By Kelsie Chesnut and Jennifer Peirce

  From 2019 to 2022, the Vera Institute of Justice (Vera), along with Black and Pink National, developed and conducted a large-scale survey of currently incarcerated transgender people regarding their experiences in state prisons. In 2015, Black and Pink National published a landmark survey of more than a thousand LGBTQ+ (lesbian, gay, bisexual, transgender, or queer/questioning) incarcerated people, Coming Out of Concrete Closets. The present survey provides updated information on similar issues as Black and Pink’s 2015 survey but focuses solely on transgender people. Vera and Black and Pink National are grateful to the incarcerated people who took the time to thoughtfully respond to the survey, often sharing sensitive and traumatic experiences. The survey used regular mail to reach participants, who were already connected with Black and Pink National, and this allowed people to respond in 2021–2022 despite ongoing COVID-related constraints on inperson access to prisons. This report highlights the key findings from the survey responses and open-ended comments shared by the 280 people who participated. 1 Vera and Black and Pink National codesigned all stages of this project, with input from researchers and advocates working on this topic. Vera independently managed the data collection, analysis, and production of findings included in this report, with guidance and input from Black and Pink National and an external expert research consultant.2 The goals of this report are to • share the experiences and insights of transgender people living behind bars in state prisons in their own words, • provide policymakers and people who work with incarcerated people with findings that update and expand their understanding of how transgender people in state prisons experience conditions of confinement, • improve correctional policy and practice as it relates to transgender people who are incarcerated in the United States, and  • contribute to a larger national discussion about incarceration and decarceration in a way that advances transgender justice.  

New York: Vera Institute of Justice, 2024. 96p.

By John McGhee, Scott McMillan & James Reilly

This scoping document was commissioned by the BF programme to better understand the impact of long-term imprisonment in Scotland, drawing on the expertise of SPARC. Initial background research from SPARC found that many of the issues faced by long-term prisoners in England and Wales are also faced by those in Scottish prisons. This document highlights these similarities and considers the differences. The Scottish context - On 23 May 2022 there were 1,044 prisoners serving 10 years or more in Scotland. • - This means 19% of the convicted population in Scotland were serving over 10 years compared with 16% in England and Wales. • The average sentence for murder has increased from eight to nine years in the 1970’s to nearly 20 years in 2021. • Successful parole applications in the early 2000’s were just under 30%, this has now reduced to 12%. • Progression is a major issue in Scottish prisons and 36 of 100 judicial reviews are concerned with progression or parole. - SPARC have had requests from Scottish prisoners for advocacy work to navigate the progression and parole system. - Most advocacy requests related to “critical dates” which are those dates specific and relevant to progression, availability of spaces on offence focused programmes, spaces in community testing facilities, and the misapplication of risk scoring tools. - These issues were also highlighted during SPARC’s community consultations for Glasgow University’s ‘Scotland in Lockdown’ project. - In 2018 SPARC delivered a training workshop to the Independent Prison Monitors in Scotland on the failings of the progression system. ....

London: Prison Reform Trust, 2023. 26p.

By Sophie Ellis and Alex Hewson

  Introduction It’s hard to find the right adjectives to describe the tumultuous year the prison and probation service has had. The chief inspector of prisons issued five urgent notifications (UN)—raising immediate concerns about conditions—the highest number in a single year. The prison service ran out of places, forcing the government to adopt emergency measures to hold people in police cells; release people from prison early; delay court hearings; and warn judges about the pressure on our already overcrowded prisons. Meanwhile, staff leave the service in droves, quickly burnt out by the conditions they face each day as they pick up their keys to start their shift. Prisons continue to be places of hopelessness and despair for too many people, with self-harm now higher than before the pandemic, and reaching the highest level on record for women. Whilst crisis and scandal can trigger defensiveness, they can also act as a launch pad for bold reform. The Government should seize this opportunity to show that the status quo is not working and present a positive alternative vision for our criminal justice system. One that is rooted in the things that matter to the communities that they serve—safety, fairness, effectiveness and decency—and which relies on evidence rather than rhetoric. Alex Chalk, our current Secretary of State for Justice, has to his credit begun this journey. A swift reconsideration of his predecessor’s intransigence to ending the injustice of the Imprisonment for Public Protection (IPP) sentence; reversing measures which prevented people progressing in their sentences; and introducing legislation currently before Parliament for a presumption that prison sentences of a year or less should be replaced with a suspended prison sentence. All of these are causes for celebration in a sector where the wins are few and hard fought for. As the former Governor of HMP Liverpool, I know first-hand the powerful impact that reducing prisoner numbers had on my ability to bring about much needed reform measures. Overcrowding is the single biggest barrier in providing a safe, decent and rehabilitative prison. Prisons will always be messy, complex places to live and work in, but by hitting the reset button it reduced the relentless day-to-day crisis we faced when the next full escort van turned up. Having fewer people in the prison not only reduced the flow in and out of the gates each day, but it also gave me and my team some breathing space to work through the plethora of problems we needed to fix. It unlocked the much-needed funding and focus for refurbishment to take place. It allowed us to develop a vision; to articulate our values and to see the wood for the trees. But most importantly, it allowed us—the operational experts—to shape our prison in a way that worked best for those who lived and worked there. But what happens when you have a prison system with so little slack that you can’t simply transfer 500 people to another prison down the road? We’ve witnessed the very real consequences on prisons when politicians talk about the need to “toughen up” sentences with little thought given to the implications—or to the long line of similar measures that preceded them. Governors up and down the country—good, hard working and well-intentioned leaders—must despair at how straightjacketed they are. They are expected to be omnipotent leaders—ultimately responsible when it hits the fan—but are often left feeling that they have little autonomy.    They fulfil the insatiable requests for information from higher management; they react with knee jerk responses in anticipation of events that could cause their ministers political embarrassment; and they live with the constant threat of doing something which turns out to be career limiting. In the new world, the decision-making structure has well and truly moved from the governor’s office to outside the prison......

London: Prison Reform Trust, 2024. 86p.

By Nisha Waller and Naima Sakande

In England and Wales, the requirement for a unanimous jury verdict in criminal cases was abolished in 1967, marking a significant departure from a centuries-old legal tradition. Majority verdicts are now common practice, yet no research to date explores the origins of this sudden change to the jury system. In contrast, recent research in the US uncovered a connection between the conception of majority verdicts in Louisiana and Jim Crow era law-making, finding that majority verdicts were strategically introduced to suppress the black juror vote and facilitate quicker convictions to fuel free prison labour. The US Supreme Court later outlawed majority verdicts in a case known as Ramos v. Louisiana, amid recognition of their racist origins. Adopting the critical epistemological position guiding the US research, we consider how race and class underpinned the decision to introduce majority verdicts in England and Wales. Drawing on Home Office files and other archival materials, we find that an increase in eligible jurors from different racial and class backgrounds led to a perceived decline in the ‘calibre’ of jurors – reflective of wider public anxieties about Commonwealth immigration, Black Power and white disenfranchisement. We conclude that a desire to dilute the influence of ‘coloured’ migrants on juries contributed to the introduction of majority verdicts in England and Wales.

Race & Class, online first, 2024.

By User Voice

This report brings forth the experiences of people who are diagnosed and self-diagnose as neurodivergent. As the health and criminal justice sectors are learning more about the experiences of neurodivergent service users, User Voice wants to bring their voices front and centre, and to give them real agency. Their quotes are unedited and based on their personal experiences. As part of this study User Voice interviewed 104 service users across 11 prisons nationwide between September 2022 and February 2023. To gain as full a picture as possible, User Voice additionally surveyed 250 neurodivergent service users about their experiences in the criminal justice system. All interviewed or surveyed service users were either diagnosed or self-diagnosed as neurodivergent. To provide as holistic a picture as possible, User Voice spoke to service users about their lives before they were involved in the criminal justice system. In early life, most service users we spoke to came from lower socio-economic backgrounds, over half had experienced abuse and neglect, and one third had been in care. At a crisis point, service users often found that they did not have the needed support networks, and therefore as a result, many had turned to alcohol and drugs which then had led to a life of criminality. Many told us that due to their neurodiversity, they are easily manipulated, coerced, groomed, or susceptible to peer pressure. This report shines a light on the lack of support for people who end up in the criminal justice system. Half of the service users who took part in this report told us they had been diagnosed before they turned 17 years old. Nine had been diagnosed between ages 17 – 26, and 17 when they were older than 27 years. None of them had been told how to live with their conditions. This study finds a criminal justice system ill-prepared to help neurodivergent people. In police custody, only 2 service users had adjustments made around their neurodiversity, whereas in prison, 15 said adjustments had been made. Because of lack of assessments and screening in prisons, we found that only few were receiving the support they needed. We believe that lived experience has a crucial part to play in the formulation of policy and practice in every sector, whether it be criminal justice, health, or education. To benefit those who are neurodivergent, we advocate for more peer support as well employing staff with lived experience in neurodiversity. This would guarantee that services and resources are tailored to the needs of neurodivergent service users. As prison populations grow, a commitment to more neurodiversity qualified health care staff is a must. The prison population would benefit from clinical psychologists in prison as well as better management of medication. This report is a snapshot of people’s lived experience. To drive true reform, we hope that more resources are given to projects that share the voices and experiences of neurodivergent people. To stop neurodivergent people ending up in the criminal justice system, we need to learn from those who have been there.

London: User Voice, 2023. 41p

By Kelly Lyn Mitchell

  When a person is charged and convicted of a criminal offense in Minnesota, a number of consequences flow from that conviction. The person may experience arrest and booking into the county jail. They may have to post bond or bail to gain pretrial release from jail while the case is pending. And if convicted, they may be sentenced to a period of incarceration in prison or jail or they may be ordered to serve a period of time on probation, during which they will have numerous court-ordered conditions to comply with. Each of these touchpoints with the criminal justice system may incur additional challenges for the person, such as potential loss of employment, and impacts on family members who may have to post bail or oversee care for their children. One area that is less visible is the financial side of the experience. There are three different types of financial obligations a person may be required to pay following conviction for a criminal offense: fines, restitution, and fees (Table 1). Fines serve as a form of punishment for the offense committed, while also generating revenue for the system. Restitution, on the other hand, is a financial obligation that aims to compensate the victim for any losses sustained as a result of the crime. Fees are different, in that their primary function is revenue generation. Fees are financial obligations that are used to fund specific aspects of the criminal legal system, such as public defender representation, or to provide funding for the state, county, or city’s general budget

Minneapolis: Robina Institute of Criminal Law and Criminal Justice, 2023. 20p.

By Sarah Shannon

Georgia leads the nation in probation supervision, which has been the subject of recent legislative reforms. Probation supervision is the primary mechanism for monitoring and collecting legal financial obligations (LFOs) from people sentenced in Georgia courts. This Article analyzes how monetary sanctions and probation supervision intersect in Georgia using quantitative data from the Department of Community Supervision as well as interviews with probationers and probation officers gathered as part of the Multi-State Study of Monetary Sanctions between 2015 and 2018. Several key findings emerge: (1) there is substantial variation between judicial districts in the amount of fines and fees ordered to felony probationers in Georgia, with fines and fees in rural areas much higher than those in urban areas; (2) probationers express fear of incarceration solely for lack of ability to pay; (3) probation officers consider collecting LFOs as a distraction from their true mission of public safety; and (4) both probationers and probation officers question the purpose, effectiveness, and fairness of monetary sanctions in Georgia. This Article concludes with a discussion of reforms to date and further options for reform based on the findings from this research. 

Georgia Law Rev. 2020 ; 54(4): 1213–1234 

By Samuel Norris and Evan K. Rose

Many jurisdictions levy sizable fines and fees (legal financial obligations, or LFOs) on criminal defendants. Proponents argue LFOs are a “tax on crime” that funds courts and provides deterrence; opponents argue they do neither. We examine the fiscal implications of lowering LFOs. Incentives to default generate a “Laffer” curve with revenue eventually decreasing in LFOs. Using detailed administrative data, however, we find few defendants demonstrably on the right-hand side of the curve. Those who are tend to be poor, Black, and charged with felonies. As a result, decreasing LFOs for the average defendant would come at substantial cost to governments.

NBER Working Papers 31806, Cambridge, MA: National Bureau of Economic Research, Inc., 2023. 39p.

By Ebony L. Ruhland, Amber A. Petkus, Nathan W. Link, Jordan M. Hyatt, Bryan Holmes, and Symone Pate

Abstract:

The assessment and collection of monetary sanctions (fines, fees, and restitution) have become a common element of the U.S. criminal justice system, especially in community corrections. Although the application of monetary sanctions is often dictated by state-level legislation, court rules, and agency policy, little research has sought to organize and systematically examine a set of these policies to compare them across several community corrections contexts more broadly. As such, this study fills a gap in the literature by using thematic content analysis to examine legislative policies governing the use of monetary sanctions in six states from across the United States. Laws and policies regarding the assessment, waiver, and collection of monetary sanctions utilized by agencies of varying size and jurisdictional scope were considered to identify common themes. We conclude with a discussion of whether the policies and laws examined align with rehabilitative and punitive goals of community supervision and highlight emerging opportunities for research and policy reform.

Journal of Contemporary Criminal Justice, 37(1), 108-127.

By Breanne Pleggenkuhle bpleggenkuhle@siu.edu, Kimberly R. Kras, and Beth M. Huebner

Legal financial obligations (LFOs) are routinely assessed by the courts and corrections agencies. Yet, little is known about how individuals under correctional supervision experience and perceive legal debt. Understanding perceptions of LFOs is critical as research suggests that individuals who believe that criminal justice sanctions are fair and just are more likely to perceive the system as legitimate and comply. The current study examines in-depth interview data with individuals on probation or parole to understand perspectives of LFOs and what factors may condition these views. The results suggest that participants’ views are quite varied—expressing that they deserve some level of financial punishment, particularly in restitution cases, but they question additional costs that are not directly linked to the circumstances of the case, such as supervision fees, that exacerbate a perceived experience of double jeopardy or contradict the perceived purpose of the monetary assessment. Subgroup analyses suggest that individuals with a conviction for a sexual offense have secondary financial sanctions that deepen perceptions of inequities in the system.
Journal of Contemporary Criminal JusticeVolume 37, Issue 1, February 2021, Pages 88-107

By Brittany Friedman

The expansion of monetary sanctions constitutes what Beckett and Murakawa describe as the “shadow carceral state,” where covert penal power is expanded through institutional annexation by blending civil, administrative, and criminal legal authority. A growing body of work on monetary sanctions has begun to dissect covert penal power by tracing increased civil and administrative pipelines to incarceration, civil financial alternatives to criminal sanctions, and innovations to generate criminal justice revenue. However, institutional annexation and innovation in the form of contemporary pay-to-stay practices remain understudied and undertheorized. In this article, I first examine statutes and practices to theorize pay-to-stay as exemplary of the shadow carceral state—an outcome of legal hybridity and institutional annexation legitimated using the legal construction of “not punishment,” which frames monetary sanctions as non-punitive. Second, I expand Beckett and Murakawa’s framework to argue pay-to-stay practices reveal how the shadow carceral state compounds or initiates the civil death of those charged. I broaden our notion of civil death to include financial indebtedness to the shadow carceral state. I suggest covert penal power expands through the accumulation of resources extracted from people marked for civil death through criminal justice contact. Finally, I conclude that monetary sanctions such as pay-to-stay reveal how the shadow carceral state expands covert penal power through necrocapitalism, meaning institutional accumulation occurs through dispossession and the subjugation of life to the power of death.

Journal of Contemporary Criminal JusticeVolume 37, Issue 1, February 2021, Pages 66-87

By lya Slavinski and Kimberly Spencer-Suarez

Over the last several decades, with the rise of mass incarceration in the United States and its steep costs, governments at the federal, state, and local levels have dramatically ramped up monetary punishment. Monetary sanctions are now the most common type of criminal penalty in the United States. The growth of fines, fees, and other legal financial obligations (LFOs), and the ensuing legal debt, reflect a shifting of the system’s costs onto its primarily low-income and indigent subjects. This study provides an exploration of previously underexamined ways in which monetary sanctions impose distinct burdens on the poor. Interviews with 121 defendants in Texas and New York, along with courtroom observations, demonstrate that criminal legal debt is particularly challenging for people with low incomes in three meaningful ways. First, systems set up to handle indigency claims do not adequately address the needs or complex individual circumstances of those who simply do not have the ability to pay. Oftentimes, alternatives are unavailable or statutorily prohibited. Second, the lack of alternatives to payment lead to compromising situations, which then compel indigent defendants to make difficult choices about how to allocate scant resources. Finally, being encumbered with fines and fees and participating in alternatives like community service comes with taxing time requirements that can prove uniquely challenging for those who are poor. These three findings lead us to propose a series of policy recommendations revolving around three key themes: (a) enhancement of indigency procedures, (b) equity in monetary sanctions, and (c) alleviating burdens by improving accessibility.
Journal of Contemporary Criminal Justice, 37(1), 45-65. 2021.

By U.S. Department of Justice

  States, localities, courts, and prosecutor offices are among the entities that levy legal system fines and fees. The categories of fines and fees, affiliated costs, and discretion to impose or waive them, can vary greatly between, and even within, jurisdictions. However, there are certain common features. “Fines,” as utilized in this report, refers to financial penalties that are imposed upon criminal conviction, including misdemeanor and felony convictions, or upon juvenile delinquency adjudication, or when a judgment is entered for a civil infraction. A civil infraction includes citations that often can be paid in lieu of going to court, such as some quality-of-life offenses, traffic tickets, and municipal property code violations, among others. Fines are often imposed as a form of punishment or deterrence.3F 4 “Fees,” as utilized in this report, refers to itemized, financial assessments that are imposed on litigants to fund court or other government functions. They can arise at any stage of legal system involvement. For example, pre-trial litigants may face clerk fees, fees for requesting a public defender, filing fees, fees for using a public defender, or fees for entering a diversion program. Litigants who exercise their right to a trial may be assessed jury fees or fees for using an expert witness. In addition, individuals who are incarcerated may face in-custody fees for room and board, phone and email services, medical co-payments, library access, and basic hygiene necessities. Upon release, or as a condition of pre-trial release or diversion, individuals may face fees for probation supervision, drug testing, entrance into a DNA database, electronic monitoring, or drug and alcohol classes. Further, if a defendant is a minor, many jurisdictions will impose these fees on the child’s parent(s) or legal guardian(s). Unlike fines, fees are often imposed as mechanisms for funding criminal justice systems and other government functions.4F 5 Additional financial obligations may result from the assessment and enforcement of fines and fees themselves: processing fees; penalties for late payments; interest; fees for paying through a payment plan; fees for paying online; driver’s license reinstatement fees; and third-party debt collection fees, among others. Some courts also impose fees to fund specific programs, like facilities upkeep. This report treats these additional charges as “fees,” although they are often referred to as “surcharges.”

In this report, “assessment” refers to the amount of the fines or fees levied against an individual litigant, or the process to make such determination. “Enforcement” refers to the processes that jurisdictions use to compel litigants to pay fines and fees that have been assessed against them. Enforcement mechanisms may range from written warnings to financial penalties, wage garnishment, license and permit suspensions, and even arrest and incarceration.5F 6 Notably, this report focuses on fines and fees assessed against litigants accused by a government entity of criminal offenses, delinquent acts, or civil infractions. There are several categories of legal financial obligations (“LFOs”) that are outside the scope of this report, including restitution, bail bonds, and fees in civil cases that are not initiated by a government entity. 

Washington, DC: U.S. Department of Justice,  2023. 73p.

By The Sycamore Institute

Fees and fines are an important part of Tennessee’s criminal justice system – both to punish criminal acts and fund an essential government function. This report dives deeper into one item on our list of potential policy options to address the side-effects of fees, fines, and other legal financial obligations (LFOs). Specifically, it looks at how a person’s ability to pay fees and fines factors into what they ultimately owe and highlights several options for state-level policy change. Prior reports walk through the 360+ LFOs people can accrue in the state’s criminal justice system, their effects on different stakeholders, the revenue they generate for our state and local governments, and opportunities to improve data collection. Background People can accrue a multitude of fees and fines as they move through Tennessee’s criminal justice system (Figure 1). The amounts owed depend on the offense, the actors involved, and a case’s ultimate outcome, but they can add up quickly. (1) While publicly available data is limited, it is not unusual for total debts to reach several thousand dollars or more. (2) KEY TAKEAWAYS • The effect that fees, fines, and other legal financial obligations have on people required to pay them (and the justice system overall) largely depends on their ability to pay them. • A patchwork of provisions in Tennessee code offers wide flexibility but little consistency in how courts should address defendants’ ability to pay fees and fines. • Judges across the state vary in when and how they determine a defendant’s ability to pay. • The judicial discretion baked into current law recognizes that each case is unique but can also generate unequal outcomes that diverge by jurisdiction and/or defendants’ economic status. • Options to address these challenges include gathering better data on current practices and making state law more consistent. Policymakers could also consider graduated fines. 

Nashville: Sycamore Institute, 2021. 21p.

By Julius Yam 

Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question,the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the ‘formal legal position’ while blindfolding themselves to extra-legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism 

Modern Law Review Limited.(2023) 00(0) MLR 

By Colette Barry, Chalen Westaby, Mark Coen, Niamh Howlin

Judges are required to suppress and manage their own emotions as well as those of other court users and staff in their everyday work. Previous studies have examined the complex emotional labour undertaken by judges, but there is limited research on the emotion management performed by judges in their interactions with jurors. Drawing on a qualitative study of judge–jury relations in criminal trials in Ireland, we illustrate how judges learn and habituate emotional labour practices through informal and indirect processes. Judges described managing their emotions to demonstrate impartiality and objectivity. Their accounts also underline the importance of balancing presentations of neutrality with empathy, as well as being mindful of the potential emotional toll of jury service on jurors.

Journal of Law and Society Volume 50, Issue 4 p. 477-499

By Sarah Lageson & Robert Stewart

Criminal records are routinely used by employers and other institutional decision-makers who rely on their presumed fidelity to evaluate applicants. We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private-sector background checks (one regulated and one unregulated by federal law), and qualitative interviews. Based on our analysis, private-sector background checks are laden with false-positive and false-negative errors: 60 percent and 50 percent of participants had at least one false-positive error on their regulated and unregulated background checks, and nearly all (90 percent and 92 percent of participants, respectively) had at least one false-negative error. We define specific problems with private-sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives. Accompanying qualitative interviews show how errors in background checks limit access to social opportunities ranging from employment to education to housing and violate basic principles of fairness in the legal system.

United States, Criminology. 2024, 30pg

By Somjen Frazer, Richard Saenz, Andrew Aleman, and Laura Laderman

OUR VOICE IS OUR POWER: In 2022, Lambda Legal, in partnership with Black and Pink National, launched the Protected and Served? community survey. With this project, we aimed to learn more about the experiences of lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ+) people and people living with HIV with the criminal legal system, to assess these communities’ levels of trust in government institutions, and to create a new resource for community members, advocates, policymakers, and researchers for LGBTQ+ and HIV liberation.

This report describes the findings of Protected and Served?. In addition to asking structured questions that provide a quantitative (numerical) account of the participants’ experiences, the survey also asked for qualitative data (open-ended questions); these answers were analyzed systematically, and the qualitative findings are included throughout the report.1 Protected and Served? focuses on the widespread harm caused to LGBTQ+ people and people living with HIV by the criminal legal system, including the adult carceral system, immigration system, juvenile systems, the courts, and schools. The report also examines intersectional disparities within these impacted groups of people.

Lambda Delta, 2022. 82p.

By: Kristen DeVall, Christina Lanier, and Lindsay J. Baker

The monograph has continued the long-standing tradition of providing a detailed profile of the treatment court field within the United States. Especially noteworthy is that the data enable the authors to monitor trends and highlight similarities and differences in the findings over time. The monograph also provides a summary of the most recent scholarly literature on treatment courts. Summaries of the extant literature for each type of treatment court include an overview of the history and structure, best practice standards, guiding principles, effectiveness and cost-benefit findings, and directions for future research.

Wilmington, NC: National Drug Court Resource Center 2022. 36p.

By Paul Heaton

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process.1 This new evidence calls into question longstanding approaches to managing pretrial risk that provide limited due process protection and emphasize cash bail. Making appropriate decisions about who to release pretrial and under what conditions requires an understanding of the impacts of particular bail requirements. For example, for a given defendant, how would their risk of failure to appear (“FTA”) or future criminal activity change if they were subjected to condition A (which might include preventative detention) versus condition B (which might include an alternative to detention, such as text message reminders of scheduled court appearances)? Armed with such information, decisionmakers could appropriately balance society’s dual interest in preserving public safety and holding the accused accountable with defendants’ liberty interests. However, until recently, the actual evidence necessary to analyze the trade-off described above has been virtually nonexistent, leading judges and magistrates to rely on a combination of personal experience (possibly including conscious or unconscious bias), heuristics, and local norms in formulating their bail decisions. One reason it has been so difficult to develop good evidence of the effects of pretrial detention is because the bail system, when operating as intended, sorts defendants in a manner that limits the value of the outcome data it produces for demonstrating whether and how bail conditions matter. In general,  because bail conditions are typically assigned based on perceived defendant risk, if we observe elevated violation rates for defendants with condition A versus condition B, it is difficult to determine empirically whether this reflects an adverse causal effect of condition A or simply the fact that those assigned condition A were different from those assigned condition B to begin with. For example, proponents of cash bail often cite low FTA rates among those released with assistance from commercial bonding agents and argue from such statistics that private bondsmen are a necessary component of the system to manage nonappearance risk.2 However, comparing FTA rates for those with and without commercial sureties is misleading. To maximize profits, commercial operations have an incentive to accept only clients who are at low risk of nonappearance in the same way that an auto insurer would make money by identifying and then insuring only the safest drivers.3 Thus, low FTA rates might simply reflect defendant sorting and tell policymakers little about commercial sureties’ effectiveness. The new generation of pretrial detention studies addresses this difficulty and provides a much stronger footing on which to base legal decisions and criminal justice policy. Recent studies improve upon past work in at least three respects. First, they make use of large administrative datasets, typically involving the near universe of criminal offenses within a particular jurisdiction, allowing researchers to describe the functioning of the criminal justice system as a whole rather than generalizing from a few specific incidents or cases. Second, they carefully consider the problem of differentiating correlation from causation, making use of natural experiments to measure the causal effects of detention and resolving the sorting problem described above. Finally, they consider a broader range of outcomes, focusing not just on the resolution of the case at hand, but on long-term ramifications, such as future criminal activity, earnings, and unemployment. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention also reduces future employment and access to social safety nets. This growing evidence of pretrial detention’s high costs should give impetus to reform efforts that increase due process protections to ensure detention is limited to only those situations where it is truly necessary and identify alternatives to detention that can better promote court appearance and public safety.   

United States, North Carolina Law Review. 2020, 11pg