By The Civic Federation

In preparation for the elimination of cash bail beginning in January 2023, the Illinois Supreme Court Pretrial Practices Implementation Task Force set out to measure the financial impact this policy change will have on counties throughout the State of Illinois, as well as on circuit court clerks who will no longer retain up to 10% of bond deposits as bond processing fees. In a first of-its-kind comprehensive analysis, this report provides information about bond payments collected and disbursed in criminal cases based on data from 96 of the 102 counties in Illinois. The primary purpose of the analysis was to identify how much money counties across Illinois collect and process annually in bond payments, and how circuit court clerks distribute those bond amounts. The report focuses on the amount of bond payments applied, which are payments processed and disbursed at the conclusion of a criminal case, as opposed to bond payments collected at the time of pretrial release. Bond payments are applied to a variety of purposes at the conclusion of a criminal case, including fines, fees, assessments, court costs, restitution, and refunds to the person who paid the bond.

Chicago: Civil Federation, 2022. 37p.

By Bernadette Rabuy and Daniel Kopf

In addition to the 1.6 million people incarcerated in federal and state prisons, there are more than 600,000 people locked up in more than 3,000 local jails throughout the U.S. Over 70 percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent.

One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off. With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee that they will attend future court hearings. If the defendant is unable to come up with the money either personally or through a commercial bail bondsman, they can be incarcerated from their arrest until their case is resolved or dismissed in court.

Northampton, MA: Prison Policy Institute, 2016. 22p.

By Scott M. Stringer, Office of the New York City Comptroller

A basic principle of the American justice system is that all people are innocent until proven guilty, and that defendants should not be unnecessarily punished or detained before a finding of guilt. However, the bail system in New York City subjects tens of thousands of people each year to punitive personal and financial costs prior to conviction (or exoneration). In general, after a person is arrested and charged with a crime in New York City, they appear in court and face a judge, who decides whether to release the accused, set bail, or hold the person in custody. In many cases, judges in New York City release the defendant on a simple promise to appear for their next court date. However, when a judge decides to impose money bail conditions, the defendant is likely to spend at least some time in jail – often for the sole reason that they do not have the money needed to post bail immediately and must raise it from friends and family, or must navigate the slow, inefficient commercial bail system. At a time when the City is focused on reducing the jail population in order to close the correctional facilities on Rikers Island, ending a system that results in the unnecessary, unproductive, and expensive detention of people prior to a conviction must be prioritized.

New York: New York City Comptroller, 2018. 43p.

Edited by Mikkel Jarle Christensen, Kjersti Lohne and Magnus Hörnqvist

This book critically investigates Nordic criminal justice as a global role model. Not taking this role for granted, the chapters of the book analyse how Nordic approaches to criminal justice were folded into global contexts, and how patterns of promotion were built around perceptions that these approaches also had a particular value for other criminal justice systems. Specific actors, both internal and external to the region itself, have branded Nordic criminal justice as a form of ‘penal exceptionalism’ associated with human rights, universalistic welfare and social cohesion. The book shows how building and using the brand of Nordic criminal justice allowed stakeholders to champion specific forms of crime control across a variety of criminal justice areas in both domestic and international settings. The book will be of interest to scholars and students of criminal justice, international law and justice, Nordic and Scandinavian studies, and more widely to the social sciences and humanities.

London; New York: Routledge, 2023. 201p.

By Durrel Douglas

Every year, hundreds of thousands of eligible incarcerated voters are unable to cast their ballot due to misinformation, institutional bureaucracy and de-prioritization among government officials. This advocacy brief highlights strategies to improve ballot access for incarcerated people who are legally eligible to vote.

Washington, DC: The Sentencing Project, 2022. 6p.

By Wendy Sawyer

This report examines a frequently overlooked part of the dysfunctional money bail system in the United States.

The image of the bail bondsman who brings fugitives to justice is a familiar and powerful one; unfortunately, it’s more fiction than fact. In this report, we explain why the central tenet of the industry — that “it provides a public service at no cost to the taxpayer” — is a lie that the industry uses to defend its profitable position in the American criminal legal system. In reality, bail bond companies and their deep-pocketed insurance underwriters are almost always able to avoid accountability when they fail to do their one job — to ensure their clients’ appearance in court. The result? They get richer, defendants get poorer, and local law enforcement does their job for them, returning defendants to court on the taxpayer’s dime.

When their clients do not appear in court, bail companies are supposed to fulfill their obligations and pay the “forfeited” bail bonds. But journalists and local government officials around the country have independently discovered that their particular city or county is owed thousands or even millions from bond agents for unpaid bail bonds that have been ordered forfeit. Many of these jurisdictions have yet to put together that this is not simply a local problem, but a systemic problem with commercial money bail — and one that has been intentionally created by the bail industry to protect its profits.

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  This report brings together evidence from jurisdictions around the country, as well as from previous research, to show that the system is dysfunctional by design, benefitting the commercial bail bond industry far more than its clients or the public. Every bail company’s primary goal is to maximize their own returns, and paying a client’s bond when he or she fails to appear in court runs contrary to that goal. As this report shows, bail companies will not pay forfeitures unless they are forced, and forcing these well-resourced companies to pay what they owe costs counties a great deal of time and money — especially when the bail industry continues to lobby for and defend the legal loopholes that allow them to avoid accountability.

Northampton, MA: Prison Policy Institute, 2022.

Edited by Andrew Ashworth and Martin Wasik

The Oxford Monographs on Criminal Law and Justice series covers all aspects of criminal law and procedure including criminal evidence. The scope of the series is wide, encompassing both practical and theoretical works.

This volume is a thematic collection of essays on sentencing theory by leading writers. The essays consider several issues affecting the discipline including the underlying justifications for the imposition of punishment by the State, areas of sentencing policy that have given rise to particular difficulty, such as the sentencing of drug offenders, the rationale for discounting sentences for multiple offenders, the existence of special sentencing for young offenders, and cases where the injury done to the victim is of a different magnitude from what might have been expected, and includes various questions about the unequal impact on offenders of different sentencing measures.

This volume is dedicated to Professor Andrew von Hirsch, whose continuing work on sentencing theory provided the stimulus for the collection.

Oxford, UK: Oxford University Press, 1998. 310p.

By Andrew Von Hirsch

In examining the conflict between the just desserts and selective incapacitation theories of sentencing, this book argues that an ethical sentence must be proportional and just, requiring that any incapacitation strategy in sentencing should focus on crime categories rather than particular offenders.

After reviewing the evolution of the debate surrounding the two sentencing strategies -- one which focuses on past crimes and the other which addresses the risk of future crimes -- the discussion turns to the use of sentencing guidelines, which are favored by both dessert and incapacitation proponents, but for different purposes. An analysis of the just desserts theory then explains why and how punishments should be proportionate to the severity of crimes already committed. Also considered are the gauging of crime seriousness, the weighting of current and previous convictions, and the fixing of starting points when constructing a penalty scale. The critique of selective incapacitation sentencing reviews recent research on career criminals and demonstrates limitations in predicting serious criminality. Moral objections to sentencing offenders primarily for their expected future crimes are noted. The book concludes that the only way to meet the standard of proportionality and justice is to sentence offenders by crime categories rather than by predictions of future criminality for particular offenders. The appendixes discuss false positives in predicting criminality and Minnesota's sentencing guidelines. A subject index and a 200-item bibliography are provided.

Piscataway, NJ; Rutgers University Press, 230. 1985

By Roger Grimshaw

Imprisonment for Public Protection (IPP) has memorably been described by a former Supreme Court Judge, Lord Brown, as “the greatest single stain on our criminal justice system”.

The present report explores some of the main reasons for that assessment. It is a compilation and review of the available evidence about the psychological impacts of the sentence, covering:

Pre-existing conditions affecting many subjected to the IPP sentence

Feelings of uncertainty and helplessness the sentence provokes

The psychological obstacle course those subject to the IPP sentence are expected to negotiate

The long-term effects of the sentence

The persistence of anxiety, even following release and resettlement

London: Center for Crime and Justice Studies, 2022. 36p.

By Human Impact Partners

Around 482,000 people in the US are incarcerated before they have even been convicted of the charges against them — and 90% remain incarcerated simply because they can’t afford to pay the bail amount set for them.

While money bail is theoretically meant to ensure that people return to court for their trial, research in places that have already ended the practice of setting money bail shows that 9 out of 10 people still return to court on their own.

Because of the inequitable application of policies that criminalize activities associated with poverty and other forms of marginalization, pretrial incarceration disproportionately impacts people who are historically and structurally marginalized. People who are undocumented also face particular harm due to the interconnected nature of the systems of incarceration and immigration enforcement.

Oakland, CA: Human Impact Partners, 2020. 52p.

By Elizabeth Berger and Kent S. Scheidegger

In response to increasing concerns about jail and prison overcrowding, many officials and legislatures across the U.S. have undertaken different efforts aimed at reducing the prison population, such as reduced sentence lengths and early release of prisoners. Thus, there is currently a high degree of public interest regarding how these changes in policy might affect recidivism rates of released offenders. When considering the research on the relationship between incarceration and recidivism, many studies compare custodial with non-custodial sentences on recidivism, while fewer examine the impact of varying incarceration lengths on recidivism. This article provides a review of the research on the latter. While some findings suggest that longer sentences may provide additional deterrent benefit in the aggregate, this effect is not always consistent or strong. In addition, many of the studies had null effects, while none of the studies suggested a strong aggregate-level criminogenic effect. Overall, the literature on the impact of incarceration on recidivism is admittedly limited by important methodological considerations, resulting in inconsistency of findings across studies. In addition, it appears that deterrent effects of incarceration may vary slightly for different offenders. Ultimately, the effect of incarceration length on recidivism appears too heterogenous to be able to draw universal conclusions. We argue that a deepened understanding of the causal mechanisms at play is needed to reliably and accurately inform policy.

San Francisco: Criminal Justice Legal Foundation, 2021. 36p.

By R. D. Mackay

Mental condition defences have been used in several high-profile and controversial criminal trials in recent years. indeed, mental abnormality is increasingly an important yet complex source of defence within the criminal trial process. The author offers a detailed critical analysis of those defences within the Criminal Law where the accused relies on some form of mental abnormality as a source of defence. Topics covered include: the defences of automatism, insanity, diminished responsibility, and infanticide; self-induced incapacity; and the doctrine of fault. It also includes a chapter on unfitness to plead, which although not a defence has been included because of its important relationship to mental disorder within the criminal process. Drawing upon a wide variety of legal, psychiatric, and philosophical sources, this is a timely contribution to a controversial and complex topic.

Oxford, UK; New York: Oxford University Press, 1996p. 278p.

Edited by Antony Duff

Five preeminent legal theorists tackle a range of fundamental questions on the nature of the philosophy of criminal law. Their essays explore the extent to which and the ways in which our systems of criminal law can be seen as rational and principled. The essays discuss some of the principles by which, it is often thought, a system of law should be structured, and they ask whether our own systems are genuinely principled or riven by basic contradictions, reflecting deeper political and social conflicts

Cambridge, UK: Cambridge University Press, 1998. 272p.

Edited by Neil Boister and Robert J. Currie

Certain types of crime are increasingly being perpetrated across national borders and require a unified regional or global response to combat them. Transnational criminal law covers both the international treaty obligations which require States to introduce specific substantive measures into their domestic criminal law schemes, and an allied procedural dimension concerned with the articulation of inter-state cooperation in pursuit of the alleged transnational criminal.

The Routledge Handbook of Transnational Criminal Law provides a comprehensive overview of the system which is designed to regulate cross border crime. The book looks at the history and development of the system, asking questions as to the principal purpose and effectiveness of transnational criminal law as it currently stands. The book brings together experts in the field, both scholars and practitioners, in order to offer original and forward-looking analyses of the key elements of the transnational criminal law.

London: Routledge, 2015. 482p.

By Andrew Ashworth

Written by Andrew Ashworth, a well-known expert in the field of criminal law, this book offers a set of essays, old and new, that examine the positive obligations of individuals and the State in matters of criminal law. The centerpiece is a new, extended essay on the criminalization of omissions - examining the duty to act that is imposed upon individuals and organizations by the criminal law, and assessing their moral and social foundations. Alongside this is another new essay on the State's positive obligations to put in place criminal laws to protect certain individual rights. Introducing the volume is Ashworth's much-cited essay on criminalization: Is the Criminal Law a Lost Cause? The book sheds new light on contemporary arguments about the proper boundaries of the criminal law, not least by exploring the justifications for imposing positive duties (reinforced by the criminal law) on individuals and their relation to the positive obligations of the State.

Oxford, UK; Portland, OR: Hart Publishing, 2013. 233p.

Edited by Julian V Roberts and Lucia Zedner

Celebrating the scholarship of Andrew Ashworth, Vinerian Professor of English Law at the University of Oxford, this collection brings together leading international scholars to explore questions of principle and value in criminal law and criminal justice. Internationally renowned for elaborating a body of principles and values that should underpin criminalization, the criminal process, and sentencing, Ashworth's contribution to the field over forty years of scholarship has been immense. Advancing his project of exploring normative issues at the heart of criminal law and criminal justice, the contributors examine the important and fascinating debates in which Ashworth's influence has been greatest.

The essays fall into three distinct but related areas, reflecting Ashworth's primary spheres of influence. Those in Part 1 address the import and role of principles in the development of a just criminal law, with contributions focusing upon core tenets such as the presumption of innocence, fairness, accountability, the principles of criminal liability, and the grounds for defences. Part 2 addresses questions of human rights and due process protections in both domestic and international law. In Part 3 the essays are addressed to core issues in sentencing and punishment: they explore questions of equality, proportionality, adherence to the rule of law, the totality principle (in respect of multiple offences), wrongful acquittals, and unduly lenient sentences. Together they demonstrate how important Ashworth's work has been in shaping how we think about criminal law and criminal justice, and make their own invaluable contribution to contemporary discussions of criminalization and punishment.

Oxford, UK: Oxford University Press, 375p.

By Reid Griffith Fontaine

In American criminal law, if a defendant demonstrates that they lack certain psychological capabilities, they may be excused of blame and punishment for wrongdoing. However, criminal defense law often fails to consider the developmental science of individual differences in ability and functioning that may inform jurisprudential issues of rational capacity and responsibility in criminal law. This book discusses the excusing nature of a range of both traditional and nontraditional criminal law defenses and questions the structure of these defenses based on scientific findings from social and developmental psychology. This book explores how research on individual differences in the development of social perception, judgment, and decision making explain why some youths and adults develop psychological tendencies that favor criminal behavior, and considers how developmental science can guide the understanding of criminal excuses and affirmative defense law.

Cambridge, UK; New York: Cambridge University Press, 2012. 282p.

By R.A. Duff

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication.

Oxford, UK: Oxford University Press, 1997, 448p.

By Jeremy Horder

A number of jurisdictions world-wide have changed or are considering changing their homicide laws. Important changes have now been recommended for England and Wales, and these changes are an important focus in this book, which brings together leading experts from jurisdictions across the globe — England, Wales, the US, Canada, France, Germany, Scotland, Australia, Singapore, and Malaysia — to examine key aspects of the law of homicide. Key areas include the structure of the law of homicide and the meaning of fault elements. For example, the definition of murder, or its equivalent, is very different in France and Germany when compared to the definition used in England and Wales. French law, like the law in a number of US states, ties the definition of murder to the presence or absence of premeditation, unlike the law in England and Wales. Unlike most other jurisdictions, German law makes the killer's motive, such as a sadistic sexual motive, relevant to whether or not he or she committed the worst kind of homicide. England and Wales are in a minority of English-speaking jurisdictions in that these two countries do not employ the concept of 'wicked' recklessness, or of extreme indifference, as a fault element in homicide. Understanding these often subtle differences between the approaches of different jurisdictions to the definition of homicide is an essential aspect of the law reform process, and of legal study and scholarship in criminal law. Every jurisdiction tries to learn from the experience of others.

Oxford, UK: Hart Publishing, 2007. 265p.

By Cody Tuttle

I test for racial disparities in the criminal justice system by analyzing abnormal bunching in the distribution of crack-cocaine amounts used in federal sentencing. I compare cases sentenced before and after the Fair Sentencing Act, a 2010 law that changed the 10-year mandatory minimum threshold for crack-cocaine from 50g to 280g. First, I find that after 2010, there is a sharp increase in the fraction of cases sentenced at 280g (the point that now triggers a 10-year mandatory minimum), and that this increase is disproportionately large for black and Hispanic offenders. I then explore several possible explanations for the observed racial disparities, including discrimination. I analyze data from multiple stages in the criminal justice system and find that the increased bunching for minority offenders is driven by prosecutorial discretion, specifically as used by about 20-30% of prosecutors. Moreover, the fraction of cases at 280g falls in 2013 when evidentiary standards become stricter. Finally, the racial disparity in the increase cannot be explained by differences in education, sex, age, criminal history, seized drug amount, or other elements of the crime, but it can be almost entirely explained by a measure of state-level racial animus. These results shed light on the role of prosecutorial discretion and potentially racial discrimination as causes of racial disparities in sentencing.

College Park, MD: University of Maryland, 2019. 121p.