By The Texas Sunset Advisory Commission

 As the criminal justice system works through the final lingering effects of the COVID-19 pandemic on court backlogs, the Texas Department of Criminal Justice (TDCJ) along with the other adult criminal justice entities subject to this Sunset review — the Board of Pardons and Paroles (BPP), Windham School District, and Correctional Managed Health Care Committee — are once again at a critical point. This Sunset review occurred in the context of TDCJ’s systemwide prison lockdown due to unprecedented levels of contraband and violence and inmate population projections that exceed TDCJ’s operational capacity, raising basic questions about TDCJ’s ability to handle its current and future realities. The state’s criminal justice entities are confronting serious challenges in executing their mission to safely confine, supervise, and provide services for adults convicted of certain crimes in Texas. This Sunset review therefore seeks to best position TDCJ and its counterparts so that they are able to prevent current problems from becoming unmanageable, widespread crises in the coming years. While the sheer size and complexity of Texas’ sprawling prison system is unique, TDCJ faces the same national trend as its peers in other states — hiring people to work in corrections is difficult. The Legislature and TDCJ have long recognized correctional officers, who play a vital frontline role overseeing Sunset seeks to position TDCJ to be able to prevent problems from becoming widespread crises. incarcerated adults, as deserving of additional attention and resources for recruitment and retention. Yet the uncomfortable reality the Sunset review found is some of Texas’ prisons are located in places where hiring sufficient correctional staff is nearly impossible. As that reality is unlikely to change, TDCJ is forced to spend significantly on transporting staff around the state and maintaining facilities that hold thousands of vacant, unusable beds. Furthermore, while difficulty hiring correctional staff isn’t unique to this state, the agency has not done enough to mitigate this problem. Serious and systemic deficiencies in human resources functions, which form the backbone of effective agency operations, contribute to agencywide hiring and retention problems, with more than half of TDCJ divisions at a vacancy rate of at least 20 percent in fiscal year 2023. This staffing crisis extends to parole officers who supervise releasees in Texas communities and several other critical divisions. Ultimately, the Sunset review found TDCJ must concurrently plan for the future to locate or expand facilities in places where the agency can adequately staff them while also greatly improving internal human resources functions and processes to retain existing staff. T he Sunset review also found TDCJ to be in significant need of modernization, as decades-old technology and paper-based and manual processes limit the agency’s ability to effectively and efficiently leverage its $3.9 billion annual budget. But the lack of modernization is not limited to technology. Without better strategic planning and data practices, the agency will continue to reactively lurch from emergency to emergency. Additionally, TDCJ’s approach  to rehabilitation programs, many of which inform BPP’s determination of the potential for an inmate to safely reenter the community, suffer from deficiencies that undermine the Legislature’s significant investment in these programs. To overcome these deficiencies, this review recommends requiring enhanced rehabilitation planning and evaluation to better ensure beneficial program outcomes rather than simply encouraging participation regardless of efficacy. T his Sunset review also took a close look at the parole system — both the processes by which BPP decides whether to grant early release to eligible inmates and the processes by which TDCJ’s parole officers supervise releasees. Given the high stakes of inmates reentering the community and the discretionary nature of making such decisions, BPP voters understandably take a cautious approach. As it has in previous reviews of BPP, Sunset focused on improved fairness, consistency, and transparency of BPP’s decision-making processes. Separately, the review also found the need for more efficient TDCJ parole processes to ease burdens on the often underappreciated parole staff who serve a critical public safety role in Texas communities. T his review did not have findings or recommendations in two key areas: probation and correctional health care. TDCJ’s role in probation is limited to maintaining standards for and providing funding to local Community Supervision and Corrections Departments (CSCDs). Overall, Sunset staff found TDCJ adequately performs this function, and many ideas for changes to probation largely amounted to calls for increased funding. To this end, TDCJ has requested through its 2026-27 Legislative Appropriations Request additional funding to support both CSCD staff salaries and supervision activities. Additionally, this review found the Correctional Managed Health Care Committee’s role, which primarily is to develop a statewide managed healthcare plan, to be functioning adequately. TDCJ works effectively with its contracted partners at the Texas Tech University Health Sciences Center and the University of Texas Medical Branch to deliver healthcare services as the Legislature intended. Despite finding considerable areas for improvement across the criminal justice entities under review, Sunset staff determined that Texas continues to benefit from TDCJ’s oversight and management of a system in which a single state agency supports probation and directly provides incarceration and parole supervision. Accordingly, Sunset staff recommends continuing TDCJ for 12 years and aligning its Sunset review to coincide with that of the other criminal justice entities. The following material highlights Sunset staff’s key recommendations for the Texas Department of Criminal Justice, Board of Pardons and Paroles, Windham School District, and Correctional Managed Health Care Committee. 

Austin, TX: The Commission, 2024. 189p.

By Besiki Luka Kutateladze, R. R. Dunlea, Don Stemen, & Melba Pearson

The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices. The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices. The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices.

Prosecutorial Performance Indicators, 2023. 7p.

By Oli Hutt, Head of Analytics | Greg O’Meara, Analyst

Rising demand and squeezed budgets over the past decade have left the criminal justice system (CJS) struggling to manage day-to-day. Changes to address a specific issue in one agency cascade unintentional negative consequences, creating friction elsewhere which slows cases and reduces the likelihood of successful outcomes. Better modeling of the systemic impact of individual agency choices is required to prevent the system from lurching with every change. The lack of a joined-up accountability structure severely hinders the efficacy of the CJS as a whole. Whilst individual agencies have a common aim, their objectives and resources are often unaligned or even in direct conflict. This impacts on victims, witnesses, and defendants who experience a highly fragmented, frustrating, and stressful process. Cooperation is held back by a lack of basic data sharing. Better standardization and coordination is needed on basics such as data format, transfer, frequency, etc.) and co-design of systems to enable more joined-up working. A duty to share data should be considered as a way to drive greater cooperation across the CJS. Practitioners from across the CJS are clear on what needs to change to make this happen. However, the willingness of agencies to work together is limited- in part because they lack the resources required. There are success stories, but these are typically localized and not embedded. Yet there is cause for hope. Better use of technology can enable better decision-making and improve efficiency and effectiveness; our recommendations are focused on these objectives. Relatively minor investment would deliver targeted solutions e.g.- digital devices in prisons and courts, redaction tools for police and data sharing agreements. By reducing data entry and data error, these would free up police and prison officer time and remove delays in data sharing across the CJS. However, these require the central government to invest to realize the systemic benefit they could deliver. Technology also offers relief to recruitment and morale issues by automating standard processes that are inconsistently applied and time-consuming to learn, and by removing the burden on staff often required to work outside their skill set. Agencies should recruit and retain specialist (particularly technical) staff rather than relying on current staff to cover these needs inefficiently. Longer-term, more fundamental, systemic change is required, including a single accountability structure for the entire CJS; a victim/witness-centric design that maximizes engagement throughout the process and leads to swift and fair outcomes for all through system-wide case management and data sharing. These longer-term requirements should not stop the government from progressing the changes outlined above, and other recommendations that can be implemented immediately at a relatively low cost. The greatest risk facing the criminal justice system is inaction

London: Crest Advisory, 2022. 42p.

By Amanda Kraus, Elizabeth Clelan, Heather Wolters, Patty Kannapel

This study was sponsored by the Office of the Executive Director for Force Resiliency within the Office of the Under Secretary of Defense for Personnel and Readiness to address two taskings from the FY 2020 National Defense Authorization Act (NDAA):

1. Establish criteria for determining when to review data indicating that racial, ethnic, and gender (REG) disparities in military justice outcomes may exist and provide guidance for how to conduct that review.

2. Conduct an evaluation to identify the causes of identified REG disparities and take steps to address them.

To address the first tasking, the study team combined emerging best practices from the civilian criminal justice system (CCJS) with a review of the military justice system (MJS) to create guidance for data collection, analysis, and reporting that will allow the services to use administrative data to conduct ongoing assessments of how members of all REG groups are treated within the MJS. To address the second tasking, the team used multivariate statistical techniques to analyze available data with the goal of measuring REG disparities in MJS outcomes, holding constant other relevant factors. This report addresses the first tasking; the second tasking is addressed in a companion report titled, Exploring Racial, Ethnic, and Gender Disparities in the Military Justice System.

GUIDING CONCEPTS

To guide our approach to addressing the NDAA tasking, we drew on four concepts related to justice and bias and considered their implications for data collection and analysis.

DISTRIBUTIVE VERSUS PROCEDURAL JUSTICE

Distributive justice relates to the distribution of outcomes within a community. In the MJS context, distributive justice relates directly to REG outcome disparities and suggests that the services should collect data to determine whether people who are the same except for their REG characteristics experience the same MJS outcomes. Procedural justice relates to the system that generates the outcomes. Procedural justice is defined in terms of the rules of the system and the extent to which they are applied consistently and impartially and communicated clearly. To assess procedural justice in the MJS, it is necessary to collect and analyze data on underlying processes, not just final outcomes. It is possible for procedural injustices to occur without generating outcome disparities, and it is possible for a system to be procedurally fair but to generate different outcomes for members of different REG groups. Thus, on their own, average outcome disparities are not complete indicators of bias. 

INDIVIDUAL VERSUS INSTITUTIONAL BIAS

Generally, bias is defined as prejudice for or against one person or group of people, especially in a way considered to be unfair. To cause MJS outcome disparities, such prejudices must be turned into biased actions, which can occur at the individual or institutional level. In the context of the MJS, individual bias is exercised by individual actors within the system through their individual decision-making discretion. It can be both explicit and implicit. Because individual bias is exercised through discretionary decision-making, finding evidence of it in data calls for identifying places in the system where individual discretion matters most to see if this is where disparities occur. Institutional bias is present when the policies, procedures, and practices that define a system consistently create positive or negative outcomes based an individual’s REG status. It can be intentional or unintentional. To identify the presence of institutional bias in the MJS, it is necessary to collect and analyze data that reflect outcomes that are guided by regulation or policy.

CONCERNS ABOUT BIAS IN THE MJS

Bias in the MJS—both real and perceived—can decrease the effectiveness of the MJS and thereby degrade good order and discipline and reduce warfighting readiness. There are widespread and persistent perceptions that the MJS is biased, and these perceptions exist both inside the military, especially among members of color, and outside the military, among the American public and members of Congress.

The broader social context in which concerns about bias are formed matters. Although the services have their own justice system and control over how that system is implemented, their members are drawn from the American population and public support is necessary for continued recruiting and funding. Thus, concerns about REG bias in the MJS will ebb and flow as they ebb and flow in the national culture and they may arise from within or without.

The quality and presentation of data and data analysis also matter. Over the years, analyses of MJS data have done little to alleviate concerns about bias. Given the persistence of these concerns, it makes sense to create a robust system for data collection, rigorous analysis, and appropriate reporting to enable detailed assessments of MJS outcomes and the policies and practices that produce them.

THE MJS

To identify points in the MJS where institutions and individuals apply discretion, as well as important MJS outcomes to study, we created a chart that maps how a case flows through four phases of the MJS—incident processing, pre-trial/pre-hearing, adjudication and sentencing, and post-trial/post-hearing—and identified key steps in each phase.

A main source of institutional discretion in the MJS lies outside the system. Given that servicemembers can enter the system if they are accused of disobeying a regulation, institutional choices about the nature and design of regulations will affect MJS outcomes. Individual discretion is more likely to be applied within the MJS, at different points by different actors. The most individual discretion rests with commanding officers during the incident processing phase and, in later phases, along the disciplinary path and the summary court-martial branch of the judicial path. Once a case is referred to special or general court-martial, discretion is spread across more people. Actors with significant discretionary power on the judicial path include convening authorities, who are military commanders with little or no legal training, and judge advocates, who are legal professionals serving as military judges and trial and defense counsels.

As a whole, the flowchart highlights the importance of considering the full range of outcomes because movement through the system is determined by the outcome at each successive step along the relevant path. The steps within each phase identify the important outcomes.

ADDRESSING MJS BIAS WITH ADMINISTRATIVE DATA

The primary benefit of using administrative data to measure REG disparities in MJS outcomes is that it creates an evidence-based picture of MJS outcomes that distinguishes between isolated incidents and widespread problems. To generate meaningful measures of these disparities, it is necessary to use multivariate analytical techniques that allow researchers to measure REG outcome disparities while accounting for other factors that affect MJS outcomes. The more relevant other factors that can be included in the model, the more likely it is to hold “all else” equal. If REG disparities still exist after accounting for other factors, it is likely that the outcome differences are directly related to REG. Such a finding does not prove that bias exists, but it takes the other factors off the table. The multivariate techniques we identified range in technical sophistication and resource requirements. Disaggregating raw data by multiple outcomes and factors is the easiest of the four approaches we identified, and it can be done by agency staff. While not as conclusive as approaches that control for multiple factors simultaneously, disaggregation provides a more complete picture than bivariate analysis and helps agency staff make informed decisions about where to focus more technical analyses and scarce analytical resources. Used together and on a regular basis, disaggregation and the more complicated approaches provide the basis for ongoing monitoring of REG outcomes to identify and address disparities before they become persistent or systemic. Existing MJS and other reporting requirements provide a natural schedule for conducting assessments and reporting their results.

Application of valid multivariate techniques requires detailed data. Current Department of Defense guidance directs the services to collect nearly all the desired data elements, so if the guidance is implemented, they should be well positioned to conduct meaningful assessments of MJS outcomes. There are two caveats to this conclusion. First, there may be gaps for information on investigations and disciplinary outcomes. Second, the services may not have the resources to implement the data collection guidance. It may be an unfunded mandate.

Finally, the tasking from the FY 2020 NDAA asked for criteria to determine when to further review data indicating that REG disparities in MJS outcomes may exist. There is no scientific or social consensus about which criterion to use or what level of disparity equates to bias. Therefore, the services should work with internal and external stakeholders to select multiple criteria based on the absolute size of a disparity, its statistical significance, and the number of people it affects.

RECOMMENDATIONS TO ADDRESS THE NDAA TASKING

We recommend that the services do not conduct detailed assessments of MJS data only in response to disparities measured by bivariate metrics. Instead, assessments should be conducted regularly using the blueprint provided by lessons learned from the CCJS:

Step 1. Work with internal and external stakeholders to identify issues of concern, set priorities, and develop decision-making criteria

Step 2. Create an analysis plan based on the concerns and priorities identified in Step 1

Step 3. Collect data on MJS outcomes (including nonjudicial outcomes) and relevant control variables in easy-to-use electronic records management systems and ensure they are regularly updated

Step 4. Execute the analysis plan from Step 2 using appropriate quantitative and/or qualitative methods

Step 5. Regularly and transparently report assessment results to all the stakeholders as appropriate

Step 6. Make policy decisions about how to address REG outcome disparities based on the established priorities and criteria

Arlington VA: CNA, 2023. 116p

By Amanda Kraus, Elizabeth Clelan, Dan Leeds, Sarah Wilson with Cathy Hiatt, Jared Huff, Dave Reese

Section 540I of the Fiscal Year 2020 National Defense Authorization Act (FY 2020 NDAA) required the secretary of defense, in consultation with the secretaries of the military departments and the secretary of homeland security, to:

• Issue guidance that establishes criteria to determine when data indicating possible racial, ethnic, or gender (REG) disparities in the military justice process should be further reviewed and describes how such a review should be conducted.

• Conduct an evaluation to identify the causes of any REG disparities identified in the military justice system (MJS) and take steps to address the identified causes, as appropriate.

The Office of the Executive Director for Force Resiliency within the Office of the Under Secretary of Defense for Personnel and Readiness asked CNA to provide analytic support to fulfill these requirements. CNA addressed four research questions:

1. What data elements should be tracked, and what disparity indicators should the Department of Defense (DOD) use to monitor trends in MJS outcomes and take appropriate policy actions?

2. How much of the required data currently exist and to what extent are they standardized across the services?

3. Do the existing MJS data reveal any differences in military justice outcomes by REG?

4. Can we identify any specific factors (including bias) that contributed to observed outcome disparities?

The results for the first research question, which support fulfilling the first NDAA requirement, are reported in the document titled, How to Use Administrative Data to Measure and Interpret Racial, Ethnic, and Gender Disparities in Military Justice Outcomes. This report describes how we addressed the remaining three research questions to support fulfilling the second NDAA requirement.

APPROACH

To manage the scope of this effort within the study resources, we limit our analyses to the regular, active duty enlisted forces of each service. To execute the analyses, we constructed multiple datasets for each service, with each dataset comprising records of MJS incidents reported and resolved over the seven years from fiscal year (FY) 2014 through FY 2020. Each incident record includes descriptive features of the incident, including the REG of the accused servicemember. The constructed datasets follow each incident record through various steps in the MJS, but no dataset follows incidents seamlessly from initial reporting to final resolution and they vary in terms of level of detail. Thus, our dataset construction also served as a check on data completeness and allowed us to determine which REG disparities in incident outcomes can currently be tracked for each service.

We then applied quantitative methods (primarily regression analysis) to calculate unconditional and conditional service-specific REG disparity measures for as many MJS outcomes as the data allowed, controlling for other descriptive features of the offender and the incident. Unconditional disparities are measured for the first-observed outcome in each dataset and are based on comparisons between those experiencing the outcome and those in the service’s entire enlisted population. Conditional disparities are measured for outcomes that occur later in the MJS process and are based on comparisons between the servicemembers who experienced the outcome and those who experienced the outcome associated with the previous observed step in the MJS process. For example, for some services, we calculate REG disparities in guilty findings conditional on having completed nonjudicial punishment (NJP) or court-martial (CM) proceedings. This allows us to determine accurately where REG disparities first appear in the MJS and how long they persist.

RESULTS

There are many detailed results presented in the report. Here, we summarize these results by answering the research questions they addressed.

Research question #2: How much of the required data currently exist and to what extent are they standardized across the services?

Most of the MJS data exist and the services generally collect the same data elements, but the ways the data are collected and stored result in data elements and structures that do not always support quantitative analysis and they are not consistent across services. Specifically, despite recent service efforts to improve data collection and storage, the data are still stored in multiple data systems across multiple commands within each service. Thus, it remains cumbersome to follow incidents through the MJS and to prepare the data necessary to compute REG disparities. This, in turn, limits REG disparity analysis for all MJS incidents and creates outcomes that vary by service.

Research question #3: Do the existing MJS data reveal any differences in military justice outcomes by REG?

Our data analysis confirms that there were significant racial and gender disparities in MJS outcomes during the study period.

Across services and outcomes, we found positive racial disparities: in every service, Black enlisted personnel were more likely than White enlisted personnel to be investigated, be involved in NJP in some way, and be involved in CMs in some way, even after controlling for the other factors included in the regression models. Yet, conditional on a case progressing far enough in the MJS to have an adjudicated outcome, Black enlisted personnel were no more likely—and, in many cases, were less likely—than their White counterparts to be found guilty.

In contrast, across services and outcomes, we found negative gender disparities: in every service, female enlisted personnel were less likely than male enlisted personnel to enter the MJS and, conditional on the case progressing to an adjudication point, they were less likely to be found guilty.

Finally, we found few significant ethnic disparities in MJS outcomes. Across services and for most outcomes, Hispanic and non-Hispanic enlisted personnel experienced the modeled outcomes at similar rates.

Research question #4: Can we identify any specific factors (including bias) that contributed to observed outcome disparities?

It is impossible to determine definitively whether bias exists in the MJS solely based on statistical analysis of administrative data records such as those we used in this study. The analysis did, however, allow us to draw two sets of conclusions regarding causes of MJS disparities.

First, controlling for offender-, incident-, and MJS process-related factors did not eliminate REG disparities, and no specific factor emerged as a leading determinant of MJS disparities. Thus, bias remains on the table as a potential cause.

Second, by using the data to show where in the MJS disparities occur, we provide information to help the services decide where to investigate further. Specifically, the largest positive racial disparities were associated with the first-observed outcomes. This suggests that it is important to get more clarity on how and why Black enlisted servicemembers enter the MJS. It would be especially valuable to better understand how outcomes differ depending on whether the initial investigation is conducted by a professional military law enforcement agency (LEA) or by the command and how commanding officers (COs) make their disposition decisions, and to evaluate the relative strengths of cases brought against Black versus White servicemembers.

RECOMMENDATIONS RELATED TO DATA COLLECTION AND ANALYSIS

We make the following recommendations to improve data collection and analytical processes.Provide the services with sufficient funding and support to ensure that MJS incident and case data are collected, stored, and made usable for conditional REG disparity analysis at each step in the MJS.For future data assessments, follow the two key steps recommended in the companion document: support service-specific studies and provide the time and structure for effective collaboration between researchers and MJS experts in each service.Continue efforts to collect complete NJP information.Include common case control numbers in all MJS data systems so that datasets associated with different parts of the MJS can be merged and cases can be followed from investigation through initial disposition to final resolution.Populate variables related to offender characteristics, especially REG, by pulling data from authoritative personnel records.Ensure that all relevant dates are populated.Define all data fields to include all potential outcomes or values, including indicators that a variable is not applicable for a given incident or that the incident has not yet proceeded far enough through the MJS for the variable to apply.Use dropdown menus to minimize data error and inconsistency due to hand entry.

RECOMMENDATIONS RELATED TO REG DISPARITIES

To address the identified MJS outcome disparities, we make the following recommendations that range from specific to general:Seek to address disparities, not bias per se. As reported in the companion document, regardless of their causes, disparities may create perceptions of bias and perceptions of bias have negative effects not only on the effectiveness of the MJS, but also readiness.Begin by studying how outcomes differ depending on whether the initial investigation is conducted by a professional military LEA or by the command, how COs make their disposition decisions, and the relative strengths of cases brought against Black versus White servicemembers.Follow additional steps recommended in the companion document. Specifically, conduct assessments and report results on a regular basis. Do not wait until negative publicity occurs and do not respond only to disparities identified in raw data.Develop procedures and systems for holding leaders accountable for the proper use of discretion across the full range of MJS outcomes. Discretion is a necessary part of law enforcement and justice, but it is also where bias (implicit or explicit) can enter. It is leadership’s job to think more broadly about the role of discretion in the MJS.

Arlington, VA: CNA, 2023. 158p.

By: Catherine H. Augustine, Andrea Phillips, Susannah Faxon-Mills, Abigail Kessler

In this report, the authors describe how implementation of restorative practices in educational settings and a juvenile diversion program run by the National Conflict Resolution Center (NCRC) in San Diego County are working to stem the school-to-prison pipeline. The authors focus on how NCRC is serving as an intermediary organization for youth-focused programs, signs of success, opportunities to improve, and insights for other communities.

RAND Research—Published Sep 30, 2024

By: Stephanie Brooks Holliday, Elizabeth Marsolais, Samantha Matthews

The Los Angeles County Rapid Diversion Program (RDP) is a pretrial mental health diversion program operating in seven courthouses in Los Angeles County, California. Established in 2019 as a faster approach to mental health diversion compared with the traditional approach, RDP allows for the diversion of individuals who have a mental health diagnosis or substance use disorder and certain qualifying misdemeanor or felony charges. Individuals who complete the program have their case dismissed.

In this report, the authors present findings from a formal assessment of program implementation to date. Using a mixed-methods evaluation of program data and interviews with implementation partners and RDP graduates, they explore current program implementation, case outcomes for individuals who participate in RDP, and strengths and areas for improvement. Lessons learned from this evaluation have the potential to inform efforts to scale the program within Los Angeles County and to other counties interested in implementing a similar pretrial diversion program.

RAND—Published Sep. 30, 2024

By Scrutinize

State court judges play a crucial role in upholding constitutional protections that safeguard individuals from abuses such as unlawful stop-and-frisk, coerced interrogations, and warrantless searches. However, judges' interpretations and applications of these rights vary significantly, affecting both individual defendants and the broader community's interactions with law enforcement. This report introduces a new metric for assessing judges: Failure to protect constitutional rights against law enforcement overreach. We analyze appellate decisions to identify cases where trial court judges ruled that officers acted constitutionally in obtaining evidence, but were overturned by higher courts. Using examples from suppression reversals and other sources, we suggest that some suppression reversals not only indicate a pattern of failing to protect constitutional rights, but may also reveal a trial court judge's bias toward law enforcement. Our new analysis enhances transparency in the judicial system, empowers New Yorkers with crucial insights about the judges serving their communities, and provides decision-makers with valuable information.

Key Findings:

1. Ninety-five judges had multiple suppression decisions reversed between 2007 and 2023.

2. Approximately 38% of the reversals (153 cases) were dismissed because of a finding that the trial court judge erred in denying suppression, suggesting that some New Yorkers may have been wrongfully incarcerated due to unconstitutionally obtained evidence.

3. An additional 69 cases were overturned due to judicial errors that limited or prevented constitutional scrutiny of law enforcement actions.

Recommendations:

1. New York's court system should increase transparency by releasing all trial court judges’ suppression rulings along with hearing transcripts.

2. New York’s court system should publish annual reports containing summary data on suppression proceedings, outcomes, and other pertinent information.

New York: Scrutinize, 2024. 24p.

By  Aayushma Bastola, Research & Data Fellow; Morgan Grizzle,, et al.

While in 2023 many other urban jurisdictions around the country began to see drops in homicides and other serious violent crime that had spiked postpandemic, the District of Columbia saw rates of violent crimes, like homicide and carjackings, continue to climb.1 That summer, D.C. lawmakers passed emergency legislation with provisions related to law enforcement and the prosecution and sentencing of crimes. In March 2024 the District passed permanent legislation, the Secure DC Omnibus Amendment Act of 2024 (“SECURE DC”), which included changes to D.C. law that had been part of prior expired emergency legislation as well as several new provisions.2 Given the importance of the public’s community safety concerns and the significance of SECURE DC policy changes, this year’s D.C. Criminal Legal System Overview is different from prior editions. This report highlights several aspects of SECURE DC and provides data analyses that can be used as a baseline with which to benchmark changes in crime and incarceration that may be related to the law’s provisions. This Overview also offers data to provide an overview of the District’s criminal legal landscape and to identify who is most impacted by D.C.’s legal systems. For example, this report highlights the growing costs of incarceration and policing in D.C. — reaching over $1 billion for the first time — and the disproportionate number of Black people who are justice-involved, including as victims of crime, in the District. Finally, this report will show that there have been some encouraging changes in terms of public safety from preliminary data for the first half of 2024, including both before and after the passage of SECURE DC. This is the fourth report in which the Council for Court Excellence (CCE) has offered a snapshot of the District’s criminal legal systems. As with past reports, CCE hopes readers find this information useful as we all work to create a safer, healthier, thriving D.C.  

Washington, DC: Council for Court Excellence , 2024. 40,p.

By Jan Pospisil

KEY FINDINGS • The governor of Lakes state, Rin Tueny Mabor, rules the state with an iron fist, and is credited with reducing overall levels of inter-communal violence during his two years in office. Despite widespread allegations of human rights violations linked to his heavy-handed approach to security, he has received considerable national recognition for pacifying Lakes state. • The governor’s reputation has suffered setbacks —including public unrest over a decision to demolish informal housing in Rumbek, erected by internally displaced people, and a perceived loss of authority in his home county, Yirol West, following the contested dismissal of a county commissioner nominated by the Sudan People’s Liberation Army-in-Opposition (SPLA-IO). • Since September 2022, pastoral violence has re-emerged along the border with Warrap state, especially in Rumbek North and Cueibet counties, highlighting faults with the governor’s disarmament strategy and his emphasis on a deterrence-based approach to curbing inter-communal violence. • Despite these recent challenges, Rin Tueny appears to be interested in a national-level position. While he is seen as indispensable among national leadership in tackling insecurity in Lakes state, he has political backing to support an appointment in a high-level security sector role. 

Geneva, SWIT: Small Arms Survey, 2023. 7p.

By Jim Whitehead , Richard Franklin, Tracey Mahony   

Not finding a murder victim poses challenges for homicide investigators in solving crime, including determining where to search for the deceased’s body. Existing literature focuses on locating offenders through criminal profiling; however, this is largely based on identification through forensic evidence found at the murder site or where the victim was located. This paper considered the challenge of locating a deceased victim from the perspective of search coordinators assisting homicide investigations. Could reference to previous homicide cases provide patterns and trends that may assist in locating disposed victims quicker, thus aiding in preserving vital physical evidence and providing expedient closure for the community? Methods: Through generation of a dataset utilising all Queensland Police recorded homicides from 2004 to 2020 inclusive, statistical analysis was conducted using SPSS™ software to identify common trends and characteristics of victim disposal. These identified commonalities were used to develop the Disposed Homicide Victim Matrix (DHVM), and Search Coordinator Principles, as tools to assist search coordinators in future relevant cases. Results: The study identified four (4) key commonalities observed in the dataset, (1) East is the predominant direction for victim disposal; (2) The offender’s vehicle was the most common method of victim transport followed by carrying/dragging; (3) concealment with leaf litter and local debris was the norm, followed by no attempt at concealment; and (4) victims were moved less than 50 m from a road or track after transport. Conclusion: The DHVM can assist police search for these victims by narrowing down potential search locations. Finding a victim has implications throughout the community, providing evidence that could secure a conviction, allowing a measure of grief closure to the co-victims, and inspiring confidence in police.     

Forensic Science International: Synergy 8 (2024) 10045  

Authors Brandon L. Garrett, Duke Law School Follow, Adam M. Gershowitz, William & Mary Law School Follow, Jennifer Teitcher, Duke Law School

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations are intentional or accidental, and a host of related questions.

This Article fills a gap in the data and literature by analyzing five years of Brady claims—over 800 cases—raised in state and federal courts. We coded each case for more than forty variables to answer big-picture questions like how often Brady claims are successful and which courts are most likely to grant relief. We also studied more intricate questions such as the types of crimes and evidence at issue, whether judges deemed violations intentional or accidental, and whether judges chastised or disciplined prosecutors for failing to disclose evidence.

Our study revealed some important and surprising findings. Despite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10% of the cases in our study. Prosecutors, not police, were responsible for most violations and they were almost never referred to the Bar for discipline. While federal prosecutors are supposed to be elite highly trained lawyers, they were responsible for a disproportionate share of Brady violations. And while the federal courts are lauded as the protector of civil liberties, it was state courts that granted relief more frequently, often on direct review rather than in habeas corpus proceedings as scholars would have expected.

These findings and many others—such as petitioners having to wait on average ten years for relief for Brady violations—demonstrate that we continue to have egregious prosecutorial misconduct problems in the United States and that further study is needed. To that end, this project not only reports significant data, but also is the first step in the creation of a searchable database that we are creating to empower other researchers to further analyze how Brady claims are being litigated and adjudicated.

114 J. Crim. L. & Criminology 185 (2024).

By Suzanne M. Strong and Mark Motivans,

This report provides statistics on the number of RICO investigations concluded and persons investigated by U.S. attorneys from fiscal year (FY) 2012 to FY 2022. It also presents statistics from FY 2018 to FY 2022 on investigations concluded by U.S. attorneys with multiple persons investigated; persons prosecuted, adjudicated, and sentenced with a RICO violation as the most serious offense; persons convicted with a RICO violation as the most serious offense or as a secondary offense; and conviction rates by state or territory.

Washington, DC: Bureau of Justice Statistics (BJS), 2024. 11p.

By Christopher Slobogin

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

Unpublished paper: (August 15, 2024). 

By: SHAMENA ANWAR, JOHN ENGBERG, ISAAC M. OPPER, LEAH DION

The use of artificial intelligence (AI) methods to aid with decisionmaking in the criminal justice system has widely expanded in recent years with the increased use of risk assessments. Nowhere has this shift been more dramatic than in the widespread adoption of AI-enabled risk assessment tools to aid in pretrial detention decisions.

Despite the promise of pretrial risk assessment tools, the ways in which these tools have been implemented has limited potential progress. The vast majority of jurisdictions that have implemented these tools have essentially provided these risk assessment recommendations to judges in an advisory manner and generally cannot require judges to follow the recommendations when making their pretrial release decisions. Studies indicate that judges frequently ignore the recommendations of the risk assessment instrument; as a result, the adoption of these risk assessment tools has not had much impact on reducing the use of monetary bail and pretrial detention.

In this report, the authors investigate the factors that are predictive of whether judges follow risk assessment recommendations and identify the impacts to pretrial detention, public safety, and racial disparities when judges follow the recommendations more often.

RAND Research - Published Sep. 5, 2024

May Contain Markup

By Herschel, William J., Sir

Historical Development: The document details the origins of fingerprinting, highlighting Sir William J. Herschel's pioneering work in the 19th century.

Practical Applications: Herschel's use of fingerprints for identification of various official capacities, such as criminal courts and pension verification, is emphasized.

Scientific Validation: The document discusses the permanence of fingerprint patterns over time, which Herschel confirmed through repeated experiments.

Influence and Legacy: Herschel's work laid the foundation for modern fingerprint classification systems, further developed by Sir Francis Galtonand & Sir Edward Richard Henry.

DigiCat, Nov 22, 2022, 112 pages

By Scottish Government, Safer Communities Directorate

This paper presents a review of quantitative evidence on women in the justice system. It is drawn from a range of data sources, of which the most prominent are Official Statistics produced by the Scottish Government's Justice Analytical Services.

Whilst the analysis in this paper seeks to highlight (and quantify) the differences and similarities between women and men in the justice system, it does not by itself explain why these may exist. Social research and other qualitative evidence would be more appropriate in providing further context for this. For example, qualitative research with victims-survivors of rape and sexual assault as they journey through the justice system in Scotland is available from the Scottish Centre for Crime & Justice Research[1]. Qualitative evidence which provides an insight into the impact of Coronavirus (COVID-19) restrictions on people experiencing domestic abuse and other forms of violence against women and girls is available on the Scottish Government website[2].

Key findings from these statistics are that:

• Women account for a much smaller proportion of those involved across Scotland's justice system than men (for example prosecutions, convictions, people in prison). This pattern has been constant over time, and is similar to what is seen in other parts of the UK[3].

• Women and men tend to experience crime in different ways, with a significant factor being the type of crime experienced, including violence. Women are much more likely to experience sexual victimisation and to be victims of partner abuse, while men are more likely to experience serious non-sexual violence (such as homicide and serious assault).

• Feelings of safety have improved over the longer term for women, but have remained consistently behind those of men. This may, at least in part, explain why a greater proportion of women are worried about experiencing crime than men – despite actual experiences of overall crime victimisation being similar for both women and men in Scotland.

• Women represent a minority of those convicted of a crime and of the prison population in Scotland, a feature that is consistent over time. Women also tend to be convicted of different types of crime when compared to men.

• Women generally receive shorter sentences than men, are less likely to receive a custodial sentence and are reconvicted less often on average.

• Looking at views on the criminal justice system, women are less confident in the system than men on a number of measures asked about in the Scottish Crime and Justice Survey (for example, confidence that the criminal justice system allows all those accused of crimes to get a fair trial regardless of who they are).

• Justice organisations in Scotland show a mixed picture in terms of their workforce composition. Generally, females continue to make up a minority of more senior roles across the board. While there is targeted effort within organisations in terms of improving diversity, some continue to have a widely male dominated workforce, while others have female employees as the clear majority of their staff.

Edinburgh: Scottish Government, 2022. 34p.

By Scottish Government, Safer Communities Directorate

Summary

• Research shows further evidence on the negative impact of rape myths and misconceptions on the complainer, but also raises concerns about perceived fairness by legal professionals when using single judge trials.

• Overall, there is a lack of empirical research comparing modes of trial for rape cases, which makes it difficult to draw any robust conclusions in relation to their impact on the complainer, rights of the accused, public confidence in the justice system and conviction rates.

• That said, there are some tentative indications that the complainer experience may be improved by a single judge trial model, but it might be more dependent on wider court procedures and approaches to (cross) examination than the mode of trial itself.

• Providing a written reason of verdict is seen as a clear advantage of single judge trials, both for the complainer and accused.

• Studies suggest that considering the rights of the accused should include agreeing on the justifications/criteria for single judge trials, establishing clear procedures to ensure consistency and transparency and addressing (implicit) bias and diversity in the judiciary.

• Significantly, where single judge trials for serious offences have been adopted, e.g. in countries such as New Zealand, Australia, Canada and the United States, it is by choice of the accused. There were no instances found of jurisdictions introducing alternatives to jury trials specifically for rape cases.

• There is no clear data on the effect of changing mode of trial on public confidence in justice system, although studies have shown a clear support of the public for the jury system. These studies however, did not ask directly about changing mode of trial in specific cases, such as for rape offences.

• The evidence is mixed on conviction rates, from lower, to no difference, to higher rates of conviction for cases tried by single judge, although, again, the evidence is limited and not specific to rape cases.

• Literature discussing mixed panels of professional and lay judges point to the possibility to mitigate concerns about the lack of community engagement and potential bias with one decision-maker, while preserving some of the advantages of a single judge trial such as clearer judicial direction and a reasoned written verdict.

• Overall, the literature suggest that to understand the impact of a change in mode of trial, it is important to take into account how a new mode of trial interacts with already established procedures in the criminal justice system. To improve the complainer experience additional reflection would be required on pre-trial and cross-examination procedures and training given to legal professionals.

• Taking into account that the evidence presented is limited and not always specific to sexual offences, it is difficult to make a clear translation to the context of a Scottish pilot for rape offences. A pilot can offer valuable and much needed empirical data and insight on the effects of a change in mode of trial.

Edinburgh: Scottish Government Safer Communities Directorate, 2023. 40p.

By Scottish Government, Social Research

In late 2019, the Scottish Government commissioned an independent research study into decision making in relation to refusal of bail in Scotland. The overall aim of the research was to explore how decision making works in practice, as well as to gather perceptions on bail options. The research was carried out over two phases. Phase 1 involved online surveys of members of the Judiciary and Crown Office and Procurator Fiscal (COPFS) staff, the findings from which were published in an Interim Findings report in July 2022.

This report presents findings from Phase 2 of the research which involved a series of qualitative interviews with key justice stakeholders (Sheriffs, COPFS staff, defence solicitors and social work staff) to add breadth and context to the survey data presented in the Phase 1 report. A case study approach was taken with fieldwork carried out in six different case study areas, selected on the basis of broad geographical coverage, as well as a mix of courts (from different Sheriffdoms) where historical data (provided at the outset of the project by the Scottish Courts and Tribunals Service) showed high, medium and low levels of remand. All participation was on a voluntary, self-selection basis and all interviews were carried out on a one-to-one or two-to-one basis, using either face-to-face, online or telephone interviews. A total of 60 people took part over a six month period.

Main Findings

The research highlights that the bail and remand decision making process is complex, multi-faceted and time pressured. The ‘jigsaw’ of legislation, combined with circumstance and human factors, means that no two cases are ever treated the same way and no response can ever be seen as ‘typical’. All participants across all stakeholder groups agreed that the decision making process was informed by multiple considerations in each case, and that there was never any one factor which was determinative in its own right. All cases were described as being unique and as being treated on the basis of the information available at the time and the merits of each individual case. Similarly, while some factors may carry more weight in some circumstances, all factors are still considered in their totality.

Findings from the research broadly fell under four key topics, these being: Legislative Grounds, Process and System Influences, Human Factors and Other Considerations. The main findings presented below are structured around these four topics, with a fifth separate dedicated section focusing on Alternatives to Remand.

(1) Legislative Grounds

The Criminal Procedure (Scotland) Act 1995 is the cornerstone of all decision making and was described by all stakeholders as the main framework within which all decisions on bail and remand are made, being of equal relevance and influence in both summary and solemn cases.

Most respondents concurred that a combination of all of the factors set out in Section 23C of the 1995 Act, alongside the particular facts and circumstances of a case, determined all decisions about whether an accused presents a risk of re-offending and whether bail should be opposed. In general, however, the nature of the offence (especially where the accused has a history of similar, recent offending) and previous convictions were the two factors which perhaps carried the most weight in decisions to oppose bail (by COPFS) and to refuse bail (by Sheriffs).

The nature (including level of seriousness) of offences before the court was described as “highly influential” in Crown decisions to oppose bail primarily because it was seen as the key indicator of the danger that the accused may present to the public and witnesses. Sheriffs also stressed that the seriousness of the current offence was paramount in their determinations (with decisions in solemn procedure even more likely to have seriousness at their heart than summary procedures).

The nature of any previous convictions of the person (including analogous offending) was described by the Crown as “highly influential” in their case marking, and could be sufficient for opposing bail on its sole merit (especially if previous offending was very similar to the new offending). It was noted that the nature of previous convictions could demonstrate that the accused has a preferred method of offending, as well as demonstrating risk of commission of further offending and/or being of danger to the public. Offence histories were also the second most frequently cited factor influencing Sheriffs’ decisions.

Previous behaviour whilst on bail (including compliance, previous breaches and previous breaches of other court orders) was described by Sheriffs as being “very commonly relied upon by the Crown and the court”, with COPFS respondents noting that it often indicated concerns as to commission of further offences, future failure to comply with bail conditions, failure to surrender and likelihood of custody (with breach of orders suggesting contempt of same). Similarly, solicitors noted that the record of the accused alongside their compliance with previous orders played heavily in their assessment of likelihood of bail being granted. Sheriffs confirmed that previous behaviour while on bail was considered as a key indicator of likely future behaviour in the current case.

How recently other offences were committed was described as playing a key role in decisions as it could help to demonstrate any pattern of offending or risk of re-offending and whether the accused was targeting a single or multiple victims/complainers. This information was also described as useful insofar as it may yield arguments that certain specific sections of society are not safe if the accused was to be at liberty. A period of desistance following a prolific record was not always seen as good reason to support bail, and it was noted that the weight of the record and other factors were also likely to be considered by COPFS and Sheriffs in turn.

Evidence of escalation of offending was perhaps seen as slightly less influential than other features of an accused’s history and was often considered only alongside other features (in particular the types of offending being escalated) to present a case for opposing bail by the Crown. For Sheriffs, escalation was also not a primary determinative factor in decisions.

Of lower importance in the order of considerations for Sheriffs was the risk of failure to appear at future court diets. While previous behaviour was seen to be indicative, Sheriffs tended to note that failure to appear would need to be severe, prolonged and prolific for this to be the reason why they would remand someone to custody.

Sheriffs also cited risk to public and community safety as being key to their decision making, and possibly one of the most significant factors weighing in bail/remand decisions, after offence nature and seriousness (the two often being intertwined). Assessing whether the accused was likely to interfere with victims/witnesses was also seen as important, although it was noted that interference was ‘rare’ in most types of case (the exception being domestic abuse/harassment cases). Similarly, most Sheriffs cited the nature and number of previous offences and previous non-compliance with bail and other court orders as a key consideration involved in assessing ‘substantial risk’.

Also in relation to legislative grounds, Section 23D of the Act (which sets out a presumption against bail for those accused of violent/sexual/domestic abuse offences or drug trafficking offences in solemn proceedings, where they have a previous conviction of a similar nature) was viewed as being interpreted very differently by different Sheriffs. Stakeholders viewed that ‘exceptional circumstances’ (which may allow the granting of bail in some such cases) was a (largely) undefined, fluid and subjective concept. Sheriffs and solicitors also concurred that there was a certain inevitability of bail being opposed by COPFS in Section 23D cases. It should be noted, however, that the Bail and Release from Custody (Scotland) Act 2023 (which was still being passed through parliament at the time that the research was reaching its conclusion) repeals Section 23D of the Criminal Procedure (Scotland) Act 1995. (continued)

Edinburgh: Safer Communities Directorate, 2023. 93p.

By Julie Gerlinger

The author investigates the impact of law-and-order schools, defined as those that rely heavily on exclusionary discipline (i.e., suspension and expulsion) as a form of punishment, on neighborhood crime. Additional analyses are performed to assess whether the effects of punitive school discipline on local crime are moderated by neighborhood disadvantage. Findings suggest that suspensions are associated with increases in local crime—evidence of a macro-level school-to-prison pipeline—while expulsions are generally associated with fewer crime incidents. Although disciplinary exclusions appear to increase crime at fairly consistent rates across levels of neighborhood disadvantage, both exclusion types are associated with more aggravated assault in areas with higher levels of disadvantage. As such, institutional processes of the school appear to help explain variations in community crime.

Socius Volume 6, January-December 2020