By Erik J. Girvan and Heather Marek

Hispanic individuals are a growing proportion of the general and carceral populations in the United States. This study examined the relationship between the type of sentences (prison, jail/probation) given to White, non-Hispanic individuals and to similarly situated individuals who were perceived to be Hispanic (any race) or perceived to be White but, based on validated estimates, self-identified as Hispanic. Hypotheses: Psychological theory indicates that, for group-based stereotypes and attitudes to impact decisions, decisionmakers must first identify and categorize target individuals as members of the relevant group. Following this theory, we predicted that individuals perceived by members of the criminal justice system to be Hispanic will be more likely to be sentenced to prison than similarly situated individuals perceived to be White. However, sentences of individuals predicted to have been misperceived as White but to self-identify as Hispanic will not differ from those of individuals accurately perceived as White. Method: We analyzed official state records of more than 220,000 unique sentencing decisions for nearly 200,000 individuals under state correctional supervision between 2005 and 2018, including demographic characteristics, statutory crime-seriousness and criminal-history scores from state sentencing guidelines, and sentencing outcomes. Results: Even after controlling for crime severity and criminal history, we found that individuals who were labeled as Hispanic in criminal justice records were nearly twice as likely to be sentenced to prison as those who were labeled as White (odds ratio [OR] = 1.95, 95% confidence interval [CI] [1.86, 2.04]). By comparison, individuals who were labeled in criminal justice records as White but, on the basis of validated estimates, were predicted to self-identify as Hispanic had the same likelihood of being sentenced to prison as individuals who were accurately perceived to be White (OR = 1.01, 95% CI [0.94, 1.07]). Conclusions: Results suggest that ethnic stereotypes or attitudes regarding Hispanic individuals may negatively impact criminal sentencing decisions regarding people perceived as Hispanic by actors in the legal system.

Law and Human Behavior, 2023 Volume 47, Issue 1 (Feb)

By Travis W. Franklin and Tri Keah S. Henry

Racial and ethnic sentencing disparities are frequently conditioned by offender and case characteristics (e.g., gender, crime type). Offenders’ criminal history is a potentially important conditioning factor, yet this issue has only been addressed by a small body of research. Moreover, no study has examined this potential conditioning effect among Asian or Native American offenders, and prior research has typically adopted a limited theoretical approach for explaining why criminal history might condition racial disparities. The present study addresses these shortcomings in an analysis of United States Sentencing Commission data for fiscal years 2010-2012. Results indicate that race and ethnicity effects are conditioned by criminal history in important ways. Implications for theory, research, and practice are discussed.

Crime & Delinquency Volume 66, Issue 1, January 2020, Pages 3-32

By The United States Sentencing Commission

Consistent with best practices, the Commission re-examined and refined the analytical methods used in previous reports to better understand sentencing disparity in the federal courts. Using new analytical techniques and newly available data, this report examines federal sentencing practices in the five fiscal years after the 2017 report to determine if the differences observed in the Commission’s prior reports continued to persist.  

Washington, DC: USSC,  2023. 48p.

By Rainer Forst

Over the past 15 years, Rainer Forst has developed a fundamental research programme within the tradition of Frankfurt School Critical Theory. The core of this programme is a moral account of the basic right of justification that humans owe to one another as rational beings. This account is put to work by Forst in articulating - both historically and philosophically - the contexts and form of justice and of toleration. The result is a powerful theoretical framework within which to address issues such as transnational justice and multicultural toleration. In this volume, Forst sets out his ideas in an extended essay, which is responded to be influential interlocutors including: Andrea Sangiovanni, Amy Allen, Kevin Olson, Anthony Laden, Eva Erman and Simon Caney. The volume concludes with Forst's response to his interlocutors.

London: Bloomsbury Academic,  2014.  249p.

By Bernadeta Lelonek-Kuleta

Despite the abandonment of the criterion of committing illegal acts in the diagnosis of pathological gambling in fifth edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-V), research confirms the significant link between crime, gambling, and gambling addiction. In Poland, this connection is observed by psychologists working in the prison service, who simultaneously report the need for more structured interactions that would solve gambling problems among prisoners. The lack of any data on the involvement of persons committing crimes in gambling in Poland formed the basis for the implementation of a survey of gambling behaviour and gambling problems among male offenders in Polish correctional institutions. A total of 1,219 sentenced men took part in the study. The research tool included 75 questions, including queries from the South Oaks Gambling Screen (SOGS). Based on SOGS, the prevalence rate of severe problem gambling was 29.4% over the lifetimes of the prisoners. As many as 13.1% of respondents admitted to having gambled in prison. This activity usually involved cards, bets or dice. More than 74% of incarcerated men who gambled in prison met the criteria for pathological gambling. Prisoners who gambled more in prison than at liberty made up 27.7%. As many as 69.3% of respondents declared that while in prison, they had met fellow convicts experiencing problems because of gambling. The study shows that criminals continue gambling after detention, especially those who are problem gamblers, an overall finding which implies the need to implement preventive and therapeutic interventions in correctional institutions. 

Lublin, Poland, Journal of Gambling Issues Volume 44. 2020, 18pg

By Harry Annison, Lol Burke, Nicola Carr, Matthew Millings, Gwen Robinson, Eleanor Surridge

This paper provides insights into the predominant styles of political reasoning in England and Wales that inform penal policy reform. It does so in relation to a particular development that constitutes a dramatic, perhaps even unique, wholesale reversal of a previously introduced market-based criminal justice delivery model. This is the ‘unification’ of probation services in England and Wales, which unwound the consequential privatization reforms introduced less than a decade earlier. This paper draws on in-depth interviews with senior policy makers to present a narrative reconstruction of the unification of probation services in England and Wales. Analogies with desistance literature are drawn upon in order to encapsulate the tensions posed for policy makers as they sought to enact this penal policy reform.

United Kingdom, British Journal of Criminology. Oct 2023, 18pg

By The Philadelphia District Attorney's Office

  Under District Attorney Larry Krasner, the Philadelphia District Attorney’s Office (DAO) has moved to end mass supervision. It has primarily done so through two policies, both aimed at reducing the amount of time people spend on county and state probation and parole. The first policy was announced in February 2018, the second in March 2019. • The policies were guided by public safety considerations and research showing that long community supervision sentences are ineffective and harmful. The policies apply to all situations except two categories of cases (sexual assault and potential felonies reduced to misdemeanors for non-trial resolutions) that allow discretion to seek longer supervision in appropriate cases. • Overall, supervision lengths decreased markedly after the DAO policies were implemented: median community supervision sentence lengths decreased 25% for sentences reached through negotiated guilty pleas. • Under District Attorney Krasner, the average community supervision sentence reached through negotiated guilty plea is almost 10 months shorter than under previous DAs. • Since 2018, the number of people on county community supervision has dropped from 42,000 to fewer than 28,000. • 42% fewer years of community supervision were imposed in the first two years of the Krasner administration than in the two years prior, accounting for all DAO policies and practices since 2018, as well as changing incident and arrest patterns. We estimate that the effects of the DAO Sentencing Policies will lead to 20% fewer newly sentenced people remaining on community supervision sentences five years after reforms than if the policies hadn’t been implemented. • Community supervision lengths were dramatically reduced under the policies without a measurable change in recidivism (being charged with a new criminal offense). • These anti-racist policies reduced disparities in supervision sentence lengths between Black, Latinx, and white defendants, though sentencing disparities still exist. • The vast majority of recent pleas have been compliant with the new DAO sentencing standards: 3 of 4 negotiated guilty pleas fall within the 2019 policy’s guidelines.  

Philadelphia, United States, District Attorneys Office. 2021, 42pg

By Sarah Waite

This article examines women’s experiences of moving from a closed to an open prison in England. Transition to an open prison is often viewed in a positive, reformist light and although androcentric auto-ethnographical work has demonstrated challenges associated with this pivot when serving a long-term sentence, much less is known about the experiences of women. Using interview discussions, this article draws upon the concept of transcarceral habitus to examine experiences of transfer and adaptation to the open prison within the broader context of the lives of criminalised women. By extending our understanding of the women’s open prison as a site of punishment and recognising the connections and pluralities of women’s carceral experiences, this article seeks to disrupt unhelpful binaries that legitimise the incarceration of women and the open prison estate.

United Kingdom, Howard Journal of Crime and Criminal Justice. Oct. 2023, 16pg

By Henry H. Wu, Ryan J. Gallagher, Thayer Alshaabi, Jane L. Adams, Joshua R. Minot, Michael V. Arnold, Brooke Foucault Welles, Randall Harp, Peter Sheridan Dodds, Christopher M. Danforth

The murder of George Floyd by police in May 2020 sparked international protests and brought unparalleled levels of attention to the Black Lives Matter movement. As we show, his death set record levels of activity and amplification on Twitter, prompted the saddest day in the platform’s history, and caused his name to appear among the ten most frequently used phrases in a day, where he is the only individual to have ever received that level of attention who was not known to the public earlier that same week. Importantly, we find that the Black Lives Matter movement’s rhetorical strategy to connect and repeat the names of past Black victims of police violence—foregrounding racial injustice as an ongoing pattern rather than a singular event—was exceptionally effective following George Floyd’s death: attention given to him extended to over 185 prior Black victims, more than other past moments in the movement’s history. We contextualize this rising tide of attention among 12 years of racial justice activism on Twitter, demonstrating how activists and allies have used attention and amplification as a recurring tactic to lift and memorialize the names of Black victims of police violence. Our results show how the Black Lives Matter movement uses social media to center past instances of police violence at an unprecedented scale and speed, while still advancing the racial justice movement’s longstanding goal to “say their names.”

United States, PLOS ONE. Janurary 11, 2023, 26pg

By Sarah J. Jackson

It is clear in news coverage of recent uprisings for Black life that journalists and media organizations struggle to reconcile the fact of ongoing racism with narratives of U.S. progress. Bound up in this struggle is how collective memory—or rather whose collective memory—shapes the practices of news-making. Here I interrogate how television news shapes collective memory of Black activism through analysis of a unique moment when protests over police abuse of Black people became newsworthy simultaneous with widespread commemorations of the civil rights movement. I detail the complex terrain of nostalgia and misremembering that provides cover for moderate and conservative delegitimization of contemporary Black activism. At the same time, counter-memories, introduced most often by members of the Black public sphere, offer alternative, actionable, and comprehensive interpretations of Black protest.

United States, Communication, Culture and Critique. 2021, 20pg

By Amber R. Crowell & Mark A. Fossett

This monograph builds on innovations in segregation measurement and analysis, previously developed by one of the authors of this book, by conducting empirical analyses of racial and ethnic residential segregation across a wide and comprehen-sive selection of communities in the United States. Past studies of residential segregation have been limited by a well-known and difficult challenge, which is that most segregation indices are prone to a sometimes very problematic upward bias that inflates segregation scores and makes it difficult to measure segregation at a single point in time, follow segregation patterns over time, and compare segregation across groups and communities. These problems are worse when using small spatial units such as census blocks, when the groups in the analysis are extremely imbal-anced in size, and when population counts are small. This has resulted in a literature that is heavily focused on segregation in a selection of the largest urban metropolitan environments, with only limited studies focused on nonmetropolitan communities or small racial and ethnic populations. Even so, restrictive case selections do not directly solve the problem of index bias. Fortunately, we have the solution to index bias, in addition to other solutions that address related problems with segre-gation measurement, which allow us to reanalyze residential segregation patterns and include more communities and contexts. In this book, we examine White-Black, White-Latino, and White-Asian residential segregation across metropolitan, micro-politan, and noncore county communities from 1990 to 2010, giving special atten-tion to how our findings may differ from what previous studies have found with measures that were not corrected for index bias and other related issues. We find that under the conditions where index bias is less likely to be a problem, our results track those from previous studies. But these communities do not make up the majority of cases, and in most communities our findings deviate in substantial ways from previous findings. We also employ new methods for linking micro-level processes of locational attainments to overall segregation patterns and develop a more complex understanding of residential segregation dynamics. This leads us to conclude that it is important to use our findings as benchmarks for residential segregation patterns over this time period and to adopt the methods of measurement and analysis that we endorse throughout this book for residential segregation research. 

United States, Springer. 2023, 260pg

By Jessica M. Eaglin 

There is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law. In adopting a theoretical lens centered on racism and the law, it reveals deeply embedded social assumptions about race that propel algorithms as criminal legal reform in response to mass incarceration. It further explains how these same assumptions normalize the socially and historically contingent process of producing race and racial hierarchy in society through law. Normatively, this Article rejects the notion that tinkering around or facilitating the abolition of algorithms present the only viable solutions in law. Rather, it calls upon legal scholars to consider directly how to use the law to challenge the production of racial hierarchy at the intersection of technology and society. This Article proposes shifting the legal discourse on algorithms as criminal legal reform to critically center racism as an important step in this larger project moving forward. 

United States, California Law Review. 2023, 47pg

By Ihar Paulau

The large growth of the United States’ criminal legal system in the late 20th century brought a widening racial gap in incarceration.1 By the year 2000, Black people made up almost half of the state prison population but only about 13% of the U.S.2 population. And although a wave of changes to sentencing and corrections policies over the past two decades has helped lessen disparities in federal and state prisons, Black adults still were imprisoned in 2020 at five times the rate for White adults.3

Far less is known, however, about racial and ethnic disparities in the country’s approximately 3,000 local jails.4 Bureau of Justice Statistics (BJS) reports show that the gap in the rate of jail incarceration between Black and White people dropped by 22% between 2011 and 2021.5 However, these reports contain no race or ethnicity data on critical topics such as admissions or lengths of stay and little or no information about the severity or types of criminal charges for people in jail either in the aggregate or broken down by race, age, or other demographics.

The lack of detailed and timely data on who is in jail, for how long, and why led The Pew Charitable Trusts to partner with the Jail Data Initiative (JDI), an up-to-date source of data from approximately 1,300 of the nation’s nearly 3,000 jails created by the New York University Public Safety Lab, and the Data Collaborative for Justice (DCJ) at John Jay College, which conducts research to help local-level criminal justice decision-makers identify areas for reform.6 Although JDI is not necessarily nationally representative, it is the only publicly available source of near real-time data featuring a substantial sample of jails throughout the country. Additionally, DCJ collected and analyzed in-depth demographic and offense data for different racial and ethnic groups across jails in three counties—Durham, North Carolina; Louisville-Jefferson County, Kentucky; and St. Louis, Missouri—some of which is unavailable in the JDI database.7

Using the data from JDI, Pew researchers examined race in recent jail populations, admissions, and lengths of stay. Of the JDI data set, 595 jails had data for 2022, and within those facilities, Black people made up, on average, 12% of the local community populations but more than double that, 26%, of the jail populations. Additionally, although the jail population decreased nationally during the early months of COVID-19 in 2020, the previous 10-year trend of declining racial disparities in jails may have reversed as the pandemic progressed. Between March 2020 and December 2022, the average number of White people in jail increased by less than 1% compared with an increase of 8% for Black people in 349 jails from the JDI database that had complete data for that period.

Two factors, how many people go to jail and how long they stay, determine jail populations.8 As of 2022, Black people were admitted to jail at more than four times the rate of White people and stayed in jail for 12 more days on average across the 595-jail sample, contributing to the larger increase in population observed for Black individuals.

The findings from the three counties in the DCJ study reflect similar admissions and length of stay disparities broadly and across several metrics:

• In 2019, in all three counties Black people were admitted to jail at a rate at least double—and up to six times—that of White or Hispanic people and spent up to 12 days longer in jail than White people.

• Black people were admitted to jail at a higher rate than other groups for both misdemeanors and felonies in all three counties and typically spent the most time in jail for felonies.

• Racial disparities in admissions to jail and length of stay were largest among younger adults.

• Black men and Black women both had considerably higher admission rates than their White or Hispanic counterparts, but the length-of-stay gap was greater among men than women.

Although the findings in this brief are specific to the jails studied, they nevertheless demonstrate that significant disparities exist in many facilities. However, because jails are local and people are sent to jail for many reasons, identifying and understanding persistent racial and ethnic gaps nationally and at the local level will require further data collection and analysis, as well as collaboration across multiple jurisdictions and data systems. Individual localities may find that the disparities in their jail populations and the factors that influence those gaps are different and will require tailored solutions.

United States, A brief from Pew. 2023, 19pg

By Kelly Roberts Freeman, Cathy Hu, and Jesse Jannetta 

Racial and ethnic disparity is a pervasive characteristic of the American criminal justice system. This starts at the beginning of the justice process with substantial racial disparities in arrest.1 Once arrested, people of color face disparities in pretrial bail decisions (Schlesinger 2005) through disposition and sentencing, where they are imprisoned at 5.9 times the rate of their white counterparts (Carson 2018). Disparate outcomes by race continue to emerge at decision points that are even later in the justice process, such as in determining prison release on parole (Huebner and Bynum 2008). Many of these disparities arise from discretionary decisions and sentencing policies that disadvantage people of color. Disparities are also rooted in a history of structural racism and inequities that continue today, contribute to the overrepresentation of people of color in the justice system, and require action across multiple policy domains to address (Kijakazi et al. 2019). 

USA, Urban Institute. March 2021, 14pg

By Alana Henninger and Hung-En Sung

Efforts at combating the negative health and social consequences of substance abuse and dependence have always existed in the United States. Often swinging between the rival contexts of moralistic and positivistic discourses, these efforts have led to the articulation of the major therapeutic paradigms in the field of substance abuse treatment. The earliest interventions were grassroot interventions focusing on individuals with drinking problems whose goals shifted from moderation to abstinence over time. As the patterns of substance use and abuse quickly diversified along the processes of immigration and urbanization, a wider variety of substances and a more diverse assortment of users became targeted for an even richer array of therapeutic experiments. The gradual involvement of the state in the planning and administration of substance abuse treatment has resulted in the growing use of institutionalization and coercion to trigger and maintain the recovery process. The emerging consensus that substance addiction is a chronic and relapsing brain disease represents a redefinition of an old problem and will determine the direction of the science and art of substance abuse treatment in the years to come.

Encyclopedia of Criminology and Criminal Justice. Edition: 1st. January 2014. DOI: 10.1007/978-1-4614-5690-2_278. 14p.

By Heather Harris, with research support from Thomas Sloan

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.

By Sixth Amendment Center and The Defender Initiative

In 1963, the U.S. Supreme Court declared in Gideon v. Wainwright that it is an “obvious truth” that anyone accused of a crime who cannot afford the cost of a lawyer “cannot be assured a fair trial unless counsel is provided for him.” In the intervening 58 years, the U.S. Supreme Court has clarified that the Sixth Amendment right to counsel means every person who is accused of a crime is entitled to have an attorney provided at government expense to defend him in all federal and state courts whenever that person is facing the potential loss of his liberty and is unable to afford his own attorney. Moreover, the appointed lawyer needs to be more than merely a warm body with a bar card. The attorney must also be effective, the U.S. Supreme Court said again in United States v. Cronic in 1984, subjecting the prosecution’s case to “the crucible of meaningful adversarial testing.” Under Gideon, the Sixth Amendment right to effective counsel is an obligation of the states under the due process clause of the Fourteenth Amendment. The State of Illinois delegates to its county boards and circuit court judges most of its constitutional obligation to ensure the provision of effective assistance of counsel to indigent criminal defendants in the trial courts. Yet the state does not have any oversight structure by which to know whether each county’s indigent defense system has a sufficient number of attorneys with the necessary time, training, and resources to provide effective assistance of counsel at every critical stage of a criminal case for each and every indigent defendant. This is the first of three findings of this report. As explained in chapter I, this report is the result of a statewide evaluation of the provision of the right to counsel in adult criminal cases at the trial level, conducted at the request of the Illinois Supreme Court. Through data collection and analysis, interviews with criminal justice stakeholders, and courtroom observations, the evaluation assessed indigent defense services against national standards and Sixth Amendment caselaw that establish the hallmarks of a structurally sound indigent representation system, which include the early appointment of qualified and trained attorneys, who have sufficient time and resources to provide effective representation under independent supervision. The absence of any of these factors can show that a system is presumptively providing ineffective assistance of counsel. This evaluation focuses closely on the practices of nine counties – Champaign, Cook, DuPage, Gallatin, Hardin, LaSalle, Mercer, Schuyler, and Stephenson – which taken together illustrate the wide variations among Illinois county governments and courts in their efforts to fulfill the Sixth Amendment right to counsel. The State of Illinois delegates to its counties and trial court judges the responsibility for providing and overseeing attorneys to effectively represent indigent defendants, and it delegates to its counties nearly all of the responsibility for funding the right to counsel of indigent defendants. When a state chooses to delegate its federal constitutional responsibilities to its local governments and courts, the state must guarantee not only that these local bodies are capable of providing effective representation but also that they are in fact doing so. Yet Illinois is one of just seven states that do not have any state commission, state agency, or state officer with oversight of any aspect of trial-level indigent representation services in adult criminal cases. Chapter II details the framework that Illinois has established for its county-level criminal justice systems and how that framework has been implemented in the nine sample counties. The indigent defense systems in the nine representative counties of this evaluation vary greatly. With 102 counties in the state, it is likely that any or all of those counties present even greater variations in their indigent defense systems. Without oversight, the State of Illinois cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all, and the State of Illinois cannot know how much the provision of indigent representation should cost nor how to provide it effectively in all 102 counties. Instead, policy decisions about indigent defense systems are left to anecdote, speculation, and potentially even bias. Chapters III through VII comprise the substantive assessment, which relate the basis of our second and third findings: The state’s limited framework for how county boards and circuit court judges are to establish and implement the indigent defense system in each county institutionalizes political and judicial interference with the appointed attorneys’ independence to act in the stated legal interests of their indigent clients. This lack of independence causes systemic conflicts of interest that interfere with the provision of effective assistance of counsel. 3. The indigent defense systems established in Illinois’ counties lack oversight and accountability that can result in a constructive denial of the right to counsel to at least some indigent defendants, and in some instances can result in the actual denial of the right to counsel to at least some indigent defendants. An indigent defense system’s effectiveness must be measured by the representation it provides to its appointed clients. The U.S. Supreme Court explained in Cronic that “[t]he right to the effective assistance of counsel” means that the defense must put the prosecution’s case through the “crucible of meaningful adversarial testing.” For this to occur, U.S. Supreme Court case law provides that an indigent person must be represented by a qualified and trained attorney, who is appointed early in the case, and who has sufficient time and resources to provide effective representation under independent supervision.

Boston: Sixth Amendment Center, 2021. 181p.

By Russell M. Gold and Kay L. Levine

For decades police and prosecutors have controlled the public narrative about criminal law—littering the news landscape with salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations— all of which inflict severe harm on defendants and their loved ones. But defenders rarely show the public the world they inhabit.

That approach hasn’t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them. This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system. It builds on the social media literature to analyze how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy. As a few existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions. Defenders’ strategic use of social media won’t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades.

Gold, Russell M. and Levine, Kay L., The Public Voice of the Defender (July 14, 2023). 75 Alabama Law Review (Forthcoming), U of Alabama Legal Studies Research Paper #4416723, Emory Legal Studies Research Paper No. 23-4,

By Brandon L. Garrett and Gregory Mitchell

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone.

These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

121 Mich. L. Rev. 707 (2023).

By Ronald Wright and Jenny Roberts

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work. Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers. Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints. Over the decades, however, theoretical understandings of the defense attorney’s work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act. Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages.

Annu. Rev. Criminol. 2023. 6:241–64