By Dorota Pudzianowska

This book discusses the fundamental issues of public law in the area of statelessness from the perspectives of comparative law and international law standards. The author proposes an approach in which statelessness is not a homogeneous concept but is best analyzed and responded to through the lens of different categories of statelessness. This accounts not only for the existence of different categories of stateless persons (e.g., voluntary or involuntary) but also for different assessments and needs of their respective situations for purposes such as prevention mechanisms. The book demonstrates the conceptual and regulatory relevance of this important differential aspect of the international law on statelessness (with implications for domestic legal systems).

Bern: Peter Lang International Academic Publishers, 2023. 272p.

By Joshua Grossman, Julian Nyarko, Sharad Goel

  After arrest, criminal defendants are often detained before trial to mitigate potential risks to public safety. There is widespread concern, however, that detention decisions are biased against racial minorities. When assessing potential racial discrimination in pretrial detention, past studies have typically worked to quantify the extent to which the ultimate judicial decision is conditioned on the defendant’s race. Although often useful, this approach suffers from three important limitations. First, it ignores the multi-stage nature of the pretrial process, in which decisions and recommendations are made over multiple court appearances that influence the final judgment. Second, it does not consider the multiple actors involved, including prosecutors, defense attorneys, and judges, each of whom has different responsibilities and incentives. Finally, a narrow focus on disparate treatment fails to consider potential disparate impact arising from facially neutral policies and practices. Addressing these limitations, here we present a framework for quantifying disparate impact in multi-stage, multi-actor settings, illustrating our approach using 10 years of data on pretrial decisions from a federal district court. We find that Hispanic defendants are released at lower rates than white defendants of similar safety and nonappearance risk. We trace these disparities to decisions of assistant US attorneys at the initial hearings, decisions driven in part by a statutory mandate that lowers the procedural bar for moving for the detention of defendants in certain types of cases. We also find that the Pretrial Services Agency recommends detention of Black defendants at higher rates than white defendants of similar risk, though we do not find evidence that these recommendations translate to disparities in actual release rates. Finally, we find that traditional disparate treatment analyses yield more modest evidence of discrimination in pretrial detention outcomes, highlighting the value of our more expansive analysis for identifying, and ultimately remediating, unjust disparities in the pretrial process. We conclude with a discussion of how risk-based threshold release policies could help to mitigate observed disparities and the estimated impact of various policies on violation rates in the partner jurisdiction

Journal of Empirical Legal Studies, 2023;1–48.

By Jennifer Ferone, Bryn Herrschaft, Kate Jassin, Cecilia Low-Weiner, Aimee Ouellet

Findings from a multiyear process evaluation of New York State legislation aimed at facilitating pretrial release and minimizing the use of cash bonds. Includes recommendations and lessons learned for future reform efforts both in and out of New York. The inequities inherent in this country’s criminal legal system have been well-documented. Research and evidence repeatedly show that socioeconomic circumstances affect how people fare at all points, with those who are economically disadvantaged and Black, Indigenous, and People of Color (BIPOC) faring disproportionately worse, such as higher rates of arrest and incarceration. The pretrial period—which is after a person is arrested and charged but before they have been convicted of any crime—is no exception to this trend. Disparities at this stage are particularly prevalent, having been exacerbated by the ever-expanding use of cash bail and pretrial detention across jurisdictions in recent decades. This has long-lasting implications: even one day in jail can lead to exposure to violence while incarcerated, and loss of housing and employment after release.1 In the past, efforts to reduce the harm caused by cash bail were often tied to particular system leaders making changes to administrative policies under their control (e.g., prosecutors not charging individuals with certain low-level offenses). In recent years, however, some states have taken up broader legislative reforms aiming to transform the system on a much larger scale; specifically, many have moved to eliminate or substantially reduce the use of cash bail as a major factor in determining when and for whom pretrial detention is used. In 2019, New York became one of these states, with the passage of the Criminal Justice Reform Act (Act) in April of that year (with reforms taking effect on January 1, 2020). The Act, fueled by increasingly abhorrent conditions at the Rikers Island jail complex in New York City (NYC), was hailed as one of the most ambitious bail reform packages in the country. The comprehensive package of reforms was driven by the recognition of New York's systemic problems and the need to address them through an effort that was equally broad in scope and scale. At its core, the Act aimed to facilitate a presumption of non-financial release to avoid the deleterious and inequitably distributed effects of pretrial detention. The New York State government (NYS) understood, however, that to effectively and safely shift away from incarceration as a primary system response— and to create a decision-making foundation that was not dependent on financial resources—a variety of local criminal legal processes beyond the bail decision had to shift as well. To that end, the legislation included provisions in other related areas. More specifically, the legislation aimed to reduce systemic inequities and harms through a comprehensive approach that incorporated significant changes to policy and practice in four key areas of pretrial decision-making  (continued)

New York:  CUNY Institute for State & Local Governance 2023. 55p.

By Chloe Anderson Golub, Melanie Skemer

On any given day, nearly 450,000 people in the United States—still legally innocent—are detained while awaiting the resolution of their criminal charges, many because they could not afford to pay the bail amount set as a condition of their release. In response, jurisdictions across the United States are making changes to their pretrial systems to reduce the number of people who are held in pretrial detention. As part of this effort, many jurisdictions are moving away from money bail as a primary means of encouraging people to return for future court dates. Instead, they are increasingly relying on strategies such as pretrial supervision, which requires released people to meet regularly with supervision staff members, and special conditions, such as electronic monitoring and sobriety monitoring. In theory, the added layer of oversight that these release conditions provide would encourage people to appear for court dates and avoid new arrests. Yet until the last two years, research on the effectiveness of these conditions was either limited (in the case of pretrial supervision) or had faced methodological limitations and yielded mixed findings (in the case of special conditions). A more rigorous understanding of the effectiveness of these release conditions is critical, particularly given their immense burdens and costs to both jurisdictions and people awaiting the resolution of their criminal charges. This brief synthesizes findings from three recent impact studies that assessed the effectiveness of varying intensities and modes of pretrial supervision, as well as electronic monitoring and sobriety monitoring, at ensuring court appearances and preventing new arrests. Among the most rigorous evaluations of pretrial monitoring conducted to date, these studies were set across five geographically diverse U.S. jurisdictions. Findings from each of the three studies are presented in the sections below, followed by a discussion of overarching policy and practice implications. In sum, these analyses suggest that more restrictive levels and modes of pretrial supervision and special conditions do not improve the rates at which clients appear in court or avoid arrest, at least among those assessed as having a low to moderate probability of pretrial noncompliance (that is, failing to appear in court or being rearrested during the pretrial period). Jurisdictions should consider reducing their reliance on these release conditions and instead seek less restrictive requirements to support pretrial compliance among this population. 

New York: MDRC,   2024. 7p.

By Christopher Herring and  Sandra Susan Smith 

Nationwide, 36 states and over 150 cities and counties have adopted what is widely known as “Ban the Box” (BtB) (NELP 2020). These policies require employers to remove conviction and arrest history questions from job applications and delay background checks until after a conditional offer has been made. The policy is designed to encourage employers to consider a job candidate’s qualifications first – without the stigma of a criminal record – in the hopes of reducing barriers to employment that justice-involved individuals face. We imagine two ways that BtB might work. The first is by changing employers’ hiring practices. Existing research on the former indicates the policy does increase callback and hiring rates for people with criminal records (Agan and Starr 2016; Atkinson and Lockwood 2014; Berracasa et al. 2016; Shoag and Veuger 2016), but effects appear highly contingent on the race of the job seeker and on the employment sector. The second way that BtB might reduce barriers to employment is by altering whether and how individuals with criminal records search for work. No research to date, however, has examined whether individuals with criminal records know about BtB, their perception of how efficacious it is, and what impacts the policy’s implementation has had on justice-involved individuals’ job search patterns. To address the latter shortcoming, we surveyed 351 probationers in the San Francisco Bay Area and conducted in-depth interviews with a subset of 43. We learned that three major barriers continue to limit individuals’ ability to benefit from the policy. First, few of our survey respondents knew about BtB at all, much less that it had been implemented. Second, whether they knew about BtB or not, the majority perceived that they had recently been discriminated against because they had criminal records, with a significant minority to a majority reporting discrimination at each stage of the hiring process. Third, our Black respondents also perceived that employers continue to discriminate against Black applicants, making finding and keeping work extremely difficult. In this brief, we elaborate on these three points in the hopes that our findings will inform the development not only of fair chance policies aimed at increasing employment opportunities for justice-involved individuals but also of a broader set of policies on employment and re-entry.  In 14 states, the policy applies to both the public and private sectors. In 22 states the policy applies only to public sector jobs and government contractors. Three-fourths of the US population lives in a jurisdiction that has banned the box (NELP 2020).  In the private sector, for instance, BtB reduces the likelihood that employers will call back or hire young Black and Latinx men (Agan and Starr 2016; Doleac and Hansen 2016; see Holzer et al. 2007, for a pre-BtB discussion about how access to information about individuals’ criminal records shaped employers’ hiring patterns differently by race). 

Berkeley, CA:  Institute for Research on Labor and Employment, 2022. 11p.

By The Alabama Appleseed Center for Law & Justice and The Southern Poverty Law Center

On August 15, 1822, the brig Palmyra, an armed privateer commissioned by the King of Spain, was captured on the high seas by the USS Grampus. Accused of violating the 1819 Piracy Act, the Palmyra was sent to South Carolina to await judgment.1 Though the crew was “guilty of plunder,”2 no law existed under which its members could be punished,3 so no one was convicted of any crime. The Spanish government, claiming its f lag had been “insulted and attacked” and its property stolen, demanded that the Palmyra be returned to its owner.4 The U.S. Supreme Court determined that the ship was properly forfeited, ruling that it was permissible for the state to take property that had facilitated criminal activity, despite the fact that no person was convicted of a crime.5 Nearly two centuries later, law enforcement agencies across America are using a process known as civil asset forfeiture to take and keep billions of dollars in currency, vehicles, houses, land and weapons – even items like TVs – under the same legal reasoning. This property is taken not from pirates who lie beyond the jurisdictional reach of the United States, but rather from ordinary people who can easily be taken into custody, charged and tried if the state believes they committed a crime. Today’s use of civil asset forfeiture, in other words, is unmoored from its historical justification of imposing penalties when authorities could not convict a person suspected of crime. This lack of a link to the original use of civil forfeiture raises numerous questions, including whether it is the wrong process to meet the state’s otherwise legitimate interests of confiscating the fruit of crimes. In the 1980s, with the advent of the War on Drugs, civil asset forfeiture was sold to the public as a tool for taking the ill-gotten gains of drug kingpins. In practice, however, it has become a revenue stream for law enforcement – but one whose burden falls most heavily on the most economically vulnerable. In Alabama, as in numerous other states, the process is opaque, mostly applied to people who are not drug kingpins, and fraught with enormous potential for abuse. This study found that in half of the 1,110 cases examined in Alabama, the amount of cash involved was $1,372 or less. This suggests that prosecutors have extended the use of civil forfeiture beyond its original intent of pursuing leaders of international drug cartels. And since typical attorney fees add up to well over $1,372 – often running into the thousands for the multiple pleadings and court appearances a civil forfeiture case can entail – this means law enforcement can take these relatively small amounts of money from Alabamians, secure in the knowledge that they will never be asked to return it. Indeed, this study found that in more than half the disposed cases (52 percent), the property owner never attempted to contest the forfeiture, resulting in a default judgment – an easy win – for the state. Making matters worse, there is no state law requiring agencies to track or report the assets they seize – and no requirement that they account for how they use the property or the proceeds that are subsequently forfeited. To track the property seized and forfeited under civil asset forfeiture laws in the state, Alabama Appleseed Center for Law and Justice and the Southern Poverty Law Center reviewed court records in the 1,110 cases filed in 14 counties in 2015, comprising approximately 70 percent of all such cases filed statewide that year. The study shows that, in those 14 counties: • Seventy agencies – including police departments, city governments, district attorneys’ offices, sheriffs’ offices and inter-agency drug task forces – were awarded $2,190,663 by the courts in 827 cases that were disposed of. • Courts awarded law enforcement agencies 406 weapons, 119 vehicles, 95 electronic items and 274 miscellaneous items, including gambling devices, digital scales, power tools, houses and mobile homes. • In 25 percent of the cases, the property owner was not charged with a crime linked to the civil forfeiture action. The state won 84 percent of disposed cases against property owners who were not charged with a crime. Those cases reaped $676,790 for law enforcement. • In 55 percent of 840 cases where criminal charges were filed, the charges were related to marijuana. In 18 percent of cases where criminal charges were filed, the charge was simple possession of marijuana and/or paraphernalia. In 42 percent of all cases, including those where there were no charges, the alleged offense was related to marijuana. • In 64 percent of cases where criminal charges were filed, the defendant was African American, even though African Americans comprise only about 27 percent of Alabama’s population.6 Appleseed and the SPLC also reviewed information about all 1,591 civil asset forfeiture cases filed across the state in 2015. Of the 1,196 that had been resolved by the time of this review in October 2017:7 • 79 percent resulted in favorable verdicts for the state. • 52 percent of disposed cases were default judgments, meaning the seizures were never challenged in court by the individuals from whom assets were taken. Civil asset forfeiture cases reside in a peculiar legal netherworld premised on the fiction that objects themselves can be “guilty” of criminal activity. In the time of the Palmyra, civil asset forfeiture laws enabled the government to recover damages and punish offenders by taking the wealth of individuals who were personally beyond the jurisdiction of the United States. The practice today hardly resembles those origins. Beginning in the 1980s, Congress enacted laws that essentially created a financial incentive for law enforcement to prioritize the War on Drugs. States followed suit by expanding their use of civil forfeiture under state laws. In addition to the $2.2 million in state forfeitures in 2015, Alabama law enforcement agencies netted $3.1 million from federal forfeitures. (continued)

Montgomery, ALL: Southern Poverty Law Center,  2022.  53p.

By Carolina Sampó, Nicole Jenne, Marcos Alan Ferreira

This article analyzes the criminal governance exercised by the Mexican criminal organ­ization Cartel Jalisco Nueva Generación (CJNG), contributing to the scarce information available on this topic. Specifically, we ask how the CJNG has exercised territorial control to ensure the operation of its businesses, mostly concentrated in the production and sale of illegal drugs. Based on a small number of existing studies and publicly available information, we argue that the CJNG relies on a dual system of territorial control consisting of the prioritization of violent coercion vis-à-vis its opponents together with a discourse of protecting Mexicans sustained by selected initiatives to provide security and other basic services to the population to gain legitimacy. This combination has allowed the cartel to grow and expand rapidly over the last decade. 

Revista Científica General José María Córdova,  21(43), 647-665.2023 

By Sandra G. Mayson

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the debate so far has largely ignored this foundational question. One way of thinking about the question of what level of crime-risk justifies restraint is to ask whether the answer is different for defendants than for anyone else. It is generally assumed that the answer is yes — that defendants are a special case, exempt by virtue of their pending charge from otherwise applicable constitutional and normative constraints. This Article challenges that assumption. It argues that, for purposes of restraint for dangerousness, there is no clear constitutional, moral, or practical distinction between a defendant and a non-defendant who are equally dangerous. There is thus no basis to conclude that the risk standard for such restraint should be different for defendants than for anyone else.

127 Yale L. J. 490 (2018)

By: Mike Molan

As a source of reference materials this is not a book designed to be read from beginning to end in a linear fashion. Most readers will dip into the chapters that follow in search of material relating to a specific aspect of the substantive criminal law. The substantive criminal law does not, however, exist in a vacuum. It is hard to have an effective understanding of the doctrinal aspects of criminal law without also having a grasp of the operational context. The materials that follow in this first chapter, therefore, provide a brief overview of the sources of criminal law, the approach taken by the courts in applying criminal statutes, the procedural options open to the prosecuting authorities, and the appeals processes that give rise to many of the precedents forming the backbone of the substantive law. The materials also illustrate the impact of the Human Rights Act 1998 on the operation of domestic substantive criminal law, and the contribution of the Law Commission to the on-going programme of law reform. There are many other interesting aspects of the criminal justice system that could be considered, such as punishment, crime prevention, and theories of deviancy, but they lie beyond the scope of this text.

Routledge-Cavendish 2008

Sandra G. Mayson

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race; (2) adjustments to algorithmic design to equalize predictions across racial lines; and (3) rejection of algorithmic methods altogether. This Article’s central claim is that these strategies are at best superficial and at worst counterproductive because the source of racial inequality in risk assessment lies neither in the input data, in a particular algorithm, nor algorithmic methodology per se. The deep problem is the nature of prediction itself. All prediction looks to the past to make guesses about future events. In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is as true of the subjective prediction that has long pervaded criminal justice as it is of the algorithmic tools now replacing it. Algorithmic risk assessment has revealed the inequality inherent in all predictions, forcing us to confront a problem much larger than the challenges of a new technology. Algorithms, in short, shed new light on an old problem. Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk. The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion—in which case they cannot justify state coercion. Further, to the extent that we can reliably assess risk, criminal system actors should strive whenever possible to respond to risk with support rather than restraint. Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that supports the risk.

Yale L. J. 2218 (2019) Yale Law Review,

By Lila Kazemian

This paper reviews the empirical literature on desistance from crime among adolescents and adults and the factors that explain (dis)continuity in criminal behavior in the transition to adulthood. It also highlights the implications of this knowledge base for various criminal justice agencies. Drawing on the research literature and relevant theoretical frameworks, the paper offers nine key recommendations on desistance-promoting criminal justice policy and practice.  Our criminal justice interventions would benefit from a paradigm shift that expands from an exclusive focus on recidivism to the consideration of positive outcomes that may result in reduced involvement in crime. Program evaluations that prescribe to this new paradigm should: (a) integrate the well-established fact that desistance from crime occurs gradually and that setbacks are to be expected; (b) consider changes in individual and social outcomes in addition to behavioral measures; (c) offer a balanced assessment of both failure and success outcomes and invest resources in tracking progress before, during, and after any given intervention; and (d) provide incentives for success. Biosocial research has suggested that from a cognitive perspective, emerging adults (18-24 years old) may resemble adolescents more than adults. It would then be logical to extend assumptions about reduced culpability to individuals up to the age of 24. Young adult courts are an example of such an accommodation. The age crime curve confirms that most individuals are likely to give up crime during emerging adulthood; in many cases, criminal justice processing during this period may be counterproductive and might delay the process of desistance from crime that would otherwise occur naturally. Prosecutors play a key role in fostering desistance by avoiding further processing for individuals who do not pose a significant threat to public safety. Longer prison sentences are not effective in promoting desistance from crime and reducing recidivism. Confinement disrupts the desistance process in many ways, and it should be used only as a last recourse. When possible, jurisdictions should favor alternatives to confinement for both juveniles and adults. Few individuals remain active in crime after the age of 40. Barring exceptional circumstances for those who pose a clear threat to public safety, there is no empirical basis for incarcerating individuals for decades past mid-adulthood. Because the decision to give up crime is regarded as a gradual process rather than an abrupt event, preparation for release from confinement should ideally begin early in the sentence for those cases where incarceration is deemed necessary. Individuals can make constructive use of their time in prison if they can find meaning to their sentence, get to the root of the reasons that brought them to prison in the first place, and develop a plan for their return to society. These are essential components of the desistance and reintegration processes. Interactions with law enforcement may disrupt desistance in many ways that are not necessarily well understood by officers. Given that most initial contacts with law enforcement do not result in further criminal justice processing, arrests that do not lead to a conviction constitute a poor measure of criminal behavior and may create unnecessary stigma that hampers the desistance process. This stigma disproportionately affects individuals belonging to socially marginalized groups. Convictions or incarcerations may be more valid indicators of official crime. The stigma of a criminal record has enduring effects on the ability to successfully reintegrate into society. Expungement laws can help offset some of the negative consequences of the stigma of a criminal record. The mere prevalence of past offending is insufficient to assess the future risk of reoffending. We need to account for other dimensions of the criminal record, including the recency and intensity of involvement in past crimes. Housing and employment policies that adopt a blanket ban against individuals with a criminal record cannot be justified based on public safety concerns and are detrimental to the process of desistance from crime. 8. 9. Many state and local jurisdictions have developed promising initiatives and interventions that draw on principles of the desistance paradigm, but few have been rigorously evaluated. Partnerships between policymakers, practitioners, and academics are crucial to conducting more systematic assessments. We also need to better understand whether the level of responsiveness to any given intervention varies across demographic groups (specifically age and gender), criminal history characteristics, and histories of trauma. Efforts to promote desistance from crime are not the sole responsibility of one agency. The most promising desistance-promoting policies and practices rely on ongoing partnerships between the various agents of the criminal justice system and community resources, including law enforcement, prosecution, corrections, and community organizations.    

(Washington, DC: U.S. Department of Justice, National Institute of Justice, 2021), NCJ 301497. 2021. 38p.

By Alissa Skog and Johanna Lacoe

Pretrial electronic monitoring (pretrial EM) is a digital surveillance program that tracks the location and movements of people released to the community while they await the resolution of their criminal case. A locked plastic bracelet is attached to the person’s ankle, which includes a GPS tracking device that notifies the Sheriff’s Office if the person is not complying with the terms of their release. This report covers the characteristics and outcomes of people released by the courts to pretrial EM in San Francisco between 2018 and 2021. During this period, two significant events impacted pretrial detention. First, the In Re Humphrey decision required judges in San Francisco to consider the ability to pay when setting bail and to select the least restrictive non-monetary release condition. Second, in response to the COVID-19 pandemic, policymakers issued public health directives limiting the jail population in San Francisco. This report is not an evaluation or causal analysis of the impact of pretrial EM. Rather, this report provides policymakers with data and insights to aid decisions about pretrial EM in San Francisco. This analysis reveals: • The use of pretrial EM increased more than twenty-fold between 2017 and 2021. San Francisco rarely used pretrial EM before 2018, averaging 75 cases per year. In 2018, more than 550 cases were released to pretrial EM and the annual caseload increased to more than 1,650 in 2021. • More than one-third of people on pretrial EM are unhoused/unstably housed. • More than 65% of people on pretrial EM who were assessed with a standardized pretrial risk assessment tool were rated at the greatest risk of new arrest or failure to appear in court. • Eighty-five percent of people on pretrial EM are booked on felony charges. The median number of prior San Francisco County Jail bookings is five. • Most people on pretrial EM are terminated prematurely. Of those who fail to comply with pretrial EM rules, 60% are returned to custody within one week of termination and 76% are returned within two months. • Pretrial EM termination rates are higher for people who are unhoused/ unstably housed. Nearly 80% of people who are unhoused/unstably housed on pretrial EM fail to complete the program, compared to approximately 50% of people who are housed. • Terminations from pretrial EM often happen in the first 2 weeks of the program. Individuals who terminate have a median number of days on pretrial EM of 15 days.  

Los Angeles: California Policy Lab, 2022. 41p.

By  Mia Bird, Omair Gill, Johanna Lacoe, Molly Pickard, Steven Raphael and Alissa Skog

Sentence enhancements are used to add time to an individual’s base sentence. California uses over 100 unique enhancements. This report analyzes data from the California Department of Corrections and Rehabilitation (CDCR) to understand the role of sentence enhancements in California’s corrections system. It finds that enhancements lengthen average sentences and are more likely to impact the sentences of men and Black and American Indian people who are sentenced to prison, application varies by county, and that enhancements contribute to the overall size of the state prison population. KEY FINDINGS • Prevalence: Roughly 40% of individual prison admissions since 2015 have sentences lengthened by a sentence enhancement. Among the currently incarcerated, the prevalence of enhanced sentences is much higher, impacting the sentences of approximately 70% of people incarcerated as of 2022. • Sentence length: Sentence enhancements increase the average sentence by roughly 1.9 years (or 48%) for all admissions. The impact is larger for people receiving longer sentences. • Four enhancement types account for 80% of sentence years added since 2015. Those four enhancements include the state’s Three Strikes law, firearm enhancements, the nickel prior (which adds five years for a prior serious offense), and gang enhancements. • Racial, ethnic, and sex disparities: Sentence enhancements are more likely to be applied to men. Black people and American Indian individuals are the most likely to receive enhanced sentences, followed by Hispanic people, White people, and Asian or Pacific Islander people. • Potential drivers of disparities: Most, but not all, of the inter-racial and inter-sex disparities in the use of enhancements can be explained by group-based differences in case characteristics observable in CDCR data, including the number of prior prison commitments, the number of conviction charges, the most serious conviction offense, and the county of sentencing. • County variation: Enhancements are applied unevenly across California counties, with the lowest application rates in Bay Area counties and Southern California coastal counties, and the highest rates among far Northern counties, the counties in the Central Valley, and Inland Empire counties.   

Los Angeles: California Policy Lab, 2023, 57p.

By  Brett Fischer, Johanna Lacoe and Steven Raphae

When someone is arrested and cannot afford bail or a private lawyer, they stay in jail and have to wait several days before they are assigned a public defender at arraignment. This time in jail imposes legal, social, and economic costs, from a higher chance of conviction to loss of employment or wages. Low-income individuals bear the brunt of these costs because many cannot afford to post bail to secure their own release, nor can they afford to hire a lawyer to negotiate their release. The County of Santa Clara Public Defender’s Office designed a program to address these problems by providing legal counsel to low-income people shortly after their arrest. In early 2020 they piloted the Pre-Arraignment Representation and Review (PARR) program using a rotating schedule that offered PARR services one day per week. This quasi-random implementation enabled the research team to estimate the impact receiving PARR services had on release and case outcomes. Participation in the program decreased jail time and convictions, and increased case dismissals. This policy brief is a condensed version of a National Bureau of Economic Research working paper: The Effect of Pre-Arraignment Legal Representation on Criminal Case Outcomes. Key Findings • Arrested individuals who received PARR services were detained in jail, on average, for 23 fewer days relative to comparable people who did not receive PARR services (6 total days vs. 29 total days). This reduction reflects both reductions in pretrial detention, as well as potential reductions in the probability and length of incarceration imposed at sentencing. • PARR participants were more than twice as likely to have their cases dismissed altogether, thereby avoiding a criminal conviction. Specifically, receiving PARR services reduced the probability that an individual was convicted by about 75% relative to comparable people whom PARR did not serve. These findings underscore how providing faster access to legal representation following an arrest can improve case outcomes for low-income individuals.

Los Angeles: California Policy Lab, 2024. 5p.

By NIla Bala, Casey Witte, Lars Trautman   

 The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system. In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences. While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful. With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities. This paper examines the sources of racial disparities in the criminal justice system, how prosecutors may contribute to them, and finally, actions that prosecutors can take to help reduce these disparities. These recommendations include a better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs, and implementing algorithmic color-blind charging.  

Washington, DC: R Street, 2021. 6p.

By Cody Zoschak and Cosima von Moltke

This policy brief discusses the need to implement disengagement and reintegration programming for ISIS arrestees in the US penal system, a need that is particularly urgent given the number of such convicts that are expected to be released in the coming years. The brief examines six case studies of recently released ISIS arrestees to highlight the lack of disengagement from extremist ideology. The report explores deradicalization frameworks, existing programs, and limitations, and provides policy recommendations to improve reintegration. The six cases include Yousef Ramadan, Ali Shukri Amin, Sebastian Gregerson, Charlton LaChase, Mohammed Hamzah Khan, and Islam Natsheh; all of whom were released and promptly reincarcerated, either on new charges or for violating their parole. The policy recommendations emphasize programs inside federal and state penal systems, collaboration between law enforcement and civil society actors, and post-release support outside the scope of probation. The suggested policies are built to mitigate the risk of recidivism and are needed for the dozens of ISIS convicts who are scheduled to be released in the coming 3-5 years. 

London: Institute for Strategic Dialogue (2024), 19p.

By: Oded Oren, Chad M. Topaz, and Courtney Machi Oliva.

Key Findings:

1. An analysis of public pretrial data from 2020 - 2022 reveals that some New York City judges are disproportionately carceral, i.e., these judges are substantially more likely to order pretrial detention than their peers, even when accounting for factors such as the severity of the case and the defendant’s prior criminal history.

2. The fourteen judges who exhibited the most carceral discretion compared to their peers are Felicia Mennin, Gerald Lebovits, Quynda Santacroce, Josh Hanshaft, Kerry Ward, Bruna DiBiase, Gerianne Abriano, Beth Beller, Phyllis Chu, Alan Schiff, Tara Collins, Derefim Neckles, Joseph McCormack, and Lumarie Maldonado-Cruz.

3. These fourteen judges’ disproportionately carceral decisions over 2.5 years resulted in an estimated 580 additional people detained, 154 additional years of pretrial detention, and over $77 million of additional costs borne by New York City taxpayers

Key Recommendations:

1. Closer scrutiny of judges’ bail decisions is crucial because of the link between pretrial detention and increased recidivism rates, exacerbated racial disparities, and influence over case outcomes.

2. New York (and other jurisdictions) must evaluate whether judicial discretion should be constrained given that legislative efforts to reform bail have not prevented some judges from exercising discretion in disproportionately carceral ways.

3. New York lawmakers should consider the following approaches to constraining disproportionately carceral judges:

• Making additional judge-level data publicly available to all New Yorkers.

• Removing disproportionately carceral judges from overseeing criminal cases.

• Limiting judges’ discretion to detain, including by mandating release from detention upon the preparation of a release plan by holistic teams of experts.

Scrutinize, Institute for the Quantitative Study of Inclusion, Diversity, and Equity Zimroth Center on the Administration of Criminal Law at NYU School of Law, 2023. 29p.

By: Oded Oren (Scrutinize) and Rachael Fauss (

Transparency is a cornerstone of a robust democratic governance system. It helps build public trust, fosters accountability, and promotes informed citizen participation. When it comes to the transparency of the state judiciary and court administration, there are notable shortcomings due to gaps in current law and practice. Since judicial data is a public good, there is a compelling public interest in making more judicial data publicly available. This report delves specifically into the limited publication of written decisions by criminal court judges.

Key Findings:

1. Only an estimated 6% of the total written criminal court decisions are published every year.

2. In New York, criminal court judges effectively decide whether or not to publish their decisions in criminal cases. Of the judges who published at least one decision a year, the average number of published decisions was two to three decisions a year.

3. The number of judges presiding over criminal cases each year is not made available by the court system, meaning that it is not possible to determine how many judges publish zero decisions each year.

4. Of the 600 New York criminal court judges who published at least one decision between 2010 and 2022, 20 judges (3%) were responsible for 28% of all published decisions, while 356 judges (59%) published three or fewer decisions.

Public Access to Criminal Court Decisions Boosts Transparency and Judicial Accountability:

• Judicial Assessment: Access to decisions is vital for evaluating a judge’s performance and qualifications during reappointment, reelection, or promotion.

• Legislative Oversight: Publicly available decisions provide a window for the Legislature to monitor the implementation of criminal law reforms.

• Legal Insight: Decisions offer valuable insights for appellate courts and attorneys into legal interpretations and trends, but only if they are available for review.

Recommendations:

1. New York should pass a law to increase transparency by requiring written decisions by criminal court judges to be publicly available online.

2. Judges would be able to submit transcripts of oral rulings instead of written decisions.

3. The new law would mandate the publication of decisions when they resolve a legal issue raised in a written motion or decide a pre-trial hearing.

4. The new law would also require the Office of Court Administration to make all written criminal court decisions authored in the past 15 years publicly available.

5. The Office of Court Administration should immediately begin implementing these policies administratively.

Scrutinize and Reinvent Albany, 2023. 28p.

By Jacqueline Pacvilon, Neil Agarwal, Rosie Wang ,, April Pierina , Hernandez Luperdi

Having legal representation helps ensure due process and is associated with more positive case outcomes for people facing deportation. In 2022, the Midwest Immigrant Defenders Alliance (MIDA) was formed by four organizations to provide legal representation for people in the Chicago immigration court whose cases begin in immigration detention: The National Immigrant Justice Center, The Resurrection Project, The Immigration Project, and the Law Office of the Cook County Public Defender. These organizations developed a collaborative model to provide legal representation on a merits-blind basis, which ensures equity in access to representation. A larger share of people on the Chicago detained docket are being represented one year into the MIDA program, despite an increasing number of cases before the court. In this report, the Vera Institute of Justice evaluates the impact of MIDA and this model of universal representation during the coalition’s first year.

Key Takeaway:

Cases with representation have historically fared much better in immigration court. One year after MIDA’s formation, a larger share of people on the Chicago detained docket have representation, despite an increasing number of cases before the court. This model ensures equity and has resulted in many MIDA clients establishing a right to remain in the United States.

New York: Vera Institute of Justice, 2024. 35p.

By Kim Shayo Buchanan

We at the Center for Policing Equity (CPE) advocate reducing the footprint of law enforcement by removing police from places where they do not belong and cannot help. People’s health care, their pregnancy outcomes, and their gender and queer identities exemplify situations that should not involve police. Law enforcement can and should step back from enforcing such laws, as police have traditionally done. Enforcement of anti-abortion, anti-trans, and anti-LGBTQ+ laws would divert finite police resources away from serious and violent crimes that communities care about; squander the goodwill police have built with communities; embolden extremist violence; and endanger vulnerable communities—all while doing nothing to keep the public safe. We urge mayors and municipal governments to instruct law enforcement agencies to deprioritize enforcement of these new, victimless crimes. Instead, officers’ time and departmental resources should be used to prevent and investigate serious crimes that affect public safety. Police and municipal governments can take the following steps to deprioritize enforcement and protect their communities against the threats and harms these laws create: Municipal governments and law enforcement should take these actions: 1. Affirm a public commitment to the rights and safety of LGBTQ+ and pregnant people. 2. Consult with affected communities, on a structured and ongoing basis, about how to deprioritize enforcement. 3. Consult with affected communities about how loud and public to be about deprioritizing enforcement. 4. Ban discrimination based on sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcome, and provision or receipt of reproductive health care, abortion care, and gender-affirming care (whether real or perceived). a. Ban discrimination against municipal employees, including police officers, on these bases. b. Ban discrimination by municipal employees, including police officers, on these bases. 5. Provide employment benefits such as medical leave, comprehensive health coverage, travel for out-of-state health care, and assurances that any investigation or prosecution by another agency for breach of anti-abortion, anti-trans, or anti-LGBTQ+ laws will not affect the person’s employment. Municipal governments should take these actions: 6. Direct law enforcement leadership to allocate no funds to enforce anti-trans, anti-LGBTQ+, and anti-abortion laws. 7. Ban discrimination by municipal contractors and by local businesses based on sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcome, and receipt of abortion care and gender-affirming care. 8. Consider using municipal funds to ensure community access to health care needs such as prenatal care, doula care, lactation support, and out-of-state gender-affirming and reproductive health care. 9. Oppose any effort to criminalize use of municipal roads to access abortion, gender affirming care, or any other health care. Law enforcement should take these actions: 10. Protect people and communities against hate crimes and vigilante violence. Use and enforce restraining orders and, when warranted, laws against trespass and disorderly conduct. 11. Consult with abortion providers, reproductive justice advocates, and escorts; gender affirming care providers; hospital management and staffers; and trans and LGBTQ+ advocates about the risks they face and about how best to protect their rights and safety. 12. Amend policy manuals, as needed, to clarify that it is misconduct for police officers and civilian employees to discriminate against members of the public on the bases of sexual orientation, gender identity, pregnancy, pregnancy outcome, or receipt of abortion care or gender-affirming care. 13. Do not enforce anti-trans, anti-LGBTQ+, or anti-abortion laws. Allocate no resources to their enforcement. Conduct no investigations and make no arrests. Amend policies and procedures to direct law enforcement employees as follows: a. Do not conduct electronic, in-person, or other surveillance to detect violations of these laws. b. Do not use traffic-safety laws, pretextual stops, or any other means to investigate whether drivers, passengers, or pedestrians may be pregnant, may be transgender, or may be traveling within or out of state to receive prohibited health care. c. Take no action on any report of a violation of anti-abortion, anti-trans, or anti-LGBTQ+ laws except, as needed, to protect the person against potential violence by the caller. d. Do not investigate whether anyone is or has been pregnant, or how or why their pregnancy may have ended. e. Do not investigate anyone’s gender identity, their biological sex, or their assigned sex at birth. f. Take no action when you see a person you think may be transgender unless you have reasonable grounds to suspect the person is committing a crime for which a cisgender person would be investigated. g. Do not enter bars, theaters, libraries, or anywhere else to identify drag performances. h. Apply the same standards of obscenity to LGBTQ+ content or performance as to heteronormative1 content or performance. i. Do not enter bathrooms, changerooms, or anywhere else to ascertain the assigned sex at birth or sex characteristics of people who are there. 14. Require multiple levels of written supervisory approval, including by the chief of police, before an officer can initiate an arrest or investigation for any alleged violation of an anti-abortion, anti trans, or anti-LGBTQ+ law. 15. Ensure that officers and dispatchers are aware of agency policy not to investigate alleged violations of such laws, and that they understand specific laws in the state and locality. 16. Remind officers that they and other people cannot know by looking whether someone is transgender, what their assigned sex at birth was, or whether they are pregnant. a. Do not assume that a person is engaged in sex work based on their gender presentation. b. Do not treat possession of condoms as evidence that a person intends to engage in sex work. 17. Do not treat the presence or existence of a person who is – or is perceived to be – transgender, queer, or gender-expansive as a threat to anyone. 18. Ensure that law enforcement does not interfere with provision of health care. a. Do not station police officers in emergency departments or at hospitals or clinics to investigate patients. b. Do not investigate or interrogate patients or health care providers about a patient’s health care, gender identity, biological sex, pregnancy, health condition, or any reason they may have sought or received medical treatment. c. Do not seek disclosure of patients’ health information or records to investigate any suspected violation of an anti-abortion, anti-trans, or anti-LGBTQ+ law. d. Do not partner with hospitals or health providers to surveil or investigate patients who are pregnant, miscarrying, birthing, thought to be transgender, or suspected of using substances. 19. Do not second-guess medical determinations of whether an abortion procedure was medically necessary within the meaning of a state’s criminal laws. 20. Meet with hospital management, together with local prosecutors – and with physician representatives and emergency health care providers – to understand their concerns about criminal liability and to clarify that police and prosecutors will not second-guess their medical decisions about pregnancy or gender-affirming care   

West Hollywood, CA: Center for Policing Equity, 2024. 35p.