By Prison Reform Trust

The use of force in prison is only justifiable if it is legal, proportionate in the circumstances, reasonable, and necessary.

This briefing brings together evidence that, we think, casts doubt on the legality of the use of PAVA spray in prisons.

The first section describes the expansion of PAVA availability in adult male prisons. The second discusses the evidence of disproportionate use of PAVA by race, religion and disability. Third, we show how disproportionate use of PAVA has become the norm. Fourth, we explain the legal context, and argue that the current provision of PAVA spray to prison establishments does not comply with HMPPS’ legal obligations. Fifth, we re-examine arguments that PAVA spray contributes to prison safety. Finally, building on evidence, the briefing makes recommendations designed to reduce the disproportionate use of PAVA.

London: Prison Reform Trust, 2023. 18p.

By Sophie Ellis and Alex Hewson

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

London: Prison Reform Trust, 2024. 86p.

By Nisha Waller and Naima Sakande

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

Race & Class, online first, 2024.

By Kees Sterk

For the identity and well-functioning of Europe, independent national judiciaries are key, and the selection processes of judges and Court Presidents essential. During the last decade, however, several European Governments have been undermining this by trying to establish political control over national judges, especially through political dominance over the selection and appointment processes for judges and Court Presidents.

In his inaugural speech, Sterk addresses the topic of selection processes, both on substance as well as on procedure. He analyses the case law of the European Court of Justice as well as the European Court of Human Rights, and the enforcement policies of the European Commission. 

Sterk identifies problems and recommends five steps to protect independent justice in Europe including the systemic enforcement gap, an effective enforcement duty, the standards for selection bodies, a duty to reason selection decisions, and on limiting the power of the executive to refuse candidates selected by selection bodies.

The Hague: Eleven International Publishing, 2023. 56p.

By Coletta A. Youngers

The incarceration of women is growing at alarming rates worldwide and in Latin America it is driven by strict drug laws, with devastating consequences for the women impacted and their families. Their stories unveil contexts of poverty, lack of opportunity, and physical and sexual violence, and also reveal the discrimination of unjust legal systems and societies plagued by stigmatization and patriarchal attitudes. But they are also stories of resilience, as women coming out of prison in Latin America today are organizing and fighting for their human rights and the right to live with dignity.

In response to the growing crisis of women’s incarceration in Latin America, in 2015 organizations, experts and activists created a Working Group on Women, Drug Policies, and Incarceration, led by the Washington Office on Latin America (WOLA), the International Drug Policy Consortium (IDPC), and the Colombian NGO, Centro de Estudios de Derechos, Justicia y Sociedad – Dejusticia. Our objective is to significantly reduce the number of women deprived of liberty in Latin America, providing analysis and public policy recommendations and participating in advocacy initiatives at the international, regional, and national levels.

The purpose of this report is to reflect on almost ten years of collective research and joint advocacy by the working group, its achievements and disappointments, as well as challenges and opportunities for the future.

Washington, DC: Washington Office on Latin America, 2023.. 82p.

By User Voice

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

London: User Voice, 2023. 41p

By Andrew Galley,  Frank Sirotich, and Sara Rodrigues  

This report is based on a scoping review by a team of researchers at the Canadian Mental Health Association (CMHA), who analyzed existing research and policy documents on the mental health care needs of justice-involved persons in Canada’s criminal justice system and in peer jurisdictions. It aims to guide future research and policy development by highlighting what is currently known about this topic and what knowledge gaps may exist in the literature on mental health in the criminal justice system. While it highlights research on the prevalence of mental health problems and mental illness in the criminal justice system, experiences of justice-involved persons with mental health problems and mental illness, and promising practices and principles for mental health care, it is not intended to be a comprehensive review of the literature.   

Ottawa: Mental Health Commission of Canada , 2020. 124p.

By Birth Companions

In this briefing paper we shine a spotlight on the issues faced by women who have contact with both the criminal justice and children’s social care systems during pregnancy and the first two years of their child’s life. We outline the context, highlight key evidence, and share some powerful contributions from our Lived Experience Team who have experienced this ‘dual contact’. 

UK: Birth Companions, 2023. 25p.

By Donald Kerwin & Brendan Kerwin

This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.

United States, Journal on Migration and Human Security. 2024, 10pg

By The United States Sentencing Commission

This report examines variations in sentencing practices—and corresponding variations in sentencing outcomes—in the federal courts since the Supreme Court’s 2005 decision in United States v. Booker. The United States Sentencing Commission analyzed the sentencing practices of federal district judges in 30 major cities located throughout the country to determine the extent of the judges’ variations in imposing sentences in relation to the city average. This report is the second in a series of reports updating the analyses and findings of the Commission’s 2012 Report on the Continuing Impact of United States v. Booker on Federal Sentencing.

Washington, DC: United States Sentencing Commission, 2019. 138p.

By The United States Sentencing Commission

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.  The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system.  In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker.

Washington, DC: United States Sentencing Commission, 2020. 100p.

By Ian K. Belton, Mandeep K. Dhami

Personal mitigating factors (PMFs) such as good character, remorse and addressing addiction help sentencers evaluate an offender's past, present and future behavior. We analyzed data from the 2011–2014 Crown Court Sentencing Surveys in England and Wales to examine the relationship between these PMFs and custodial sentences passed on assault and burglary offenses, controlling for other sentencing relevant factors. Beyond revealing the distribution and co-occurrence of the three PMFs, it was found that good character, remorse and addressing addiction all had a significant mitigating effect. The effects of addressing addiction were the strongest of the three across both offense types, while good character had a stronger effect on burglary than assault. In addition, some mitigating factors appear to be underweighted when they occur together. We consider the implications of these findings for sentencing policy and practice.

Journal of Empirical Legal Studies, Volume21, Issue1, March 2024, Pages 208-239

By Kelly Lyn Mitchell

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

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

By Sarah Shannon

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

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

By Tyler Giles

This paper estimates the government revenue, recidivism, and financial health effects of an increase in misdemeanor fines/fees. I leverage a statutory change in Milwaukee whereby convicted defendants were assessed an average additional $279 if sentenced after a certain date. Exploitation of this date in a regression discontinuity design reveals that about 28 cents of each additional dollar charged was eventually collected, often through the automatic application of posted cash bail to court debt. The increase in fines/fees increased the likelihood of felony recidivism, especially among Black defendants, but had no effect on credit score or other credit report outcomes.

Working paper, 2023. 75p

By Keith Finlay, Matthew Gross, Carl Lieberman, Elizabeth Luh and Michael Mueller-Smith

We estimate the impact of financial sanctions in the U.S. criminal justice system using nine distinct natural experiments across five states. These regression discontinuities capture a range of enforcement levels ($17–$6,000) and institutional environments, providing robust causal evidence and external validity. We leverage survey and administrative data to consider a variety of short and long-term outcomes including employment, recidivism, household expenditures, spousal spillovers, and other self-reported measures of well-being. We find consistent, robust evidence of precise null effects on the population, including ruling out long-run impacts larger than -$347–$168 in annual earnings and -0.002–0.01 in annual convictions. 

Unpublished paper, 2023. 60p.

By Samuel Norris and Evan K. Rose

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

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

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

Abstract:

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

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

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

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

By Brittany Friedman

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

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