Edited by Bruce A. Arrigo

A critical look at the relationship between law and psychology.

Albany, NY: State University of New York Press, 2004. 250p.

By R. D. Mackay

Mental condition defences have been used in several high-profile and controversial criminal trials in recent years. indeed, mental abnormality is increasingly an important yet complex source of defence within the criminal trial process. The author offers a detailed critical analysis of those defences within the Criminal Law where the accused relies on some form of mental abnormality as a source of defence. Topics covered include: the defences of automatism, insanity, diminished responsibility, and infanticide; self-induced incapacity; and the doctrine of fault. It also includes a chapter on unfitness to plead, which although not a defence has been included because of its important relationship to mental disorder within the criminal process. Drawing upon a wide variety of legal, psychiatric, and philosophical sources, this is a timely contribution to a controversial and complex topic.

Oxford, UK; New York: Oxford University Press, 1996p. 278p.

Edited by Antony Duff

Five preeminent legal theorists tackle a range of fundamental questions on the nature of the philosophy of criminal law. Their essays explore the extent to which and the ways in which our systems of criminal law can be seen as rational and principled. The essays discuss some of the principles by which, it is often thought, a system of law should be structured, and they ask whether our own systems are genuinely principled or riven by basic contradictions, reflecting deeper political and social conflicts

Cambridge, UK: Cambridge University Press, 1998. 272p.

By Andrew Ashworth

Written by Andrew Ashworth, a well-known expert in the field of criminal law, this book offers a set of essays, old and new, that examine the positive obligations of individuals and the State in matters of criminal law. The centerpiece is a new, extended essay on the criminalization of omissions - examining the duty to act that is imposed upon individuals and organizations by the criminal law, and assessing their moral and social foundations. Alongside this is another new essay on the State's positive obligations to put in place criminal laws to protect certain individual rights. Introducing the volume is Ashworth's much-cited essay on criminalization: Is the Criminal Law a Lost Cause? The book sheds new light on contemporary arguments about the proper boundaries of the criminal law, not least by exploring the justifications for imposing positive duties (reinforced by the criminal law) on individuals and their relation to the positive obligations of the State.

Oxford, UK; Portland, OR: Hart Publishing, 2013. 233p.

Edited by Julian V Roberts and Lucia Zedner

Celebrating the scholarship of Andrew Ashworth, Vinerian Professor of English Law at the University of Oxford, this collection brings together leading international scholars to explore questions of principle and value in criminal law and criminal justice. Internationally renowned for elaborating a body of principles and values that should underpin criminalization, the criminal process, and sentencing, Ashworth's contribution to the field over forty years of scholarship has been immense. Advancing his project of exploring normative issues at the heart of criminal law and criminal justice, the contributors examine the important and fascinating debates in which Ashworth's influence has been greatest.

The essays fall into three distinct but related areas, reflecting Ashworth's primary spheres of influence. Those in Part 1 address the import and role of principles in the development of a just criminal law, with contributions focusing upon core tenets such as the presumption of innocence, fairness, accountability, the principles of criminal liability, and the grounds for defences. Part 2 addresses questions of human rights and due process protections in both domestic and international law. In Part 3 the essays are addressed to core issues in sentencing and punishment: they explore questions of equality, proportionality, adherence to the rule of law, the totality principle (in respect of multiple offences), wrongful acquittals, and unduly lenient sentences. Together they demonstrate how important Ashworth's work has been in shaping how we think about criminal law and criminal justice, and make their own invaluable contribution to contemporary discussions of criminalization and punishment.

Oxford, UK: Oxford University Press, 375p.

By Reid Griffith Fontaine

In American criminal law, if a defendant demonstrates that they lack certain psychological capabilities, they may be excused of blame and punishment for wrongdoing. However, criminal defense law often fails to consider the developmental science of individual differences in ability and functioning that may inform jurisprudential issues of rational capacity and responsibility in criminal law. This book discusses the excusing nature of a range of both traditional and nontraditional criminal law defenses and questions the structure of these defenses based on scientific findings from social and developmental psychology. This book explores how research on individual differences in the development of social perception, judgment, and decision making explain why some youths and adults develop psychological tendencies that favor criminal behavior, and considers how developmental science can guide the understanding of criminal excuses and affirmative defense law.

Cambridge, UK; New York: Cambridge University Press, 2012. 282p.

By R.A. Duff

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication.

Oxford, UK: Oxford University Press, 1997, 448p.

By Jeremy Horder

A number of jurisdictions world-wide have changed or are considering changing their homicide laws. Important changes have now been recommended for England and Wales, and these changes are an important focus in this book, which brings together leading experts from jurisdictions across the globe — England, Wales, the US, Canada, France, Germany, Scotland, Australia, Singapore, and Malaysia — to examine key aspects of the law of homicide. Key areas include the structure of the law of homicide and the meaning of fault elements. For example, the definition of murder, or its equivalent, is very different in France and Germany when compared to the definition used in England and Wales. French law, like the law in a number of US states, ties the definition of murder to the presence or absence of premeditation, unlike the law in England and Wales. Unlike most other jurisdictions, German law makes the killer's motive, such as a sadistic sexual motive, relevant to whether or not he or she committed the worst kind of homicide. England and Wales are in a minority of English-speaking jurisdictions in that these two countries do not employ the concept of 'wicked' recklessness, or of extreme indifference, as a fault element in homicide. Understanding these often subtle differences between the approaches of different jurisdictions to the definition of homicide is an essential aspect of the law reform process, and of legal study and scholarship in criminal law. Every jurisdiction tries to learn from the experience of others.

Oxford, UK: Hart Publishing, 2007. 265p.

By Cody Tuttle

I test for racial disparities in the criminal justice system by analyzing abnormal bunching in the distribution of crack-cocaine amounts used in federal sentencing. I compare cases sentenced before and after the Fair Sentencing Act, a 2010 law that changed the 10-year mandatory minimum threshold for crack-cocaine from 50g to 280g. First, I find that after 2010, there is a sharp increase in the fraction of cases sentenced at 280g (the point that now triggers a 10-year mandatory minimum), and that this increase is disproportionately large for black and Hispanic offenders. I then explore several possible explanations for the observed racial disparities, including discrimination. I analyze data from multiple stages in the criminal justice system and find that the increased bunching for minority offenders is driven by prosecutorial discretion, specifically as used by about 20-30% of prosecutors. Moreover, the fraction of cases at 280g falls in 2013 when evidentiary standards become stricter. Finally, the racial disparity in the increase cannot be explained by differences in education, sex, age, criminal history, seized drug amount, or other elements of the crime, but it can be almost entirely explained by a measure of state-level racial animus. These results shed light on the role of prosecutorial discretion and potentially racial discrimination as causes of racial disparities in sentencing.

College Park, MD: University of Maryland, 2019. 121p.

By Color Of Change and ACLU’s Campaign for Smart Justice

Every year in the United States, millions of people are forced to pay cash bail after their arrest or face incarceration before trial. This is despite the fact that they are presumed innocent and have not been convicted of a crime. To avoid being locked up while their cases go through the courts—which can sometimes take months or even years—people who cannot afford bail must pay a non-refundable fee to a for-profit bail bonds company to front the required bail amount. The financial burden of this fee harms individuals, it harms families, and it disproportionately affects Black and low-income communities. The only winner is the bottom line of big for-profit businesses. These harms are perpetuated by the large insurance corporations that control the two-billion dollar for-profit bail bonds industry, which is both unaccountable to the justice system and unnecessary to justice itself. Large companies whose only goal is profit should not be the gatekeepers of pretrial detention and release. The for-profit bail system in the United States fuels mass incarceration and contributes to racial and economic inequalities. It is a destructive force that undermines the rights of people who come into contact with the criminal justice system, and it must be abolished.

New York: American Civil Liberties Union, 2017. 64o,

By Christopher T. Lowenkamp, Marie VanNostrand and Alexander Holsinger,

Each time a person is arrested and accused of a crime, a decision must be made as to whether the accused person, known as the defendant, will be detained in jail awaiting trial or will be released back into the community. But pretrial detention is not simply an either-or proposition; many defendants are held for a number of days before being released at some point before their trial. The release-and-detention decision takes into account a number of different concerns, including protecting the community, the need for defendants to appear in court, and upholding the legal and constitutional rights afforded to accused persons awaiting trial. It carries enormous consequences not only for the defendant but also for the safety of the community" (p. 3). This study examines the relationship between pretrial detention and sentencing. Sections following an executive summary include: introduction; sample description; and findings for eight research questions regarding the relations between pretrial detention and sentencing. Defendants who are detained for the entire pretrial period are three times more likely to be sentenced to jail or prison and to receive longer jail and prison sentences.

Houston, TX: Laura and John Arnold Foundation, 2013. 21p.

By Christopher T. Lowenkamp, Marie VanNostrand and Alexander Holsinger

The release-and-detention decision takes into account a number of different concerns, including protecting the community, the need for defendants to appear in court, and upholding the legal and constitutional rights afforded to accused persons awaiting trial. It carries enormous consequences not only for the defendant but also for the safety of the community … Using data from the Commonwealth of Kentucky, this research investigates the impact of pretrial detention on 1) pretrial outcomes (failure to appear and arrest for new criminal activity); and 2) post-disposition recidivism" (p. 3). Sections following an executive summary include: introduction; sample description; research objective one—investigate the relationship between length of pretrial detention and pretrial outcome; and research objective two—investigate the relationship between pretrial detention, as well as the length of pretrial detention, and new criminal activity post-disposition (NCA-PD). There appears to a direct link between how long low- and moderate-risk defendants are in pretrial detention and the chances that they will commit new crimes.

Houston, TX: The Laura and John Arnold Foundation, 2013. 32p.

By Sara Rahman

Aim: To estimate the effect of bail decisions on the likelihood of receiving a prison sentence, failure to appear and offending on bail. Method: A dataset of 42,362 first bail hearings taking place after the ‘show cause’ amendments to the Bail Act (2013) was constructed and linked to final case outcomes and offending data. Quasi-random assignment of bail magistrates with differing propensities to grant bail was used to address problems of selection bias and partial observability. Further analyses were undertaken to determine the proportion and characteristics of defendants who were sensitive to magistrate leniency. Robustness checks were conducted to determine the sensitivity of estimates to different specifications. Results: The marginal effect of additional releases is an increase in the rate of offending from 2.3 per cent to 13.3 per cent, a decrease in the rate of imprisonment from 59.0 to 49.0 per cent and an increase in the rate of failure to appear from 2.1 per cent to 11.1 per cent for those defendants. Thus, remanding ten additional defendants increases the number imprisoned by one, and reduces the number of offending and failing to appear by 1.1 and 0.9 on average. These estimates are causal and net of differences in observed characteristics and selection bias, but applicable only to a subset of defendants whose bail status is sensitive to magistrate leniency. The likelihood of failing to appear and of offending on bail for these defendants does not exceed the general rate among those released on bail. Conclusion: Taken together, the results show that bail refusal has a significant incapacitation effect on crime and failure to appear. These benefits should, however, be considered alongside the considerable cost to the correctional system and the individual arising from increased imprisonment rates. There is limited evidence for the influence of selection bias in regards to imprisonment but not in relation to crime or failure to appear.

Brisbane: NSW Bureau of Crime Statistics and Research , 2019. 24p.

By Sandra G. Mayson,. Lauren Sudeall, Guthrie Armstrong and Anthony Potts

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to go. Most counties assessed do not assure a bail hearing within forty-eight hours of arrest, provide counsel at the initial bail hearing, consistently evaluate arrestees’ financial circumstances, or guarantee release within forty-eight hours of arrest for those who cannot pay bail. In a combined eighteen counties, 37% of misdemeanor arrestees remained in jail for at least three days after arrest. In DeKalb County, 53% of all those arrested on misdemeanor charges between 2000 and 2019 were jailed for three days or more, but the annual rate has declined from 63% in 2009 to 26.5% in 2019.Per capita pretrial detention rates varied widely by county in 2019, with most of the higher rates in the southern portion of the state. Overall, the qualitative and quantitative data demonstrate both progress and substantial variation by county.

Philadelphia: Faculty Scholarship at Penn Law. 2020. 63p.

By Sandra G. Mayson

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

Philadelphia: University of Pennsylvania School of Law, 2020. 39p.

By Paul Heaton

This research summary reports results from an analysis of the effects of misdemeanor bail reform, focusing on a natural experiment in Harris County, Texas that abruptly increased pretrial release rates.

Philadelphia: Quattrone Center for the Fair Administration of Justice, 2022. 51p.

By Angela Zhou, Andrew Koo, Nathan Kallus, Ren´e Ropac , Richard Peterson , Stephen Koppel‖, and Tiffany Bergin

We conduct an empirical evaluation of the impact of New York’s bail reform on crime. New York State’s Bail Elimination Act went into effect on January 1, 2020, eliminating money bail and pretrial detention for nearly all misdemeanor and nonviolent felony defendants. Our analysis of effects on aggregate crime rates after the reform informs the understanding of bail reform and general deterrence. We conduct a synthetic control analysis for a comparative case study of impact of bail reform. We focus on synthetic control analysis of post-intervention changes in crime for assault, theft, burglary, robbery, and drug crimes, constructing a dataset from publicly reported crime data of 27 large municipalities. Our findings, including placebo checks and other robustness checks, show that for assault, theft, and drug crimes, there is no significant impact of bail reform on crime; for burglary and robbery, we similarly have null findings but the synthetic control is also more variable so these are deemed less conclusive.

Unpublished paper, 2021. 64p.

By Allie Preston and Rachael Eisenberg

On any given day in 2022, 658,000 people are incarcerated in jails across the country, more than 80 percent of whom are awaiting trial to determine if they will be convicted of a crime. Although courts have determined that most people can safely await their trial while remaining in their communities, the inability to afford the cost of cash bail prevents thousands of people from accessing pretrial release. The pretrial process that is supposed to protect community safety and ensure access to justice has been corrupted by the corporate influence of the commercial bail industry. A small group of large insurance corporations oversees a web of private companies that make an estimated profit of $2.4 billion each year.2 Forprofit bail companies get rich by foisting nonrefundable costs onto the very people who can least afford the cost of bail, most often people experiencing poverty and people of color. These costs are owed even if the charges are dropped or the person is found not guilty at trial. The commercial bail industry actively defends cash bail systems that produce racially3 and economically unjust outcomes,4 high rates of pretrial incarceration,5 significant costs to taxpayers,6 and negative public safety consequences.7 The commercial bail industry traps people who cannot afford cash bail premiums in a predatory cycle of debt and incarceration, in the same way that payday loan companies and other predatory lenders make a profit by taking advantage of people who need help affording the necessities of daily life.8 Moreover, commercial bail companies operate with little oversight or accountability, frequently engaging in abusive and unethical practices that jeopardize public trust and undermine the legal system’s ability to administer justice.

Washington, DC: American Progress, 2022. 36p.

By Trevor J. Saunders

This book assesses Plato's penal code within the tradition of Greek penology. Saunders provides a detailed exposition of the emergence of the concept of publicly controlled, rationally calculated, and socially directed punishment in the period between Homer and Plato. He outlines the serious debate that ensued in the fifth century over the opposition by philosophers to popular judicial assumptions, and shows how the philosophical arguments gradually gained ground. He demonstrates that Plato advanced the most radical of the philosophical formulations of the concept of punishment in his Laws, arguing that punishment is or should be utilitarian and strictly reformative. This first comprehensive and detailed study of Plato's penology gives deserved attention to the works of a most important political and legal thinker.

Oxford, UK; New York: Clarendon Press/Oxford, 1991. 438p.

By The United States Sentencing Commission

This report focuses on offenders sentenced under the production of child pornography guideline. A companion report, Federal Sentencing of Child Pornography: Non-Production Offenses (June 2021), analyzes offenders sentenced under the nonproduction of child pornography guideline.

Washington, DC; United States Sentencing Commission, 2021. 72p.