By  Alissa Pollitz Worden, Kaitlin Moloney, et al.

New York’s groundbreaking 2019 bail reforms aimed to curtail pretrial detention, diminish the role of finances in release decisions, and tackle racial disparities in pretrial outcomes. This study is the first to examine pretrial decision-making in New York’s under-examined Town & Village Justice Courts, addressing a knowledge gap in public understanding and serving as a companion to related research on the topic. This report was authored by DCJ’s partners at The John F. Finn Institute for Public Safety.

1.     Increased Pretrial Release Under Bail Reform:

• Higher percentage of Justice Court cases released without bail for misdemeanors (82% in 2018 vs. 93% in 2021) and nonviolent felonies (59% in 2018 vs. 71% in 2021).

2.     Absence of Racial Disparities in Release Rates:

• Release rates were similar across racial and ethnic groups throughout the study period (both pre- and post-reform).

3.     No Progress Towards Affordable Bail:

• Bail amounts did not become more affordable, and people did not become more likely to post bail, after the reforms went into effect (echoing prior Data Collaborative for Justice research on City and District Courts across the State).

4.     Justice Courts vs. City Courts from the Same Counties:

• Justice Courts released people at higher rates than City Courts both pre- and post-reform. By 2021, less than 7% of people charged with misdemeanors were detained in the Justice Courts compared to 11% in urban City Courts and 13% in small City Courts from the same counties.

Albany, NY:  John F. Finn Institute for Public Safety, Inc., 2024. 41p.

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 U.S. Bureau of Justice Assistance

This article provides details about Louisiana’s Orleans Reentry Court Program (ORCP), which originated in the Louisiana State Penitentiary at Angola from a desire to equip inmates with vocational, educational, and other skills that could lead to gainful employment and reduce the likelihood of recidivism. The document describes the requirements of the in-jail portion, which involves participants being mentored by other inmates, typically those who are serving life sentences; it also provides details of the probation portion of ORCP. The document notes that after ORCP had been established, one of the program founders recognized that participants suffering from opioid use disorder were lacking the necessary services to maintain their recovery and successfully complete the program. In order to address that, Orleans Parish Criminal District Court applied for and received a fiscal year 2018 Comprehensive Opioid Abuse Program grant, which introduced an enhanced substance abuse treatment aspect, including medication-assisted treatment (MAT) services, and more wraparound case management services into the existing reentry court model. The discussion of lessons learned reviews what Comprehensive Opioid, Stimulant, and Substance Abuse Program (COSSAP) covers, and the importance of strategically leveraging available resources.

Washington, DC: U.S. Bureau of Justice Assistance, 2020. 4p.

By Christopher M. Bellas

This Article features the many factors that influence jurors' decision making in trials involving police use of excessive force. First, there is a discussion of what exactly police use of force is and how much exists. Second, there is a review of the relevant case law regarding police use of force that focuses primarily on the doctrine of qualified immunity (a code that affords police protection from being sued, most often under 18 U.S.C. § 1983). Third, in those rare police use of excessive force trials, the final decision regarding the liability of the defendant most often rests with a jury. Because the Sixth and Seventh Amendments to the U.S. Constitution states one is to be tried by a jury of one's peers, which comes from the community, I investigate the importance of community relations with the criminal justice system, in particular policing, and how these relationships shape a potential jury pool. Finally, I assess the psychology behind juror decision making and its impact in police use of force trials regarding the psychological schema already impressed on jurors prior to rendering verdicts or that could color or negate their interpretation of the evidence presented at trial.

73(3) Case W. Rsrv. L. Rev. 895 (2023)

By Lisa Bailey Vavonese and Alysha Hall

Are public defenders the answer hiding in plain sight? Imagine that you are arrested and charged with a crime. You likely have a picture in your mind of how your first interactions with the police, your attorney, and the judge should go— interactions that are fair and just and protect your rights. The picture we paint next is that story. It is simple yet, to many, unfamiliar. We could have told the version that is true for so many people charged with a crime—a story of injustice and unfairness, a story so familiar it feels unchangeable. Instead, what follows is a thought experiment, a sadly unrepresentative one.  

New York: Center for Justice Innovation, 2023. 34p.

By National Institute of Justice, Office for Access to Justice

"Two-thirds of states (34) do not have full statewide oversight of public defense, meaning they do not set standards or monitor whether people receive counsel in all cases where they have a right to it."

In collaboration with the U.S. Department of Justice’s Office for Access to Justice (ATJ), the National Institute of Justice (NIJ) sponsored a report on public defense system models in recognition of the 60th anniversary of Gideon v. Wainwright, which established the right to counsel to indigent persons charged with felonies in state courts. Researchers conducted a national scan of the public defense service models used in state, local, and tribal adult, trial-level, criminal cases. The report addresses the prevalence of different models, factors contributing to how jurisdictions select models, and variations in outcomes associated with each model. The report found that 16 states have a commission and/or statewide defender program overseeing public defense services, while in 34 there are gaps in state oversight. States need a mechanism for monitoring and supporting access to quality public defense counsel. States also need to ensure that the people overseeing and administering public defense do not have professional conflicts of interest. Finally, defender systems need meaningful input on practice and policy from people who have been represented by public defenders or been impacted by the criminal justice system. Recent reform efforts have resulted in more states creating oversight commissions and shifting to greater use of state funds to provide access to quality counsel and public defense delivery methods. Experts recommend states collect data on the percentage of people who enter uncounseled guilty pleas and on defendant characteristics not limited to race and ethnicity to ascertain whether equitable access to counsel is available. Findings are based on interviews with experts and a review and synthesis of publicly available material; the report is a national and current scan of public defense models and is intended to complement research based on more rigorous statistical surveys and program evaluations that may be dated or limited in coverage of jurisdictions. 

Washington, DC: U.S. National Institute of Justice, 2023. 87p.

By Organization for Security and Co-operation in Europe. Mission in Kosovo
Since 1999, the Organization for Security and Co-operation in Europe (“OSCE”) Mission in Kosovo has held a pivotal role in monitoring the justice system in Kosovo for compliance with fair trial and international human rights standards. Trial monitoring is conducted by OSCE personnel in courts across Kosovo, focusing on identifying systemic issues affecting the justice system. The OSCE is concerned that the Kosovo judicial system is not adequately exercising its criminal calendaring authority. The caseload challenges facing the Basic Courts of Kosovo are staggering. During the first three months of 2023, the Basic Courts presided over 46,852 criminal cases: of those 40,707 were inherited and 6,145 cases were newly filed.1 However, only 5,833 cases were resolved leaving 41,019 pending at the end of the three month reporting period. Despite these circumstances, courts2 regularly fail to schedule criminal trials on consecutive or uninterrupted days. This practice exacerbates court backlogs, is an inefficient use of judicial resources, and ultimately creates a barrier to justice. This report analyzes the issue of criminal case backlogs and delays, which is a widespread problem in Kosovo that negatively affects access to justice and the efficient administration of justice. Specifically, the report focuses on how systemic criminal case management practices relating to scheduling trials over a prolonged period of time aggravate criminal case backlogs. The report is based on the direct field monitoring conducted by OSCE staff of criminal hearings observed in 2023. Its purpose is to make actionable recommendations to the relevant judicial system actors in order to improve criminal case management at the trial stage.
Vienna: OSCE, 2023. 16p.

By Adam I. Biener  

  Introduction The Association of Prosecuting Attorneys (APA), a non-profit organization composed of US prosecutors, conducted a survey to understand the prevalence of and factors associated with case backlogs. Backlogs occur when a large number of cases are pending before the court for a longer period than typically experienced and/or a period longer than prescribed by the court. In a survey of 50 of the largest prosecutors’ offices conducted by APA in 2020, 14 responding offices reported just under 9,000 cases awaiting trial on average. 1 Following court disruptions due to COVID-19, there was an average increase of 5,565 cases per office, a 62% increase. Case backlogs can occur when the caseload per individual prosecuting attorney rises holding all other productive capability constant. In practice, the level of staffing (measured by caseload per attorney) is extremely varied.2 Further, models of prosecution vary across offices3 and different models can require a different mix of attorney specialties.4 Despite this complexity, office staffing is very idiosyncratic and not often tied to per attorney caseloads1, which can result in significant and potentially burdensome individual caseloads.3 Excessive caseloads for individual attorneys can result in longer case processing time, a greater risk for decision-making errors, increased plea bargains and dismissals, career burnout, and employee turnover. 6 Funding shocks have likely exacerbated the size of individual attorney caseloads over the past 20 years. The great recession following the financial crisis in 2008 reduced state budgets, employment, and payroll, shrinking the resources available to meet staffing and resource requests from prosecutors’ offices,5 leading to rising prosecutor workloads and stagnating or shrinking budgets.6 The expectations of prosecutors and their obligations when working cases have evolved significantly since 2007 due to changing legal requirements and new technologies. Victims’ rights laws, which require additional engagement with victims, increase the amount of time spent on person-involved cases (e.g. CA Prop 9 in 20087 ). There are presently Open Discovery laws in 46 states, up from roughly a third of states in 2004, 8 that increase the requirements for timely evidence collection. Body-worn cameras have become more commonplace for law enforcement, as nearly 50% of 15,238 general-purpose law enforcement agencies had body-worn cameras in 2016.9 Video evidence generated by body-worn cameras are more labor-intensive to review, extending the amount of labor hours required to prepare a case. Additionally, the demand for specialized attorneys to review cases as part of conviction review/integrity units, 10 while improving the equitable administration of justice, can potentially strain limited staffing resources. All of these staffing and resource constraints were tested during the COVID-19 pandemic, which put unusual demands on offices to continue their essential functions despite health concerns and court closures. While many offices were able to adopt new technologies to maintain their functioning, these pivots did not alleviate the rising caseloads and work burdens on individual prosecutors

Washington, DC: The Association of Prosecuting Attorneys (APA) , 2024. 19p.

By Meredith Rossner and Helen Taylor

Restorative justice is an idea and a practice that has had a significant impact on criminology over the past four decades and has proliferated throughout the criminal justice system. Yet from the beginning of this movement, there have been worries that the mainstreaming of restorative justice will lead to its dilution, or even corruption, and undermine its transformative potential. Developing alongside the growing institutionalization of restorative justice has been a transformative justice movement that has arisen from larger movements for racial and gender justice, drawing on similar foundational values to restorative justice. This review interrogates the relationship between restorative and transformative justice by examining a flourishing of ideas and experiments at the margins of the restorative justice movement in three key areas—responses to racial injustice, sexual violence, and environmental harm—and finds that restorative justice has the capacity to work at multiple levels to respond to harm, transform relationships, and prevent future injustices.

Annual Review of Criminology, Volume 7, Page 357 - 381

By Valerie Jenness and Alexis Rowland

A growing body of research reveals that transgender people are disproportionately in contact with the criminal legal system, wherein they experience considerable discrimination, violence, and other harms. To better understand transgender people's involvement in this system, this article synthesizes research from criminology, transgender studies, and related fields as well as empirical findings produced outside of academe, to conceptualize a “transgender criminal legal system nexus.” This article examines historical and contemporary criminalization of transgender people; differential system contact and attendant experiences associated with police contact, judicial decision-making, and incarceration; and pathways to system involvement for transgender people. The analytic focus is on cultural logics related to institutionalized conceptualizations of gender, discriminatory people-processing in various domains of the criminal legal system, and institutionally produced disparities for transgender people involved in the criminal legal system, especially transgender women of color. The article concludes with a discussion of directions for future research, including a focus on administrative violence, organizational sorting, intersectionality, and measurement challenges.

Annual Review of Criminology, Volume 7, Page 283 - 309

By Hedwig Lee

I describe how cultural and structural racism operate the entire contemporary American criminal justice system via five features: devaluation of certain human lives, ubiquitous adaptation, networked structure, perceived neutrality, and temporal amnesia. I draw from specific historical and contemporary examples in policing, courts, and corrections to further emphasize the foundational nature of racism and its role in shaping racial/ethnic inequities not just in relationship to criminal justice outcomes but also in relationship to health, economic, and social well-being.

Annual Review of Criminology, Volume 7, Page 233 - 255

By Ali Rowhani-Rahbar, Amy Gallagher, Deborah Azrael , and Matthew Miller 

Little is known about the frequency and features of firearm carrying among adult handgun owners in the United States. In fact, over the past 30 years, only a few peer-reviewed national surveys, conducted in 1994, 1995, 1996, and 2015, have provided even the most basic information about firearm carrying frequency.1–4 Since the first of these surveys, reasons offered by firearm owners for why they own firearms have shifted from hunting and sports shooting toward personal protection. In 1994, for example, 46% of firearm owners reported owning firearms for protection2; by 2015, that number had reached 65%,5 and, by 2019, it had reached 73%.6 As personal protection became the predominant motivation for owning firearms, handgun ownership increased disproportionately from 64% in 1994 to 83% in 2021.2,7

These trends have been accompanied by a loosening of state laws governing who can carry handguns in public places. State laws regulating concealed handgun carrying are typically divided into the following types: (1) permitless: no permit is required; (2) shall issue: the issuing authority is required to grant a permit to anyone who meets certain minimal statutory requirements with no or limited discretion; (3) may issue: the issuing authority has substantial discretion to approve or deny a concealed carry permit to an applicant.8 In 1990, only 1 state allowed permitless handgun carry; at the time of this writing, that number had risen to 21.8

To our knowledge, the only contemporary national estimates of handgun carrying among US adults come from the National Firearms Survey in 2015 (NFS-2015). NFS-2015 found that 23.5% of adult handgun owners (9 million adults) had carried a loaded handgun on their person in the month before the survey; of those, 34.5% (3 million) had done so every day.4 Of handgun owners who carried, 4 in 5 carried primarily for protection, 4 in 5 had a concealed carry permit, 2 in 3 always carried concealed, and 1 in 10 always carried openly.4 The prevalence of handgun carrying was similar in states with permitless carry laws and states with shall issue carry laws. By contrast, the prevalence of carrying was notably lower in states with may issue carry laws.4

In the current study (NFS-2019), we used nationally representative survey data collected from July 30, 2019, to August 11, 2019, to update information pertaining to the proportion of handgun owners who carried a handgun over the previous month (and, of those, the fraction who carried daily), the characteristics of those who carried, and the prevalence of handgun carrying by handgun owners in states that did versus did not require a permit for concealed carrying at the time of the survey.

United States, American Journal of Public Health. 2022, 8pg

By Everytown for Gun Safety and Johns Hopkins Center for Gun Violence Solutions 

Extreme Risk Protection Order (ERPO) laws create an opportunity to intervene and prevent firearm violence when there are warning signs that an individual poses a risk of harm to self or others. While ERPO laws are relatively new, a growing body of research demonstrates the potential for these laws to prevent firearm violence, particularly firearm suicide, and multiple victim/mass shootings. Interest in ERPO laws has increased in recent years, with 16 states having enacted these laws between 2018 and 2023. Implementation varies widely across and within states. As a result of strong ERPO implementation efforts in some jurisdictions, more information is now available for state and local leaders about how to implement and adapt ERPO laws for their own communities. In addition, the Bipartisan Safer Communities Act of 2022 included $750 million in new federal grant funding for states, some of which is designated to support ERPO implementation. To meet this moment, the Everytown for Gun Safety Support Fund and the Johns Hopkins Center for Gun Violence Solutions have partnered to compile this guide of the best available practices and promising approaches to effective implementation of extreme risk laws. These recommendations are informed by conversations with individuals who are pioneering ERPO implementation, in addition to the best practices shared at a December 2022 convening of ERPO leaders from around the country.   

New York: Everytown for Gun Safety. 2023, 52pg

By Andrew Willinger

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPOrelated cases has confused judicial analysis and argues that, especially in light of Bruen’s novel text, history, and tradition test, courts should be especially careful to clarify how cumulative-rights arguments are impacting their analysis. An examination of Second Amendment court decisions concerning another type of civil protection order, Domestic Violence Protection Orders, informs the approach used to further consider ERPO rights deprivation claims and the constitutionally relevant distinctions among different civil dispossession proceedings. The Article further considers the state of ERPO law in the context of the evolving evidence documenting the uptake and impact of ERPOs on gun violence in the United States, including a review of scholarship that seeks to  understand how ERPO statutes are being implemented and to determine whether the laws prevent interpersonal gun violence and suicide. Finally, this Article concludes with a commentary and set of recommendations to inform the practice and future scholarship of ERPO as a tool for preventing gun violence in the United States, in accord with constitutional protections in the post-Bruen age.

United States, Number 1 Public Health, History, and the Future Of Gun Regulation after Bruen. 2023, 64pg

By Rebecca Valek, Cassandra Crifasi, and Alex McCourt 

Gun violence rates in the U.S. have reached all-time highs in recent years.1 Overall, in 2022, more than 48,000 Americans died by guns.2 Since 2019, the rate of gun deaths in the U.S increased 21%.3 These increases in gun deaths have especially impacted young Americans.4 Between 2013 and 2022, rates of gun deaths among children and teens increased 87%.5 Nearly 4,600 American youth (aged 1–19) were killed by guns in 2022, fueled by increases in both homicide and suicide.6 Increased deaths have prompted Americans to call for legislative action.7 Despite the growth in dissatisfaction with U.S. gun laws and high levels of support for stricter gun legislation, some gun laws have become more permissive in the past two decades, particularly in states with Republican majorities.8 Supreme Court decisions have accelerated this shift, beginning with District of Columbia v. Heller in 2008, which expanded the understanding of the Second Amendment to include an individual right to own handguns for self-defense, and McDonald v. City of Chicago in 2010, which held that the Second Amendment applies to state and local governments.9 These decisions, along with the 2022 decision preventing states from requiring proper cause to obtain concealed carry licenses in New York State Rifle & Pistol Association Inc. v. Bruen, have expanded gun rights and limited the abilities of state legislatures and Congress to regulate gun violence.10 John Feinblatt, president of the nonprofit gun violence prevention advocacy group Everytown for Gun Safety, described the Bruen decision as “out of step with the bipartisan majority in Congress that is on the verge of passing significant gun safety legislation, and out of touch with the overwhelming majority of Americans who support gun safety measures.”11 At a time when gun violence has become the leading cause of death of Americans under 20 years old, the successful enactment and implementation of such highly supported policy is essential.12 Public opinion can directly affect legislative and executive actions and, while the effect on the judiciary may be less clear, there is often a connection between public opinion and court decisions.13 Many scholars have noted a significant influence of public mood and public opinion on the decisions of the Supreme Court.14 The Supreme Court’s sociological legitimacy, a term used by legal scholars to refer to the public’s view and respect of the Court, depends largely on the extent to which the Court’s decisions align with public opinion.15 When the Court’s decisions are affected by public opinion to promote sociological legitimacy, the Court’s legal legitimacy — or its Justices’ consistent application of their preferred approach to interpreting the law — may be diminished.16 In Bruen, the majority of the justices adopted an approach that uses elements from originalism and textualism without adhering completely to either.17 The Bruen standard requires courts to evaluate gun laws by looking to text, history, and tradition to determine whether the law at issue is “consistent with the Nation’s historical tradition of firearm regulation.”18 To date, very few courts have evaluated age-restrictive gun laws, but legislatures continue to adopt new gun laws and courts, including the Supreme Court, are hearing new Second Amendment-related challenges.19 Public opinion will play a role in this process. The views of the public — both nationwide and in specific constituencies — may affect what gun policies are introduced and enacted by legislators, what laws are challenged in court, and what decisions courts reach in those challenges. In addition, as courts continue to grapple with Bruen and its standards, public opinion — whether historical or modern — may shape how judges think about history and tradition. Age-related gun laws may be of particular interest as rates of gun violence among youth have elevated and government officials evaluate existing laws and explore new laws in their search for solutions.    

United States, Fordham Urb. L.J. 117. 2023, 40pg

By Jose Pina-Sánchez, Lilly Crellin, Jonathan Bild, Julian Roberts and Mike Hough

This data bulletin explores sentencing trends in England and Wales from 2002 to 2022 and addresses this key question: How has the severity of sentencing changed over the past 20 years? It is the first of a series from the Sentencing Academy. There are three categories of offence in England and Wales. More serious crimes are indictable only, which can be dealt with only by the Crown Court. Other offences are either ‘triable either way’, resolved either by the Crown Court or by magistrates’ courts, or summary, heard only in magistrates’ courts. Indictable only offences account for a small minority (about 1% in 2022) of all cases sentenced. Triable either way and summary only represent the remaining 16% and 83% respectively. 1 Analyses are presented here for all offences and then separately for summary offences, as well as for indictable and triable either way offences combined. 2 We first document changes in the use of all sanctions over the period 2002-2022. Then we focus on the principal disposals, and in particular on sentences of imprisonment. Despite fairly stable police-recorded crime rates over this period, 3 the prison population in England and Wales has increased by almost 20% since 2002. Several explanations may account for this increase, including: more serious crimes being sentenced; an increase in the volume of repeat offenders; and more offenders being recalled to prison for breaching their licence conditions. This bulletin explores one potential explanation, namely that sentencing has become harsher over the period. An increase in sentence severity may arise from a higher imprisonment rate, a decline in the use of less severe punishments such as the community order, or a combination of both trends. In addition, there may have been an increase in the length of prison sentences imposed. Any such changes would increase the prison population.

London: The Sentencing Academy, 2023. 6p. 

By The Illinois Resentencing Task Force

The RTF met for eleven months and adopted sixteen recommendations for resentencing in Illinois. The recommendations were adopted by a majority vote. Each member brought to the table their expertise and professional experience, as well as their sense of justice. SPAC presented a basic analysis of the prison population as of June 30, 2021. The analysis established that people serving long sentences for serious offenses now make up a larger proportion of the population than at any time in the past. Reducing the prison population could not be accomplished without including them in the resentencing process. Each recommendation below is addressed individually in this report and is followed by a brief rationale. 1. The Task Force recommends the Illinois General Assembly pass legislation to create prospective and retroactive resentencing opportunities. The General Assembly has the authority to create new pathways to judicial review long after a final result is reached. A resentencing system that allows both prospective and retroactive application will have the greatest impact on the prison population and address the disparate impact of mass incarceration. The legislative intent for the resentencing law to be applied prospectively and retroactively should be clearly stated. 2. The General Assembly shall recommend parties who may initiate a petition for resentencing including but not limited to the prosecuting attorney, the incarcerated individual, or defense counsel. The RTF was directed to study potential pathways for people to file petitions. The RTF concluded that several stakeholders, including the person who is incarcerated, state’s attorney, and defense counsel, should be allowed to file a resentencing petition. 3. The General Assembly should establish eligibility criteria for sentence modification, including but not limited to: (1) The petitioner is serving a sentence for any criminal offense for which the statutory penalty has been subsequently reduced or altered; or (2) The petitioner makes a showing that their sentence no longer advances the interest of justice or the promotion of public safety. The legislature should establish the specific criteria for a sentence modification petition. Eligibility should include but not be limited to retroactive statutory changes, fairness concerns to reflect changes in policy or scientific knowledge, and extreme sentences that do not reflect the interests of justice. 4. The General Assembly shall determine a process by which individuals eligible under #3, including those serving extreme sentences, can petition the court for a resentencing. People who are serving long sentences for serious crimes should be eligible for resentencing. Age is the strongest predictor of the likelihood of reoffending, thus the term “aging out” of crime. People who committed serious crimes decades ago are not at high risk of doing so again and are less likely to recidivate at all. The legislature should create the process for resentencing petitions to be filed in court. 5. Resentencing petitions shall be dismissed if they do not meet the eligibility criteria; such dismissal shall be a final, appealable order. The court shall set forth, either in open court or in writing, the reasons for its decision. Allowing the eligibility determination to be appealed mirrors the procedures available under the Post-Conviction Hearing Act. Appellate review guards against inconsistent approaches among various jurisdictions as well as arbitrary or capricious dismissals based on meeting the eligibility criteria. 6. Any procedure adopted by the General Assembly shall provide adequate notice requirements. The Department of Corrections shall provide notice and adequate materials to inform individuals who are incarcerated of their rights. IDOC should provide general notification to people who are incarcerated of their rights to file a resentencing petition, including information on the process and how to initiate a petition. 7. All statutory and constitutional rights of victims, including but not limited to the right to notice and to be heard, shall apply to the entire resentencing procedure. The victim shall be notified of any restorative justice programs available at the time the petition is filed. The interests and rights of victims should be represented during the resentencing process. Restorative justice programs aim to engage all parties and stakeholders in repairing harm and conflict. Victims should have the option to participate in restorative justice programs if they are available. 8. A petitioner who is unable to afford counsel is entitled to have counsel appointed, at no cost to the defendant, to represent the defendant for the resentencing petition and proceedings. Requiring counsel for individuals who submit a resentencing petition should ensure full and fair consideration of the case. It also contributes to a record for the appellate court that supports meaningful review.  etc.
Chicago: The Task Force, 2022. 36p.

By Dushiyanthini (Toni) Kenthirarajah, Nicholas P. Camp ,  Gregory M. Walton,  Aaron C. Kay,  Geoffrey L. Cohen

Objective: Using archival and experimental methods, we tested the role that racial associations of first names play in criminal sentencing. Hypotheses: We hypothesized that Black defendants with more stereotypically Black names (e.g., Jamal) would receive more punitive sentences than Black defendants with more stereotypically White names (e.g., James). Method: In an archival study, we obtained a random sample of 296 real-world records of Black male prison inmates in Florida and asked participants to rate the extent to which each inmate’s first name was stereotypically Black or stereotypically White. We then tested the extent to which racial stereotypicality was associated with sentence length, controlling for relevant legal features of each case (e.g., criminal record, severity of convicted offenses). In a follow-up experiment, participant judges assigned sentences in cases in which the Black male defendant was randomly assigned a more stereotypically Black or White name from our archival study. Results: Controlling for a wide array of factors—including criminal record—we found that inmates with more stereotypically Black versus White first names received longer sentences β = 0.09, 95% confidence interval (95% CI) [0.01, 0.16]: 409 days longer for names 1 standard deviation above versus below the mean on racial stereotypicality. In our experiment, participant judges recommended significantly longer sentences to Black inmates with more stereotypically Black names above and beyond the severity of the charges or their criminal history, β = 0.07, 95% CI [0.02, 0.13]. Conclusions: Our results identify how racial associations with first names can bias consequential sentencing decisions despite the impartial aims of the legal system. More broadly, our findings illustrate how racial biases manifest in distinctions made among members of historically marginalized groups, not just between members of different groups.

Law and Human Behavior, 47(1), 169–181, 2023

By Peter S. Lehmann 

Objective: Prior research consistently demonstrates that defendants convicted at trial are sentenced more harshly than those who plead guilty. Additionally, a vast literature has shown that Black and Hispanic defendants, and especially young minority males, are particularly disadvantaged in sentencing, though these effects may be conditional on various legal and case-processing factors. However, it remains unclear how the mode of conviction might moderate these inequalities according to offenders’ combined race/ethnicity, gender, and age. Hypotheses: I expected that mode of conviction would moderate the joint effects of race/ ethnicity, gender, and age on the imposition of a sentence to prison and on sentence length such that young minority males convicted at trial would receive more severe punishments than members of other subgroups. Method: The analyses made use of data on defendants sentenced for noncapital felony crimes in Florida circuit courts over a 12-year period (N = 1,076,500). Hurdle regression models and marginal effects analysis were used. Results: Greater sentencing disparities in absolute as well as relative terms between young minority males and other race/ethnicity, gender, and age subgroups were found among trial cases than among plea cases. Further, Black and Hispanic males were subjected to trial taxes that were substantially larger than those of other subgroups. Conclusions: These findings suggest that defendants who plead guilty are generally sentenced according to predictable and standardized “going rates” of punishment, whereas the enhanced discretion afforded judges in trial cases as well as racialized “bad facts” about defendants that emerge at trial may drive inequalities in punishment. Thus, extralegal sentencing disparities tied to mode of conviction are an area in which criminal justice reform efforts might be directed. 

Law and Human Behavior © 2023 American Psychological Association 2023, Vol. 47, No. 1, 201–216