By Akhi Johnson, et al.

In 2020, after a request for proposal process, Vera began partnerships with prosecutors’ offices in six jurisdictions: Boulder County, Colorado; Contra Costa County, California; DeKalb County, Georgia; Ingham County, Michigan; Ramsey County, Minnesota; and Suffolk County, Massachusetts. The partnerships were initially slated to run for 12–18 months, but the pandemic and the 2020 racial justice movement required adapting and lengthening those engagements to two years. Three goals guided the partnerships: reducing mass incarceration, addressing racial disparities, and increasing accountability to those most impacted by the criminal legal system. Prosecutors wield tremendous power, as their decisions reach nearly every aspect of the criminal legal system. They decide whom to charge—and with what offense; whether to ask for bail; when to provide evidence to the defense; what plea offer to make; what sentence to recommend; and, in some instances, whether someone should receive parole. However, prosecutors have the greatest influence at charging, when they decide whether someone enters the criminal legal system, and their charging discretion is virtually unchecked. Although Vera helped each office to examine its impact at every discretion point, the primary focus was on how to reduce harms at charging—through who was charged, what crime was charged, and who could be diverted away from traditional prosecution. Vera’s approach to addressing racial disparities focused on systemic issues rather than potential biases of individual actors. Rather than analyze whether similarly situated people received different treatment based on their race, Vera highlighted broader trends to illustrate which communities the criminal legal system impacts most and in what ways. For example, Vera’s analysis revealed that although Black people represent 55 percent of DeKalb County, Georgia’s population, they made up 81 percent of the adult caseload, 79 percent of juvenile cases, and 93 percent of children charged as adults.2 Rather than seeking to determine who was at fault, Vera’s analysis describes trends and starts conversations within communities about the historical and societal factors contributing to disparities and how stakeholders can respond. For each partnership, a key goal was to help prosecutors be more accountable to communities impacted by their decisions. In many areas around the country, people do not know who their elected prosecutors are, let alone how an office’s decisions affect safety in their communities. That gap represents a missed opportunity to learn from people uniquely positioned to inform policy discussions, and it leaves communities ill-equipped to gauge the performance of their elected officials. Vera worked in partnership with each office to facilitate the public sharing of data to inform communities and ground conversations on potential reform efforts. As one community group noted, Vera’s engagement “has made our prosecutor more aware of the need for a greater relationship with the community. . . . [W]e have a lot of systemic issues . . . [and] Vera’s presence has allowed us to continue to push the conversations forward.” Multiple factors impacted each office’s ability to implement reforms during the engagements, but the political climate was most significant. With increased scrutiny of reform prosecutors and false narratives that communities had to choose between safety and reform, some jurisdictions faced unique challenges in announcing changes. Vera worked with each jurisdiction to assess what was feasible in the current moment and adjusted accordingly. Despite the political climate, our partners made significant strides—including a groundbreaking policy in Ramsey County, Minnesota, inspired by Philando Castile’s death, to deter non– public safety (pretextual) traffic stops. However, even when an office did not announce a particular policy, Vera observed shifts in how prosecutors approached cases based on discussions prompted by the engagements. As partner offices noted, Vera’s work prompted new discussions about how to assess cases and revealed problem areas. One prosecutor reflected that the engagement “changed the way I think about my job and my role . . . being more mindful about the decision to charge somebody with a felony, and, you know, even if that case is later dismissed, the impact that can have on them.”

New York: Vera Institute of Justice, 2023. 40p.

By Gabriel Petek

Individuals charged with a crime have a right to effective assistance of legal counsel under the U.S. and California Constitutions. This is to ensure they receive equal protection and due process under the law. The government is required to provide and pay for attorneys for those individuals who are unable to afford private attorneys. This is known as “indigent defense.” Importance of Effective Indigent Defense. In addition to being a constitutional right, effective indigent defense in criminal proceedings can help mitigate or eliminate major consequences that defendants face regardless of whether they are convicted, such as losing a job due to being held in jail until their case is resolved. Effective indigent defense can also help ensure that all individuals are treated equitably in criminal proceedings, particularly lower-income individuals and certain racial groups who are at greater risk of experiencing serious consequences from being involved in the criminal justice system. Counties Primarily Responsible for Indigent Defense. In California, counties are primarily responsible for providing and paying for indigent defense. However, recent litigation suggests that the state could be held responsible for ensuring that effective indigent defense is being lawyerprovided. Indigent defense is generally provided in a combination of three ways: (1) public defender offices operated by the government, (2) private law firms or attorneys that contract with the government to provide representation in a certain number of cases and/or over a certain amount of time, or (3) individual private attorneys who are appointed by the court to specific cases. The actual provision of indigent defense services, however, varies by county. State Lacks Information to Assess Indigent Defense Service Levels. The state currently lacks comprehensive and consistent data that directly measures the effectiveness or quality of indigent defense across the state. This makes it difficult for the Legislature to ensure effective indigent defense is being provided. Analysis of Limited Data Raises Questions About Effective Provision of Indigent Defense. In the absence of consistent statewide data and metrics more directly measuring the effectiveness or quality of indigent defense, we analyzed limited available data comparing funding, caseloads, and staffing of indigent defense providers with district attorneys who prosecute cases, allowing for a rough, indirect assessment of existing indigent defense service. The identified differences are notable enough that they raise questions about the effective provision of indigent defense in California. For example, in 2018-19, spending on district attorney offices was 82 percent higher than on indigent defense. Recommend Three Key Steps for Legislative Action. We recommend three key steps that the Legislature could take to ensure it has the necessary information to determine whether a problem exists with indigent defense service levels, what type of problem exists, and how to effectively address such a problem. Specifically, we recommend the Legislature: (1) statutorily define appropriate metrics to more directly measure the quality of indigent defense; (2) require counties collect and report data to the state’s Office of the State Public Defender; and (3) use the data to determine future legislative action, such as identifying whether resources are needed to ensure effective indigent defense as well as how such resources could be targeted to maximize their impact

Sacramento: Legislative Analyst's Office, 2022. 28p.

by Duren Banks, Lynn Langton, Madison Fann, Michael G. Planty, Michael J. D. Vermeer, Brian A. Jackson, Dulani Woods

The systems that provide counsel for indigent adult and juvenile defendants in the United States vary considerably across states, localities, and judicial jurisdictions. In addition to the challenges associated with the myriad systems for providing indigent defense, there are other inherent challenges to providing effective defense counsel. These challenges include a lack of sufficient resources in general, access to investigators and other support staff, workload standards and other standards to support effective representation, strategies to support the recruitment and retention of quality counsel dedicated to indigent defense, and specialized training and other needs related to the provision of public defense with certain clients or cases.

On behalf of the National Institute of Justice, RTI International and RAND Corporation researchers conducted an environmental scan to develop a set of information gaps or research priorities that, if addressed, could advance knowledge around effective indigent defense strategies. In the scan, the researchers (1) explored the literature around the needs of the indigent defense field, (2) obtained input from leading practitioners through individual interviews, group discussion, and interactive feedback, and (3) reviewed the priorities of federal and private research and practitioner organizations.

Key Findings

• There is a lack of basic descriptive data about indigent defendants (e.g., which defendants have lawyers representing them and which are deprived of lawyers).

• Many jurisdictions are not equipped to provide pre-court or pre-charge representation.

• Excessive caseloads have an impact on the quality of representation, the ability to adhere to professional practice standards, and client-attorney relationships; that impact is not well understood.

• In some jurisdictions, there is limited or no access to attorneys with the qualifications, experience, and desire needed to represent people in criminal cases who are unable to afford counsel.

• In many jurisdictions, particularly rural communities, there is limited or inconsistent access to the nonattorney case support needed to provide quality indigent defense representation.

• It is difficult to hire qualified and diverse indigent defense attorneys.

• Because of the differing systems for assigning counsel across the United States, many defendants who are accused of misdemeanors or other lower-level crimes do not receive the assistance of counsel when facing pretrial detention or fines, fees, or other penalties associated with a guilty plea.

• There is a lack of understanding about the extent to which the racial, cultural, and socioeconomic backgrounds of indigent defense attorneys affect the experiences of the clients they serve.

• Emerging research shows that holistic defense strategies, which address co-occurring and collateral factors associated with criminal cases, hold promise for advancing justice and improving outcomes for individuals and communities.

Recommendations

• Require courts to collect descriptive data on which defendants have representation; leverage this information to answer research questions.

• Assess innovative options used in some jurisdictions to provide earlier access to a lawyer.

• Examine areas with different levels of caseloads and examine the differences across a broad variety of outcomes and impacts and for different types of clients and cases.

• Conduct research that offers a more nuanced understanding of the administration of indigent defense in small, rural areas.

• Conduct research to identify the impacts of nonattorney case support on case outcomes.

• Explore strategies for expanding access to paraprofessional expertise.

• Study other systems that are working well.

• Conduct research on the scope of rules, practices, and resource decisions that limit access to counsel.

• Obtain client perspectives on differences in the level and quality of representation received through public defense and noninstitutional representation systems; focus on reducing those differences.

• Conduct research to identify the full scope of issues that make it difficult to recruit qualified and diverse attorneys.

• Develop undergraduate and law school internship programs and defense counsel pipelines.

• Evaluate training opportunities; determine whether training is effective and under what circumstances.

• Conduct research on the complexities that public defense attorneys face and the support and resources needed to successfully manage these complexities.

• Engage with defendants to get their perspectives on what quality counsel means and how it is operationalized.

• Conduct research to connect outcomes with what indigent defense attorneys are doing to understand the types of engagement that are most effective.

• Santa Monica, CA: RAND, 2023. 20p.

by Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee, Stephen F. Hanlon

Public defense attorneys with excessive caseloads cannot give appropriate time and attention to each client. Excessive caseloads violate ethics rules and inevitably cause harm. Overburdened attorneys are forced to choose cases or activities to focus on, such that many cases are resolved without appropriate diligence. A justice system burdened by triage risks unreliability, denying all people who rely on it — victims, witnesses, defendants, and their families and communities — efficient, equal, and accurate justice.

Ethics rules require lawyers to limit their workloads to ensure competent representation. But what should those limits be? Clear standards for public defense workloads are essential to policymakers' ability to fund and staff the defense function at appropriate levels, to public defense authorities' ability to conduct appropriate oversight, and to attorneys' ability to provide their clients with reasonably effective assistance of counsel pursuant to prevailing professional norms as guaranteed by the Sixth Amendment to the U.S. Constitution.

To create new national public defense workload standards, researchers conducted a comprehensive review and analysis of 17 state-level public defense workload studies conducted between 2005 and 2022 and then employed the Delphi method to facilitate the efforts of a panel of 33 expert criminal defense attorneys from across the country to come to a consensus on the average amount of time needed to provide constitutionally appropriate representation in an array of adult criminal cases.

Key Findings

Based on the consensus of an expert Delphi panel, the average time needed to represent an individual in an adult criminal case ranged from 286 hours to 13.5 hours, depending on case type

• High-severity felony cases required the most time, on average: cases with a possible sentence of life without parole, 286 hours; murder cases, 248 hours; sex crimes cases, 167 hours; and other high-severity felony cases, 99 hours.

• Mid- and low-severity felony cases required an average of 57 and 35 hours, respectively.

• High- and low-severity cases for driving under the influence required 33 and 19 hours, respectively.

• High- and low-severity misdemeanor cases required an average of 22.3 and 13.8 hours, respectively.

• Probation or parole violation cases required an average of 13.5 hours.

Existing national public defense workload standards are outdated, not empirically based, and inadequate

• The 1973 National Advisory Commission on Criminal Justice Standards and Goals (NAC) standards fail to differentiate among types of felonies, giving equal weight to a burglary, a sexual assault, and a homicide.

• Using the 1973 NAC standards creates a risk of excessive workloads.

New national workload standards better reflect modern criminal defense practice and professional and ethical responsibilities

• The new standards reflect expert attorneys' experiences with current criminal defense practice, including digital discovery and forensic evidence, as well as the expanded scope of a criminal defense lawyer's obligations, including advising clients on collateral consequences.

• The new workload standards can be used to assist public defense agencies, policymakers, and other stakeholders in evaluating defender workloads.

Santa Monica, CA: RAND, 2023. 186p.

KAH Webb, SA Riley, MT Wells

Pretrial risk assessment tools are used in jurisdictions across the country to assess the likelihood of "pretrial failure," the event where defendants either fail to appear for court or reoffend. Judicial officers, in turn, use these assessments to determine whether to release or detain defendants during trial. While algorithmic risk assessment tools were designed to predict pretrial failure with greater accuracy relative to judges, there is still concern that both risk assessment recommendations and pretrial decisions are biased against minority groups. In this paper, we develop methods to investigate the association between risk factors and pretrial failure, while simultaneously estimating misclassification rates of pretrial risk assessments and of judicial decisions as a function of defendant race. This approach adds to a growing literature that makes use of outcome misclassification methods to answer questions about fairness in pretrial decision-making. We give a detailed simulation study for our proposed methodology and apply these methods to data from the Virginia Department of Criminal Justice Services. We estimate that the VPRAI algorithm has near-perfect specificity, but its sensitivity differs by defendant race. Judicial decisions also display evidence of bias; we estimate wrongful detention rates of 39.7% and 51.4% among white and Black defendants, respectively.

Cornell University Pre-publication paper: 2023. 33p,

By Daniel Richman

Even as others make cogent arguments for diminishing the work of prosecutors, work remains — cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group — judges, prosecutors and defense counsel — can provide. The (immediate) future also requires prosecutors to do more to recognize the distinctive role they can play in combating illegitimate domination.

50 Fordham Urb. L.J. 1139 (2023).

By Maresi Starzmann and Andrew Taylor

The reform prosecution movement faces a critical moment. With the recent uptick in violent crime, reform prosecutors face unprecedented attacks and calls for a return to “tough-on-crime” tactics. Those attacks rest on the false belief that criminal legal system reforms endanger public safety. To sustain the movement, reform prosecutors must build the case that their approach will make communities safer, and the Vera Institute of Justice’s (Vera’s) Reshaping Prosecution initiative is well-positioned to help them do so. Reshaping Prosecution works with prosecutors to build evidence that alternatives to incarceration offer a better path to safer communities. In doing that work, Vera centers race equity and emphasizes collaborating with communities because the path to solutions begins with the voices of those most proximate to the issues. Vera’s partnership with Wyandotte County District Attorney (DA) Mark Dupree’s office from 2019 to 2022 represented a unique pilot to center marginalized voices in prosecution reform efforts. Vera provided its traditional quantitative analysis of racial inequities to highlight

New York: Vera Institute of Justice, 2023. 38p.

By Liz Komar and Nicole D. Porter

After 50 years of mass incarceration, the United States faces a reckoning. While crime is far below its peak in the early 1990s,1 the country continues to struggle with an unacceptable amount of gun violence.2 Meanwhile, the drug war harms too many Americans and has failed to prevent fatal overdoses from reaching an all-time high.3 A great imbalance in our national approach to public safety, one that relies too heavily on the criminal legal system, has produced excessive levels of punishment and a diversion of resources from investments that would strengthen the capacity of families and communities to address the circumstances that contribute to crime. This report offers five recommendations for policymakers and community members to potentially improve safety without deepening our reliance on extreme sentencing:

Washington, DC: The Sentencing Project, 2023. 10p.

Edited by Monika Florczak-Wątor

This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges.

London; New York: Routledge, 2022. 293p.

By Philip Mullen, Clare Collins, and Katy Savage

This research was commissioned by HM Courts and Tribunals Service (HMCTS) to identify the factors preventing defendants to engage in criminal courts processes. We interviewed 38 defendants with recent criminal cases and explored how they can better be supported in various stages of courts processes, especially around legal representation, from their own perspective.

The report details how the lack of user-friendly and timely information or support with signposting create additional barriers for defendants, and how early intervention is key to foster engagement.

London: Revolving Doors, 2022. 55p.

By Beth M. Huebner, Andrea Giuffre

Investigations in Ferguson, Missouri, revealed that many individuals, particularly Black people, entered the criminal justice system for relatively minor offenses, missed court appearances, or failure to pay fines. Municipal courts were focused on revenue generation, which led to aggressive enforcement of municipal codes. Although subsequent reforms were passed, little is known about whether and how the legislative changes influenced the law-in-action in the municipal courts. Using data from qualitative interviews with St. Louis area residents and regional court actors, as well as court observations, this article documents the legal structure of municipal courts in the region after Ferguson. We address how the parochial nature of municipal courts in St. Louis County perpetuates the financial marginalization of residents through the layering of punishment, and how the state legal structure further facilitates control, even after reform.

RSF: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (1) 108-127; DOI: https://doi.org/10.7758/RSF.2022.8.1.05

By Clara Herz

Given the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime

German Law Journal (2020), 21, pp. 1625–1648 doi:10.1017/glj.2020.90

By Marie Manikis

Censure, blame and harms are central concepts in sentencing that have evolved over the years to take into account social context and experiential knowledge. Flexibility, however, remains limited as the current analysis in sentencing focuses on the offender while failing to engage with the state's contribution in creating wrongs and harms. This risks giving rise to defective practices of responsibility since the state can also contribute to their production. The following article presents a complementary and additional framework within sentencing to account for state censure, blame and harms. The framework is rooted in communicative theories of punishment that integrate a responsive understanding of censure and a relational account of responsibility.

The Cambridge Law Journal , Volume 81 , Issue 2 , July 2022 , pp. 294 - 322

by Lois M. Davis, Louis T. Mariano, Melissa M. Labriola, Susan Turner, Matt Strawn

he California County Resentencing Pilot Program was established to support and evaluate a collaborative approach to exercising prosecutorial resentencing discretion. The first of three reports, this evaluation seeks to determine how the pilot program is implemented in each of the nine participating counties and what the characteristics are of a possible candidate for resentencing.

This report describes the pilot, evaluation methods, initial findings based on stakeholder interviews, and analysis of pilot data. Qualitative interviews reveal key strengths and challenges of the pilot in its implementation. Analyses of quantitative data describe the population of individuals considered for resentencing. Together, these findings shed light on the early experiences of the nine counties implementing this important pilot program.

Key Findings

• Implementation challenges include developing eligibility criteria, acquiring and analyzing data from the California Department of Corrections and Rehabilitation (CDCR) to identify individuals who met eligibility criteria, working with the individuals to facilitate preparation of their application and supporting documents, identifying and hiring community-based organizations (CBO)s, and working with the courts to develop processes and procedures for making referrals to the courts.

• Except for a few counties, most of the DA and PD offices did not have a history of working closely together and are still developing that collaboration.

• Across the nine pilot counties, the initial cases reviewed tended to involve individuals who were over the age of 50. The controlling offense most often involved a crime against persons. Nearly half of the cases reviewed involved third-strike sentences, and nearly three-fourths of reviewed cases had a sentence enhancement present.

SANTA MONICA, CA: RAND, 2022. 77P.

by Lois M. Davis, Louis T. Mariano, Melissa M. Labriola, Susan Turner, Andy Bogart, Matt Strawn, Lynn A. Karoly

he California County Resentencing Pilot Program was established to support and evaluate a collaborative approach to exercising prosecutorial discretion in resentencing eligible incarcerated individuals. Nine California counties were selected and were provided funding to implement the three-year pilot program. Participants in the pilot include a county district attorney (DA) office and a county public defender (PD) office and may include a community-based organization in each county pilot site. The evaluation seeks to determine how the pilot is implemented in individual counties, whether the pilot is effective in reducing criminal justice involvement (e.g., time spent in incarceration and recidivism), and whether it is cost-effective.

This report documents evaluation results, focusing on the implementation of the program from September 2022 through July 2023 — the second year of the pilot program. In addition to providing a review of the pilot program and evaluation methods, the authors describe year 2 findings based on stakeholder interviews and analysis of pilot data. Qualitative interviews revealed key strengths and challenges of the pilot in its implementation. Analyses of quantitative data describe the population of individuals considered for resentencing and document the flow of cases from initial consideration through resentencing. These findings shed light on the experiences of the nine counties in implementing the pilot program during year 2.

Key Findings

• Interviews with DA and PD offices indicated overall support for the program but faced key challenges

• The PDs tended to want to play a more proactive role in defining eligibility criteria, identifying cases for consideration, and making recommendations to the courts than what the DAs envisioned.

• Personnel shortages were mentioned by multiple offices as a continuing challenge.

• Only four of the counties were working with a community-based organization.

  The pilot counties each developed their own criteria for identifying cases eligible for resentencing consideration

• Although the inclusion criteria varied somewhat across the pilot counties, overall the criteria focused on such factors as the age of the incarcerated individual, the crime committed, and the length and other details of the sentence.

• Counties indicated use of less strict criteria in this second year of implementation and were embracing flexibility in the cases they were reviewing.

  Analysis of case-level data covering the first 18 months of pilot implementation revealed important data points

• Among the 684 case reviews initiated during the reporting period, 105 cases had been referred to the court for resentencing, the DA offices had decided not to refer 321, and 258 were still under DA review.

• Of 94 cases for which courts have ruled on a resentencing motion, 91 cases have resulted in resentencing. Of the 91 resentenced individuals, 63 have been released from prison.

• Among those cases awaiting a DA decision on whether to proceed with resentencing, 72 percent have been under review more than six months.

Santa Monica, CA: RAND, 2023. 95p.

By Liz Komar, et al.

Through the lens of the successes and challenges of New York’s DVSJA, this guide explores the need for similar bills across the country (referred to as DVSJA legislation, DVSJA laws or DVSJA relief) and offers recommendations for advocates and legislators developing and implementing those laws in their own jurisdictions. Drawing from case law and the guidance of survivors, advocates, and litigators, the guide offers a model bill, which can be adapted to fit any locality. Woven throughout are the experiences of those who have applied for DVSJA relief in New York or those who would benefit from such a law should it be enacted in their state.

Specifically, the guide recommends that states enact sentencing laws for domestic violence survivors that:

1. Create broad and trauma-informed eligibility criteria

2. Develop a legal process accessible to survivors

3. Craft a trauma-informed and realistic legal standard

4. Maximize sentence reductions

The ultimate goal of these recommendations is to allow advocates to draw on lessons learned from New York’s DVSJA to strengthen efforts for survivor sentencing legislation already gaining ground across the United States.

Washington, DC: The Sentencing Project and Survivors Justice Project, 2023. 33p.

By Mugambi Jouet

The role of systemic racism in criminal justice is a growing matter of debate in modern Western democracies. The United States’ situation has garnered the most attention given the salience of its racial issues and the disproportionate attention that American society garners around the world. This has obscured major developments in Canadiansociety with great relevance to increasingly diverse Western democracies where minorities are highly over-incarcerated. In recent years, the landmark Anderson and Morris decisions recognized that the systemic racism that Black people face in Canada should be considered as mitigation at sentencing. These historic cases partly stem from the recognition of social-context evidence as mitigation for Indigenous defendants under a groundbreaking 1996 legislative reform that remains little known outside Canada’s borders. While Australia and New Zealand have also recognized certain mitigation principles for Indigenous defendants, Canada is arguably the country that is now making the most concerted effort to tackle systemic racism in criminal punishment.

Conversely, the U.S. Supreme Court rejected this approach in McCleskey v. Kemp, an influential 1987 precedent holding that statistical proof of systemic racism in sentencing is essentially irrelevant. The situation might someday change in America, as suggested by the Washington State Supreme Court’s 2018 abolition of the death penalty in State v. Gregory, which deviated from McCleskey in accepting evidence of systemic racism. However, Gregory was only decided under state law and it is too early to tell whether more American states will inch toward the developments occurring in Canada.

These ongoing shifts should be situated in a wider historical context, as they do not merely reflect modern debates about systemic racism or Canada-specific matters. This Article captures how they are the next step in the long-term, incremental evolution of criminal punishment in the Western world since the Enlightenment. For generations, the principles of individualization and proportionality have enabled judges to assess mitigation by considering a defendant’s social circumstances. Considering evidence of systemic racism or social inequality as mitigation at sentencing is a logical extension of these principles. The age-old aspiration toward humanity in criminal justice may prove a stepping stone toward tackling the over-incarceration of minorities in modern Western democracies.

New York University Review of Law & Social Change, forthcoming 2023. 60p.

By Bugmy Bar Book Committee

Launched in 2019, the Bugmy Bar Book is a free, evidence-based resource hosted on the website of the NSW Public Defenders.

The project publishes accessible summaries of key research on the impacts of the experience of disadvantage and strengths-based rehabilitation. It provides objective research across several areas of disadvantage, to support both the application and decision-making processes, when subjective information is unable to be obtained.

The project is directed by a Committee comprised of representatives of key stakeholders in the criminal justice system (including the NSW Public Defenders, NSW Office of the Director of Public Prosecutions, Aboriginal Legal Service (NSW/ACT) Limited and Legal Aid NSW), the judiciary (including the Supreme Court of NSW, District Court of NSW, Local Court of NSW, ACT Magistrates Court and NSW Judicial Commission), legal academics (including senior academics from UNSW, ANU and UTS) and members of the private legal profession. Although the project originated and is based in NSW, the resources are designed for use across all Australian jurisdictions and the committee engages with stakeholders Australia-wide.

Who is the Bugmy Bar Book For?

It aims to promote greater understanding of the impacts within the legal profession and judiciary, with the key function being to assist in the preparation and presentation of evidence to establish the application of the sentencing principles in Bugmy v The Queen (2013) 249 CLR 571.

The application of the materials in the Bugmy Bar Book can also be used in other contexts, including bail and mental health diversionary applications, various civil practice areas, coronial inquests and other inquisitorial jurisdictions.

By Chad M. Topaz, Shaoyang Ning, Maria-Veronica Ciocanel & Shawn Bushway

Race-based inequity in federal criminal sentencing is widely acknowledged, and yet our understanding of it is far from complete. Inequity may arise from several sources, including direct bias of courtroom actors and structural bias that produces racially disparate impacts. Irrespective of these sources, inequity may also originate from different loci within the federal system. We bring together the questions of the sources and loci of inequity. The purpose of our study is to quantify race-based disparate impact and differential treatment at the national level and at the level of individual federal judicial districts. We analyze over one-half million sentencing records publicly available from the United States Sentencing Commission database, spanning the years 2006 to 2020. At the system-wide level, Black and Hispanic defendants receive average sentences that are approximately 19 months longer and 5 months longer, respectively. Demographic factors and sentencing guideline elements account for nearly 17 of the 19 months for Black defendants and all five of the months for Hispanic defendants, demonstrating the disparate impact of the system at the national level. At the individual district level, even after controlling for each district’s unique demographics and implementation of sentencing factors, 14 districts show significant differences for minoritized defendants as compared to white ones. These unexplained differences are evidence of possible differential treatment by judges, prosecutors, and defense attorneys.

Published in: Humanities and Social Sciences Communications, Volume 10, Article Number 366 (2023). doi: 10.1057/s41599-023-018By Bugmy 9-5.

By Heather Harris and Stephanie Barton

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

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

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

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

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

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

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

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

San Francisco: Public Policy Institute of California, 2023. 42p.