that any or all of those counties present even greater variations in their indigent defense systems. Without oversight, the State of Illinois cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all, and the State of Illinois cannot know how much the provision of indigent representation should cost nor how to provide it effectively in all 102 counties. Instead, policy decisions about indigent defense systems are left to anecdote, speculation, and potentially even bias. Chapters III through VII comprise the substantive assessment, which relate the basis of our second and third findings: The state’s limited framework for how county boards and circuit court judges are to establish and implement the indigent defense system in each county institutionalizes political and judicial interference with the appointed attorneys’ independence to act in the stated legal interests of their indigent clients. This lack of independence causes systemic conflicts of interest that interfere with the provision of effective assistance of counsel. 3. The indigent defense systems established in Illinois’ counties lack oversight and accountability that can result in a constructive denial of the right to counsel to at least some indigent defendants, and in some instances can result in the actual denial of the right to counsel to at least some indigent defendants. An indigent defense system’s effectiveness must be measured by the representation it provides to its appointed clients. The U.S. Supreme Court explained in Cronic that “[t]he right to the effective assistance of counsel” means that the defense must put the prosecution’s case through the “crucible of meaningful adversarial testing.” For this to occur, U.S. Supreme Court case law provides that an indigent person must be represented by a qualified and trained attorney, who is appointed early in the case, and who has sufficient time and resources to provide effective representation under independent supervision.

Boston: Sixth Amendment Center, 2021. 181p.

By Russell M. Gold and Kay L. Levine

For decades police and prosecutors have controlled the public narrative about criminal law—littering the news landscape with salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations— all of which inflict severe harm on defendants and their loved ones. But defenders rarely show the public the world they inhabit.

That approach hasn’t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them. This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system. It builds on the social media literature to analyze how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy. As a few existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions. Defenders’ strategic use of social media won’t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades.

Gold, Russell M. and Levine, Kay L., The Public Voice of the Defender (July 14, 2023). 75 Alabama Law Review (Forthcoming), U of Alabama Legal Studies Research Paper #4416723, Emory Legal Studies Research Paper No. 23-4,

By Brandon L. Garrett and Gregory Mitchell

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone.

These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

121 Mich. L. Rev. 707 (2023).

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 SE Duhart Clarke

The right to an attorney in criminal cases is a constitutional right covered under the Sixth and Fourteenth Amendments of the United States Constitution and is considered fundamental to a fair trial. Over two-thirds of criminal court defendants in the United States are unable to afford their own counsel and thus have an attorney given to them by the court (i.e., indigent defendants). Many legal scholars have debated the effectiveness of indigent defense counsel compared to privately retained counsel. However, in the absence of synthesized data on outcomes for indigent defendants, legal scholars commonly cite the pragmatic and theoretical mechanisms for publicly funded defenders’ limitations or strengths to support their arguments about the effectiveness of indigent defense counsel. When empirical evidence on outcomes for indigent defendants is used to support an argument, the research cited is often limited to studies conducted in specific jurisdictions on a specific step in court case processing. Consequently, our overall understanding of outcomes experienced by indigent defendants is limited and disjointed, underscoring the need for a systematic evaluation of the current empirical literature. The goal of the study in this dissertation was to conduct a systematic literature review and meta-analysis on outcomes for defendants with public defenders, defendants with assigned counsel, and defendants with retained attorneys to better understand what (if any) discrepancies exist in criminal justice-related outcomes as a function of indigent defense status. Specifically, this study examined the current empirical literature on pretrial outcomes, case outcomes, sentencing outcomes, and post-case outcomes for indigent defendants compared to defendants with private/retained attorneys and/or public defenders compared to assigned counsel.

 Raleigh NC: North Carolina State University, 2021.112p.

Edited by Francesca Galli, Anne Weyembergh

Criminal law has undergone tremendous changes in the past decades. A number of new trends have been challenging the traditional features of “modern criminal law” as founded by Cesare Beccaria in the 18th century and developed thereafter. Some authors describe a process of “disengagement” from the fundamental principles upon which “modern criminal law” is based. They point to its corollary, the rise of the ideology of pragmatism, which, in the name of efficiency, is gradually transforming the whole philosophy underpinning the criminal justice system. Some of them thus refer to the “post-modernisation” of criminal law . Among the new trends affecting criminal justice systems, one of them has attracted considerable academic attention in the last few years. This is the so-called “Europeanisation process”, which is the result of the growing intervention of the EU in the area of criminal law. Criminal law and criminal procedure are deeply rooted in national sovereignty and had therefore been developed at national level only. However, since the entry into force of the Amsterdam Treaty, the EU has taken a lead in the approximation of criminal legislation and has developed new and closer cooperation mechanisms based on principles such as the mutual recognition of decisions in criminal matters . With the entry into force of the Lisbon Treaty, the EU’s scope for intervention in this field has been considerably broadened and its supranational nature strengthened, thereby challenging the narrow and profound link between criminal law and the nation state even more. Another new trend which criminal law and other legal disciplines are facing is the increasingly blurred dividing lines between legal categories. Several authors have highlighted the existence of a general blur . Various dimensions of this blur have been identified in legal literature . As will be highlighted by other authors in this book , the verb and the noun “blur” have rather negative connotations. As a verb, it is defined as the action of making or becoming vague or less distinct, of making less clear, of smearing or smudging. As a noun, “blur” means vague, hazy or indistinct . Law and lawyers are not at ease when faced with vagueness and lack of clarity. This is especially true for criminal law and criminal lawyers, as is demonstrated by the well-known principle of legality in its substantive dimension. As will be underlined by some authors in the following contributions, these blurred dividing lines can, however, also have a positive impact or at least give rise to a multitude of consequences that cannot all be categorised as negative. This is clear, for instance, when one thinks of the application of criminal procedural guarantees by administrative law or of the so-called Engel line of case law of the European Court of Human Rights (ECtHR). A growing blur can be observed between criminal and administrative law. Both fields of law have received numerous different definitions . The dividing line between them has never been clear . Their respective scope and/or the criteria dividing their respective jurisdiction can vary depending on the country concerned and on the “approach” followed. The criminal nature of proceedings and of penalties can indeed be considered in a formal or substantial manner. As it is well known in its above-mentioned Engel ruling, the ECtHR follows the second approach when considering whether national proceedings constitute a criminal charge in the sense of Article 6 ECHR . The blur between criminal and administrative law has different manifestations and has a wide variety of origins. The scope of both administrative and criminal law tends to expand. Criminal law is being introduced in fields in which the legislator traditionally adopted administrative measures and vice versa. Fields such as terrorism or trafficking in human beings, which have traditionally been governed by criminal law, are increasingly sprinkled with administrative measures or are becoming fields where administrative actors are increasingly involved. In some domains, a double enforcement/sanctioning system (administrative/criminal) has developed. However, by themselves, these trends do not necessarily result in a blur. A blur occurs when the scope of intervention and the division of functions between both kinds of measures, systems, actors or frameworks are not clear enough; when the two sets of applicable rules become indistinct and/or when there is cross-contamination whereby the interactions between both types of measures, actors or frameworks is not organised and overlaps are neither avoided nor regulated. So, in order to identify a blur, the following questions are of key importance: Are there clear criteria setting out when one or the other actor/framework, or both, should be involved? Are the rules applicable to one or the other framework/actor clearly defined and is there some kind of approximation between them? Is a system of double administrative and penal repression foreseen? Reflecting on the reasons for the growing blur between administrative and criminal law is quite interesting. As will be highlighted in the different contributions to this book, various factors arise, including the advantages of each of the different regimes , the need to find an effective way of dealing with certain kinds of crime that are becoming ever more complex, the need to develop a multidisciplinary/holistic approach towards some crimes, particularly trafficking in human beings, and the will and/or need to prevent crime, especially terrorism, etc. The purpose of this book is to study the combination of both of the abovementioned trends affecting criminal justice systems. The blur between administrative and criminal law has, of course, been around for a while and exists independently of the European Union. It is, for instance, embodied in the blurred line between measures belonging to punitive administrative law and criminal law measures . Up until now, this trend has mainly been analysed at the national level. However, it is interesting to reflect on the interaction between the Europeanisation of criminal law on the one hand and the increasingly blurred line between administrative and criminal law on the other hand. In this regard, the main question that arises is whether and to what extent the EU contributes to the blurred line; if it tries to limit it, control it and/or organise it.

Bruxelles, Editions de l’Université de Bruxelles, 2014. 259p.

Edited by Douglas Edlin

Are judges supposed to be objective? Citizens, scholars, and legal professionals commonly assume that subjectivity and objectivity are opposites, with the corollary that subjectivity is a vice and objectivity is a virtue. These assumptions underlie passionate debates over adherence to original intent and judicial activism.

In Common Law Judging, Douglas Edlin challenges these widely held assumptions by reorienting the entire discussion. Rather than analyze judging in terms of objectivity and truth, he argues that we should instead approach the role of a judge's individual perspective in terms of intersubjectivity and validity. Drawing upon Kantian aesthetic theory as well as case law, legal theory, and constitutional theory, Edlin develops a new conceptual framework for the respective roles of the individual judge and of the judiciary as an institution, as well as the relationship between them, as integral parts of the broader legal and political community. Specifically, Edlin situates a judge's subjective responses within a form of legal reasoning and reflective judgment that must be communicated to different audiences.

Edlin concludes that the individual values and perspectives of judges are indispensable both to their judgments in specific cases and to the independence of the courts. According to the common law tradition, judicial subjectivity is a virtue, not a vice.

Ann Arbor: University of Michigan Press, 2016. 281p.

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.

Edited by Chris Cunneen, Antje Deckert, Amanda Porter, Juan Tauri and Robert Webb

The Routledge International Handbook on Decolonizing Justice focuses on the growing worldwide movement aimed at decolonizing state policies and practices, and various disciplinary knowledges including criminology, social work and law. The collection of original chapters brings together cutting-edge, politically engaged work from a diverse group of writers who take as a starting point an analysis founded in a decolonizing, decolonial and/or Indigenous standpoint. Centering the perspectives of Black, First Nations and other racialized and minoritized peoples, the book makes an internationally significant contribution to the literature.

The chapters include analyses of specific decolonization policies and interventions instigated by communities to enhance jurisdictional self-determination; theoretical approaches to decolonization; the importance of research and research ethics as a key foundation of the decolonization process; crucial contemporary issues including deaths in custody, state crime, reparations, and transitional justice; and critical analysis of key institutions of control, including police, courts, corrections, child protection systems and other forms of carcerality.

The handbook is divided into five sections which reflect the breadth of the decolonizing literature:

• Why decolonization? From the personal to the global

• State terror and violence

• Abolishing the carceral

• Transforming and decolonizing justice

• Disrupting epistemic violence

This book offers a comprehensive and timely resource for activists, students, academics, and those with an interest in Indigenous studies, decolonial and post-colonial studies, criminal legal institutions and criminology. It provides critical commentary and analyses of the major issues for enhancing social justice internationally.

London; New York: Routledge, 571p.

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.