By Frances Osborne, Sarah Castell, Rebekah McCabe & Louise MacAllister

This report covers the findings of an online public dialogue held in Spring 2023 to provide evidence for the Justice Committee’s inquiry on Public Opinion and Understanding of Sentencing. The dialogue responded to two key questions:  What do you think the aims of sentencing should be?  What should the government’s priorities be when setting sentencing policy? 25 people were chosen to reflect the general public, screening out those with particular or emotionally significant lived experience of the justice system. Participants engaged in three half-day sessions to learn more about the issue, deliberate together and answer the two questions above. Participants were given different ways to consider the aims of sentencing and deliberate between themselves, while also asking questions of experts. At the beginning Sir Bob Neill, from the Justice Select committee, and Jack Simson Caird, a member of the Committee’s secretariat, introduced the role of the select committee and of the wider inquiry. This was followed by a presentation from Ruth Pope from the Sentencing Council about the aims of sentencing, and participants had a Q&A session with all the presenters. In the later workshops, presentations were given on the problems and challenges in current sentencing policy from different perspectives, including those of victims and prisoners. These were given by Gavin Dingwall, from the Sentencing Academy, and Mark Day, Joint Secretary to the Independent Commission into the Experience of Victims & Long-term Prisoners. At the final meeting, there was a discussion of the ways sentencing is discussed in the wider social media context; and a ‘You be The Judge’ case study exercise where participants considered how general principles might play out when applied to individual cases. The findings in this report have been arrived at through qualitative thematic analysis of the dialogue as a whole. It is accompanied by findings from a survey participants completed before and after the dialogue.

London: UK Parliament, 2023. 67p.

By Richard L. Vining Jr. and Teena Wilhelm

Administering Justice examines the leadership role of chief justices in the American states, including how those duties require chief justices to be part of the broader state political environment. Vining and Wilhelm focus extensively on the power of chief justices as public spokespersons, legislative liaisons, and reform leaders. In contrast to much existing research on chief justices in the states, this study weighs their extrajudicial responsibilities rather than intracourt leadership. By assessing the content of State of the Judiciary remarks delivered over a period of sixty years, Vining and Wilhelm are able to analyze the reform agendas advanced by chief justices and determine what factors influence the likelihood of success. These analyses confirm that chief justices engage with state politics in meaningful ways and that reactions to their proposals are influenced by ideological congruence with other political elites and the scope of their requests. Administering Justice also examines the chief justice position as an institution, provides a collective profile of its occupants, and surveys growing diversity among court leaders.

Ann Arbor, MI: University of Michigan Press, 2023. 189p.

Edited by Olaf Halvorsen Rønning and Ole Hammerslev

his edited collection provides a comprehensive analysis of the differences and similarities between civil legal aid schemes in the Nordic countries whilst outlining recent legal aid transformations in their respective welfare states. Based on in-depth studies of Norway, Sweden, Finland, Denmark, and Iceland, the authors compare these cases with legal aid in Europe and the US to examine whether a single, unique Nordic model exists. Contextualizing Nordic legal aid in relation to welfare ideology and human rights, Hammerslev and Halvorsen Rønning consider whether flaws in the welfare state exist, and how legal aid affects disadvantaged citizens. Concluding that the five countries all have very different legal aid schemes, the authors explore an important general trend: welfare states increasingly outsourcing legal aid to the market and the third sector through both membership organizations and smaller voluntary organizations. A methodical and compas sionate text, this book will be of special interest to scholars and students of the criminal justice, the welfare state, and the legal aid system.

Basingstoke: Palgrave Macmillan, 2018. 345p.

By Catrina Denvir, Jacqueline Kinghan, Jessica Mant, Daniel Newman

Legal aid lawyers provide a critical function in supporting individuals to address a range of problems. These are problems that commonly intersect with issues of social justice, including crime, homelessness, domestic violence, family breakdown and educational exclusion. However, the past few decades have seen a clear retreat from the tenets of the welfare state, including, as part of this, the reduced availability of legal aid. This book examines the impact of austerity and related policies on those at the coalface of the legal profession. It documents the current state of the sector as well as the social and economic factors that make working in the legal aid profession more challenging than ever before.

Through data collected via the Legal Aid Census 2021, the book is underpinned by the accounts of over 1000 current and former legal aid lawyers. These accounts offer a detailed demography and insight into the financial, cultural and other pressures forcing lawyers to give up publicly funded work. This book combines a mixture of quantitative and qualitative analysis, allowing readers a broad appreciation of trends in the legal aid profession.

This book will equip readers with a thorough knowledge of legal aid lawyers in England and Wales, and aims to stimulate debate as to the fate of access to justice and legal aid in the future.

London: Bloomsbury Academic/Hart, 2023. 304p.

By Conor Casey

This report considers the constitutional role of the Law Officers and defends the institutional status quo. The current configuration of the Attorney General (and Solicitor General), as a law officer with legal and political dimensions, works well. Moving to an alternative (apolitical, technocratic) model of Attorney General would risk excessive legalisation of policy and would reduce political accountability.

London: Policy Exchange, 2023. 29p.

Edited by Diane Kirkby

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

Canberra: Australian National University, 2011. 236p.

Edited by Gunnar Duttge and Won Sang Lee

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

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

Universitätsverlag Göttingen, 2011. 181p.

By Michael J. Z. Mannheimer

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

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

By Stina Bergman Blix and Åsa Wettergren

Professional Emotions in Court examines the paramount role of emotions in the legal professions and in the functioning of the democratic judicial system. Based on extensive interview and observation data in Sweden, the authors highlight the silenced background emotions and the tacitly habituated emotion management in the daily work at courts and prosecution offices. Following participants ‘backstage’ – whether at the office or at lunch – in order to observe preparations for and reflections on the performance in court itself, this book sheds light on the emotionality of courtroom interactions, such as professional collaboration, negotiations, and challenges, with the analysis of micro-interactions being situated in the broader structural regime of the legal system – the emotive-cognitive judicial frame – throughout. A demonstration of the false dichotomy between emotion and reason that lies behind the assumption of a judicial system that operates rationally and without emotion, Professional Emotions in Court reveals how this assumption shapes professionals’ perceptions and performance of their work, but hampers emotional reflexivity, and questions whether the judicial system might gain in legitimacy if the role of emotional processes were recognized and reflected upon.

London; New York: Routledge, 2018. 209p.

By Maisie Karam, Jennifer Lukassen, Zoran Miladinovic, and Marnie Wallace

The efficiency and effectiveness of the Canadian criminal justice system has been a key focus of national discussion in recent years. Despite recent declines in the crime rate and a decreasing number of completed court cases nationally, charges in Canadian criminal courts have been taking longer to complete over the past decade (Miladinovic 2019b). This apparent disconnect has resulted not only in the Supreme Court of Canada’s R. v. Jordan decision (see Text Box 2) which imposed a presumptive ceiling for completing criminal court cases beyond which the delay is considered unreasonable, but has also sparked renewed interest in improving and measuring the efficiency of the current criminal justice system.

The Department of Justice Canada undertook a criminal justice system review starting in 2015 and spanning a three-year period, in which stakeholders, partners and Canadians were consulted on their ideas regarding how to strengthen and modernize the criminal justice system (Department of Justice Canada 2019a). Throughout this review, participants highlighted a number of key concerns, including lengthy delays for a case to get to trial, long case processing times, and a court system that is overly occupied with relatively minor administration of justice offences.

Around the same time, the Standing Senate Committee on Legal and Constitutional Affairs was mandated to review the roles of the Government of Canada and Parliament in addressing court delays. In addition to releasing 50 recommendations, the final report, Delaying Justice is Denying Justice: an Urgent Need to Address Lengthy Court Delays in Canada (2017), identified a number of factors contributing to lengthy delays including a lack of robust case management, a shortage of judges, prosecutors and courtrooms, as well as the increasing complexity of criminal trials.

Lengthy trials and other delays in court case processing have a significant impact on both accused persons and victims, as the stress of waiting for a resolution is made worse by each adjournment. Further, lengthy and delayed criminal proceedings have an impact on the quality and reliability of evidence (Senate Canada 2017). Ongoing and repeated delays in the court system can also diminish public confidence in the criminal justice system, which is fundamental to its operation.

Recent attempts have been made to address the inefficiencies that have been identified, including the introduction of former Bill C-75 (An Act to amend the Criminal Code, the Youth Criminal Justice Act and to make consequential amendments to other Acts),Note which is intended to modernize the criminal justice system and reduce delays (Department of Justice Canada 2019b).

Historically, data from the Integrated Criminal Court Survey (ICCS) has focused on completed cases, allowing for a retrospective look at the work that has been completed by the courts. The national conversation on court efficiency, however, now requires the ability to analyze the full scope of work going on in the court system, including ongoing or active cases. The full extent of the challenges faced by the Canadian criminal justice system, as well as any future progress, can only be known through the ongoing measurement of various aspects of court workload and case processing.

This report introduces a series of new criminal court workload and case processing indicators (see Text Box 1) based on open cases in order to add to the ongoing conversation about the efficiency of criminal courts in Canada. The development of these new indicators was made possible because of strong collaborative partnerships with key stakeholders. The Canadian Centre for Justice and Community Safety Statistics (CCJCSS) at Statistics Canada would like to acknowledge those who shared in the growing interest to expand the standard ICCS indicators in order to address existing data gaps, in particular, the Sub-Committee on Court Statistics (CSI) for the Steering Committee on Justice Efficiencies and Access to the Justice System and the Heads of Court Administration, Court Statistics and Information Sub-Committee (HoCA CSI).

The analysis in this Juristat is divided into seven sections. The first looks at the inventory of open cases and addresses such questions as: how many court cases start in a given year, and how many are open at a given time? What do open cases look like? The second section begins to analyze the age of open cases. The third section focuses on at-risk cases, specifically how many are potentially at risk of being stayed due to unreasonable delays. The fourth section examines completion rates. An analysis of case processing times makes up the fifth section of the report. The sixth section focuses on court workload and attempts to answer questions concerning how much overall work goes into closing cases. The final section addresses court backlog and analyzes the courts’ ability to meet the demands of incoming cases. Throughout the report, trends are presented for the last 10-years, as well as by offence, province and territory, and court level where relevant.

Ottawa: Statistics Canada, 2020. 31p.

By Steering Committee on Justice Efficiencies and Access to the Justice System

A sub-committee of the Steering Committee on Justice Efficiencies and Access to the Criminal Justice System was formed to examine therapeutic courts in Canada, ascertain how well they were functioning, and identify best practices. A plan was formed to conduct a jurisdictional scan focused on mental health and drug treatment courts. (Other therapeutic courts, such as domestic violence courts and “Gladue” courts for Indigenous offenders, were outside the scope of the scan due to the constraints of time and the need to focus the inquiries.) Group interviews were arranged with judges, lawyers, and treatment providers from across Canada who work in these courts. The general topics that were covered in the interviews were: 1) Barriers to access and success; 2) Best practices; and 3) Evaluation methods. The authors of this report hope that this report can, in some way, serve to support, enhance, and contribute to the extensive body of knowledge held by the dedicated professionals who serve in these courts and who are passionately committed to improving the well-being of their communities.

Vancouver, BC: ICCLR, 2021. 142p.

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

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

Highlights:

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

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

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

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

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

By John W. Wertheimer

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

Amherst College Press, 2023.

By Lisa Keen and Suzanne B. Goldberg

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

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

Edited by Michiel Van der Wolf

This edited collection provides an interdisciplinary and cross-national perspective on safeguarding the quality of forensic assessment in sentencing offenders. Taking an in-depth look at seven different Western countries, each chapter provides an overview of the role of assessment in sentencing offenders, as well as a focus on formal ways in which the respective country’s legal system and disciplinary associations protect the quality of forensic assessment. Each chapter explores how to assure better decision making in individual cases based on assessments of psycholegal concepts such as mental disorder/insanity, criminal responsibility and dangerousness. Combining the perspectives of lawyers, legal scholars, and clinicians working in the field, this book is essential for those working in and with forensic assessment.

New York; London: Routledge, 2022. 281p.

By Kim Thomas

Summary The Prevention of Organised Crime Act’s anti-gang provisions are not meeting their objectives. They were originally meant to fill the gaps in common law and help prosecutors gain convictions for gang-related crimes. But the act is severely underutilised for these specific crimes. For this paper’s recommendations to have a substantial effect on addressing organised crime, the various departments involved in South Africa’s criminal justice process need to be cleaned up and resources improved. Key points • Post-apartheid South Africa experienced an increase in organised crime and gangrelated activity. The South African legislature responded with enacting the Prevention of Organised Crime Act in 1999 and specifically addressed criminal gang activity, money laundering and racketeering. • Over 20 years later, very few gang-related cases have been prosecuted under this legislation. Most gang activity is still prosecuted under common law and other legislation. • Interviews with key stakeholders reveal that the main cause for failed/limited implementation lies in the scarcity of human resources, skills and training across the South African Police Service, National Prosecuting Authority and Crime Intelligence, and the lack of meaningful cooperation among them. • Further shortfalls of the act include a lack of provision for targeting gang leaders and Research Paper weak sentencing

ENACT-Africa, 2023. 32p.

By James Hess and Susan Turner

Jurisdictions across the country have joined a movement to rethink how individuals are handled at the pretrial stage of case processing. Although alternatives to cash bail systems have been around since the 1960s, 1 renewed interest has focused on the use of risk assessment algorithms to help determine which pretrial individuals might be released safely into the community. These types of tools hold promise as a means to move away from “debtor prisons” for individuals who do not have the financial resources to pay for their release. However, the field is still in the relatively early stage of testing these tools for predictive ability, potential racial bias in administration, as well as whether their use actually reduces incarceration.2 California has recently entered the pretrial risk assessment arena. Senate Bill 10 was passed in 2018 to change from a cash-based pretrial system to a risk-based release and detention system; although it is on hold until November 2020 when California voters determine its fate. 3 However, legislation passed as part of the 2019 Budget Act created a pilot program to test the use of various risk assessment tools in a number of counties across California. This report presents findings from the Los Angeles pilot effort under the Act to validate the Public Safety Assessment (PSA). The PSA is a risk assessment instrument developed by the Laura and John Arnold Foundation to inform pretrial judicial decisions on whether to release or detain a defendant. The tool predicts three outcomes after pretrial release: Failure to Appear (FTA); New Criminal Activity (NCA, arrest on any misdemeanor or felony charge); and New Violent Criminal Activity (NVCA, arrest on a violent misdemeanor or felony charge). The tool’s nine risk factors include prior convictions, incarceration, and failures to appear, violent offenses, pending cases at the time of arrest and age. Risk factor counts are weighted by an integer multiplier and summed to create a risk score. Several sets of adjacent scores are collapsed together into one score to produce a final 6-point risk scale for each of the outcomes.

Irvine, CA: University of California Irvine, Center for Evidence-Based Corrections, 2021. 103p

By Brandon L. Garrett, Brett O. Gardner , Evan Murphy, Patrick Grimes

In criminal cases, forensic science reports and expert testimony play an increasingly important role in adjudication. More states now follow a federal reliability standard, which calls upon judges to assess the reliability and validity of scientific evidence. Little is known about how judges view their own background in forensic scientific evidence, and what types of specialized training they receive on it. In this study, we surveyed 164 judges from 39 different U.S. states, who attended past trainings at the National Judicial College. We asked these judges about their background in forensic science, their views concerning the reliability of common forensic disciplines, and their needs to better evaluate forensic science evidence. We discovered that judges held views regarding the scientific support for different forensic science disciplines that were fairly consistent with available literature; their error rate estimates were more supported by research than many estimates by laypersons, who often assume forensic methods are nearly infallible. We did not find any association between how judges rate forensic reliability and prior training. We did, however, find that training corresponded with judges’ views that they should, and do in fact, take on a more active gatekeeping role regarding forensics. Regarding the tools judges need to vet forensic experts and properly evaluate forensic science evidence, they reported having very different backgrounds in relevant scientific concepts and having forensic science education needs. Judges reported needs in accessing better material concerning reliability of forensic science methods. These results support new efforts to expand scientific evidence education in the judiciary.

Forensic Science International. Volume 321, April 2021, 110714

By Brandon L. Garrett; William E. Crozier.; and Rebecca Grady

Forensic examiners regularly testify in criminal cases, informing the jurors whether crime scene evidence likely came from a source. In this study, we examine the impact of providing jurors with testimony further qualified by error rates and likelihood ratios, for expert testimony concerning two forensic disciplines: commonly used fingerprint comparison evidence and a novel technique involving voice comparison. Our method involved surveying mock jurors in Amazon Mechanical Turk (N = 897 laypeople) using written testimony and judicial instructions. Participants were more skeptical of voice analysis and generated fewer “guilty” decisions than for fingerprint analysis (B = 2.00, OR = 7.06, p = <0.000). We found that error rate information most strongly decreased “guilty” votes relative to no qualifying information for participants who heard fingerprint evidence (but not those that heard voice analysis evidence; B = 1.16, OR = 0.32, p = 0.007). We also found that error rates and conclusion types led to a greater decrease on “guilty” votes for fingerprint evidence than voice evidence (B = 1.44, OR = 4.23, p = 0.021). We conclude that these results suggest jurors adjust the weight placed on forensic evidence depending on their prior views about its reliability. Future research should develop testimony and judicial instructions that can better inform jurors of the strengths and limitations of forensic evidence.

Journal of Forensic Sciences, 2020

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.

Michigan Law Review Volume 121 Issue 5 2023