By Brandon L. Garrett, William E. Crozier, Kevin Dahaghi, Elizabeth J. Gifford, Catherine Grodensky, Adele Quigley-McBride & Jennifer Teitcher

Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated—or discriminatory, self-interested, and arbitrary—with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void. In this Article, we open the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining. This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team. We collected systematic data from two prosecutors’ offices for one year. The Article describes how the data-collection methodology was designed, piloted, and implemented, as well as the insights that have been generated. Our system can be readily adapted to other offices and jurisdictions. We conclude by discussing how documenting the plea-bargaining process can affect prosecution practices, defense lawyering, judicial oversight, and public policy, its constitutional and ethical implications, and its broader implications for democratic legitimacy. An open-prosecution approach is feasible and, for the first time in the United States, it is in operation.

75 STAN. L.REV. 1365 (2023)

By Brian J. Ostrom and Jordan Bowman

Since Gideon v. Wainwright, the provision of an attorney to a criminal defendant is an accepted constitutional right. The past 50 years has witnessed the ongoing development by defense practitioners of what it means to “provide the effective assistance of counsel” through strong legal advocacy. More recently, many practitioners contend that in addition to the defense attorney, professional support services, such as social workers, paralegals, and criminal investigators, are critical to effective assistance of counsel in indigent defense cases. Investment by defender offices in resources and skills beyond traditional legal expertise promises to bring positive returns not just for clients, but for the criminal justice system and taxpayers as well. The umbrella of what we will call the holistic defense model covers the most developed concepts and practices of an integrated defense team. Proponents of holistic defense claim a wide range of enhanced client outcomes including more favorable court dispositions and successful treatment for recurring needs (e.g., addiction, joblessness, mental illness) as well as associated public benefits such as reduced recidivism and less reliance on costly incarceration. As positive as these meritorious claims may be, the current dearth of rigorous evaluative research means they remain unverified

Williamsburg, Virginia, National Center for State Courts, 2019. 53p.

By Kate Weisburd

The day-to-day operation of criminal court supervision—including probation, parole, and electronic ankle monitoring—is understudied and undertheorized. To better understand the mechanics of these systems, this study comprehensively analyzes the rules governing people on criminal court supervision in the United States. Drawing on the analysis of 187 public records from all fifty states, this study documents how criminal court supervision functions and impacts daily life. In particular, this study examines the various ways that supervision rules limit or restrict privacy, bodily autonomy, liberty, dignity, speech, and financial independence. This study also explores the nature and prevalence of supervision rules across the United States. Ultimately, the analysis of the rules offers empirical evidence that court supervision imposes significant restraints on people’s ability to thrive and, in doing so, risks legitimating the subordination of historically marginalized groups.

58 Harv. C.R.-C.L. L. Rev. 1, 2023.

By Becca Cadoff, Preeti Chauha, Erica Bond,

• Misdemeanor Arrest Rates: The misdemeanor arrest rates in all Research Network jurisdictions decreased in recent years. These declines often followed a period of significant increases in misdemeanor enforcement. • Misdemeanor Arrests by Race: Black people were arrested at the highest rates of any racial/ ethnic group for all jurisdictions across the entire study period. Racial disparities between Black people and White people existed in all jurisdictions, and these disparities persisted despite the recent overall declines in arrest rates. However, the magnitude of the disparities varied by jurisdiction and over time -- ranging from approximately three to seven arrests of Black people for one arrest of a White person. • Misdemeanor Arrests by Age: Arrest rates were highest for younger age groups (i.e., 18-20-year-olds and 21-24-year-olds) at the beginning of the study period. At the same time, arrest rates were generally much lower for the oldest age group (i.e., 35-65-year-olds). Over time, arrest rates for the younger age groups fell the most, sometimes to rates lower than 25-34-year-olds. • Misdemeanor Arrests by Sex: Males were arrested at higher rates than females in all jurisdictions across the study period. Although the arrest rates for males fell more than for females, this gender gap in arrest rates persisted over the study period. • Misdemeanor Arrests by Charge: Within the context of fluctuating misdemeanor arrests, the composition of misdemeanor charges changed over time across most sites. Cross-jurisdiction trends indicate a move away from more discretionary, drug-related charges and an increase in the share of charges where there is an identifiable complainant or victim (“person-related” offenses)….

New York: Data Collaborative for Justice (DCJ) at John Jay College of Criminal Justice , 2020. 34p.

By Will Dobbie and Crystal S. Yang

  We measure the economic costs of the US pretrial system using several complementary approaches and data sources. The pretrial system operates as one of the earliest points of entry in the criminal justice system. It typically represents an individual’s first opportunity to be incarcerated, potentially leading to subsequent long-term damage in the form of family separation, work interruption, loss of housing, and so on. We find that individuals lose almost $30,000 in forgone earnings and social benefits when detained in jail while awaiting the resolution of their criminal cases. These adverse consequences are also present in aggregate measures of economic well-being, with increases in county pretrial detention rates associated with increases in poverty rates and decreases in employment rates. Counties with high levels of pretrial detention also exhibit significantly lower levels of intergenerational mobility among children, consistent with pretrial detention having an adverse impact on young children who may be the dependents of individuals affected by the pretrial system.

Washington DC: Brookings,, 2021. 41p.

By Joshua Page, Joe Soss

  Over the past 35 years, public and private actors have turned US criminal justice institutions into a vast network of revenue-generating operations. Today, practices such as fines, fees, forfeitures, prison charges, and bail premiums transfer billions of dollars from oppressed communities to governments and corporations. Guided by scholarship on racial capitalism, we argue that to understand how and why criminal justice operates as it does today, one must attend to its predatory dimensions. Analytically and politically, the concept of predation connects diverse forms of criminal legal takings to one another, to the extractive regimes of earlier eras, and to contemporary businesses that financially exploit subjugated communities. Analyses that focus on predatory relations   encourage a reconsideration of some dominant understandings in the study of criminal justice today.

Science • 15 Oct 2021

By The Working Group

The Minister for Justice Helen McEntee T.D has today published the final report and recommendations of the Working Group examining the Disregard of Convictions for Certain Qualifying Offences Related to Consensual Sexual Activity between Men. The report contains 95 recommendations regarding the introduction of a statutory scheme to enable the disregard of relevant criminal records.

“Nearly 30 years on from decriminalisation, Ireland has become a much more tolerant society. But there are many people who still feel the hurt and stigma created by the laws that criminalised consensual sexual activity between men.

By Allison P. Harris

How does racial diversity impact institutional outcomes and (in)equality? Discussions about diversity usually focus on how individuals’ identities shape their behavior, but diversity is a group-level characteristic. Scholars must, therefore, consider the relationship between group composition and the individual decisions that shape institutional outcomes. Using felony data from a large U.S. court system, I explore the relationship between racial diversity among the judges comprising a court and individual judges’ decisions. I find that as the percent of Black judges in a courthouse increases white judges are less likely to render incarceration sentences in cases with Black defendants. Increases in racial diversity decrease the Black–white gap in the probability of incarceration by up to 7 percentage points. However, I find no relationship between judge’s racial identities and disparities in their decisions. This study highlights the importance of conceptualizing diversity as a group characteristic and the relationship between institutional context and outcomes.

  American Political Science Review (2023) 1–16  

By Bruce A. Green and Rebecca Roiphe

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

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

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

By Helen Mills, Matt Ford and Roger Grimshaw

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

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

By Phil Bowen

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

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

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

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

London: Barrow Cadbury Trust, 2022. 39p.

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

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

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

Used book-may contain mark-up

By Alan M. Dershowtiz

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

New York. Contemporary Books. 1988. 348p.

  Edited by Gizem Guney, David Davies and Po-Han Lee  

This Open Access book aims to find out how and why states in various regions and of diverse cultural backgrounds fail in their gender equality laws and policies. In doing this, the book maps out states’ failures in their legal systems and unpacks the clashes between different levels and forms of law—namely domestic laws, local regulations, or the implementation of international law, individually or in combination. By taking off from the confirmation that the concept of law that is to be used in achieving gender equality is a multidimensional, multi-layered, and to an extent, contradictory phenomenon, this book aims to find out how different layers of laws interact and how they impact gender equality. Further to that, by including different states and jurisdictions into its analysis, this book unravels whether there are any similarities/patterns in how these states define and utilise policies and laws that harm gender equality. In this way, the book contributes to the efforts to devise holistic and universal policies to address various forms of gender inequalities across the world. This volume will be of interest to scholars and students in Gender Studies, Sociology, Law, and Criminology.

Cham: Palgrave Macmillan, 2022. 262p.

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.