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

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

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

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

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

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

By The Scottish Government,  HM Inspectorate of Prosecution in Scotland

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

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

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

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

By Lorinda Riley

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

University of Hawaiʻi Mānoa: 2023. 64p.

By  Besiki Luka Kutateladze; et al.

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

Prosecutorial Performance Indicators , 2022. 12p.

By Patrick McNeil, et al.

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

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

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

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

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

By Ronald Wright and Jenny Roberts  

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

Annu. Rev. Criminol. 2023. 6:241–64 

By  Ilya Klauzner

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

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

By Min-Taec Kim

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

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

By The U.S. Commission on Civil Rights

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

Washington, USCCR, 2022. 281p.

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

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

Washington DC: USCCR, 2021. 16p.

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

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

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

By The European Monitoring Centre for Drugs and Drug Addiction 

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

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

Edited And Translated By Carl Stephenson And Frederick George Marcham

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

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

Edited by  Anna Nylund • Kaijus Ervasti • Lin Adrian

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

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

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

Cham: Springer Nature, 2018. 268p.

By John William Wertheimer

Race and the Law in South Carolina carefully reconstructs the social history behind six legal disputes heard in the South Carolina courts between the 1840s and the 1940s. The book uses these case studies to probe the complex relationship between race and the law in the American South during a century that included slavery, Reconstruction, and Jim Crow. Throughout most of the period covered in the book, the South Carolina legal system obsessively drew racial lines, always to the detriment of nonwhite people. Occasionally, however, the legal system also provided a public forum—perhaps the region’s best—within which racism could openly 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. During the era of slavery, both enslaved and nominally “free” Black South Carolinians suffered extreme legal disenfranchisement. They had no political voice and precious little access to legal redress. They could not vote, serve in public office, sit on juries, or testify in court against whites. There were no Black lawyers. Black South Carolinians had essentially no claims-making ability, resulting, unsurprisingly, in a deeply oppressive, thoroughly racialized system. Most of these antebellum legal disenfranchisements were overturned during the post-Civil War era of Reconstruction. In the wake of abolition, Reconstruction-era reformers in South Carolina erased one racial distinction after another from state law. For a time, Black men voted and Black jurors sat in rough proportion to their share of the state’s population. ……

Amherst, MA: Amherst College Press, 2023.  346p.

Edited by Maureen Mulholland and Brian Pullan with Anne Pullan  

This book is about trials, civil and criminal, ecclesiastical and secular, in England and Europe between the thirteenth and the seventeenth centuries. The opening chapter provides a conceptual framework both for this book and for its companion volume on the eighteenth, nineteenth and twentieth centuries. Subsequent chapters provide a rounded view of trials conducted according to different procedures within contrasting legal systems, including English common law and Roman canon law. They consider the judges and juries and the amateur and professional advisers involved in legal processes as well as the offenders brought before the courts, with the reasons for prosecuting them and the defences they put forward. The cases examined range from a fourteenth century cause-célèbre, the attempted trial of Pope Boniface VIII for heresy, to investigations of obscure people for sexual and religious offences in the city states of Geneva and Venice. Technical terms have been cut to a minimum to ensure accessibility and appeal to lawyers, social, political and legal historians, undergraduate and postgraduates as well as general readers interested in the development of the trial through time. 

Manchester, UK: Manchester University Press, 2003. 197p.

Edited by R.A. Melikan

How does the trial function? What are the tools, in terms of legal principle, scientific knowledge, social norms, and political practice, which underpin this most important decision-making process? This collection of nine essays by an international group of scholars explores these crucial questions. Focusing both on English criminal, military, and parliamentary trials, and upon national and international trials for war crimes, this book illuminates the diverse forces that have shaped trials during the modern era. The contributors approach their subject from a variety of perspectives - legal history, social history, political history, sociology, and international law. With an appreciation and understanding of the relevant legal procedures, they address wider issues of psychology, gender, bureaucracy, and international relations within the adjudicative setting. Their inter-disciplinary approach imparts to this book a breadth not usually seen in studies of the courtroom. Scholars and students of modern British history, political science, and international law, as well as legal history, will find these essays stimulating and informative. 

Manchester, UK: Manchester University Press, 2003. 207p.

By Saba Rouhani, Catherine Tomko,  Noelle P. Weicker, Susan G. Sherman 

 In March 2020, State’s Attorney Marilyn Mosby announced that drug and paraphernalia possession as well as prostitution would no longer be prosecuted in Baltimore City. • In the 14-month period following the policy change, we observed significant declines in arrests for drug and paraphernalia possession as well as prostitution, as reported by both the Baltimore Police Department and the State’s Attorney’s Office. Using Baltimore Police Department-reported arrest data, we estimated that 443 drug and paraphernalia possession arrests were averted in the 14-month period following the policy change, the majority (78%) of which were averted among Black individuals. • Using Maryland Courts Judicial Information Systems arrest data, we found an extremely low prevalence of rearrests for serious crimes, such as robbery and assault, in the 14-month period following the policy change: 0.8 percent, or six of the 741 individuals whose drug and prostitution charges were dropped. This suggests that the vast majority of direct beneficiaries of the policy change did not go on to commit crimes threatening public safety. • There was no evidence of an increase in public complaints pertaining to drugs or prostitution, measured by 911 calls made in Baltimore City, following the policy change. • Though causality cannot be established, these preliminary findings suggest that declining to prosecute low level drug and prostitution offenses may avert arrests among individuals with intersecting vulnerabilities without posing a threat to public safety or resulting in increased public complaints. Ensuring that these individuals can access health and social service instead of criminal punishment is a public health priority.

Baltimore: Johns Hopkins Bloomberg School of Public Health ,  Department of Health, Behavior and Society:  2023. 21p.