By Irene Oritseweyinmi Joe and  Ben Miller 

Public defenders are tasked with the unenviable job of representing some of the most vulnerable people in society when they are accused of crimes. At the same time, public defenders receive little thanks for protecting the marginalized and instead face insurmountable odds with insufficient resources and limited public support. Premal Dharia, founder and director of the Defender Impact Initiative, said, “Public defenders are on the front lines of the devastation wrought by our system of mass criminalization and they are guided by an unwavering dedication to the very people being devastated.” As the coronavirus ravages communities, courtrooms, jails, and prisons, public defenders are now indispensable to confronting the epidemic. While not medical professionals, public defenders are the front line, often the only line, between their clients and incarceration. Since jails and prisons have become hotbeds of COVID-19, with infection rates exponentially larger than the general population, public defenders have the added task of not just protecting their clients’ rights, but also, in many cases, their lives. Dan Engelberg, the chief of the trial division for the Orleans Parish Public Defender in Louisiana, aptly characterized the efforts of public defenders nationwide over the last few weeks as “heroic and tireless” as they strive to protect the health, humanity, and lives of their clients. The Justice Collaborative Institute asked nearly 200 public defenders from across the country how the COVID-19 pandemic has impacted their work and personal lives. The responses are revealing. Nearly half, as of April 2, 2020, reported clients incarcerated in correctional facilities with at least one confirmed case of COVID-19. Over 80%  did not think their local court systems were doing enough to protect the health and safety of their clients. (See Appendix for results from the questionnaire). Their concerns went beyond the spread of disease. Public defenders expressed anger over the perceived lack of empathy for their clients’ health, frustration with the many officials who treat their clients’ rights as disposable, and mental distress over the impact the virus is having on their clients, their loved ones, and themselves. Taken together, their responses form a powerful argument in support of policies, also popular among voters, to dramatically and urgently reduce jail and prison populations in response to COVID-19. The frontline accounts of public defenders reveal that far too many people in positions of authority continue to undermine public health and safety by processing far too many people daily into the criminal legal system, while at the same time failing to protect the millions of people behind bars. By doing so, they continue to place the lives of millions—people incarcerated at correctional facilities, people who go to work there, and people who live in surrounding communities—at grave risk. Law enforcement, prosecutors, judges, and politicians should work with public defenders and urgently adopt policies to limit arrests, expand the use of cite and release, end cash bail, dismiss cases instead of needlessly dragging them out, and release as many people as possible from incarceration who do not reasonably pose a risk to public safety. Such steps can all be taken right now and are options public defenders across the country are advocating for, placing their personal health at risk in many cases, to do so.  

Davis, CA: UC Davis School of Law, 2020. 48p. 

By The Criminal Justice Alliance

A new report from the Criminal Justice Alliance (CJA) highlights the pressing need for greater racial diversity and inclusion within the criminal justice workforce and offers pragmatic solutions to address long-standing, systemic issues. Launched on 5 June, Beyond a numbers game is the result of a three-year examination of racial diversity and inclusion across the criminal justice system including the 2020 launch event featuring David Lammy MP and Rt Hon Robert Buckland KC MP. Beyond a numbers game comes in the wake of significant reports and reviews including the Macpherson Report, the Lammy Review, and the Casey Review, highlighting the presence of racism and its harmful impact on racially minoritised staff and those directly impacted by the system. The CJA acknowledges incremental progress has been made regarding recruitment of racially minoritised people in the criminal justice workforce but highlights the need for sector employers to go further and faster to promote retention and progression, as well as to address toxic workplace cultures. The report includes examples of good practice and checklists containing pragmatic solutions for criminal justice sector employers to consider creating a more inclusive, safe and positive work environment for all. It also provides recommendations for government to take a more joined-up and holistic approach to this issue across the CJS. ‘The launch of this report marks a crucial milestone in addressing the pressing need for greater diversity and inclusion within the criminal justice workforce. The CJA’s comprehensive analysis and recommendations provide a roadmap for positive change and offer hope for a more equitable and just system.’ Mark Blake, Policy Manager at the CJA commented. ‘We call upon stakeholders within the CJS to share the report and its recommendations, engaging in open conversations about implementing pragmatic steps. By working together, the criminal justice community can create environments that reflect the diverse populations they serve.’

Key findings:

Recruitment:

Criminal justice agencies’ poor reputation among underrepresented communities hinders diverse candidate recruitment.Targeted outreach, engagement, and addressing systemic issues are crucial to attract a wider range of candidates.Despite lots of activity to improve recruitment, it is inconsistent and positive action is underused.

Retention and Inclusion:

Racial discrimination and toxic workplace cultures are pervasive issues impacting staff safety, satisfaction and retention.Leadership commitment is often lacking and race equality initiatives are often inadequately resourced.Racially minoritised staff often take on the work of improving diversity and inclusion in addition to their day jobs and feel undervalued.

Progression:

Racially minoritised staff are often looked over for career development opportunities and promotions due to structural barriers, biased assessment processes, and lack of diversity in senior management positions.

High-level policy recommendations:

Tackling racial disparities:

Implement recommendations from race reports and improve adherence to the Public Sector Equality Duty.Publish progress updates, establish a database of policies and Equality Impact Assessments, and analyse cumulative impacts on racial groups.

Multi-agency approach:

Form a working group of government officials, criminal justice agency representatives, and race equality organizations.Develop consistent data collection, establish accountability mechanisms, and facilitate sharing of good practice examples.

Voluntary sector engagement:

The criminal justice voluntary sector should enhance recording and sharing of workforce data to measure progress effectively.

Resource allocation:

Allocate adequate resources, including investment in organizations promoting racial diversity and inclusion, as reparations for past harms. Key speakers at the launch event included Abimbola Johnson, prominent barrister and Chair of the Independent Scrutiny and Oversight Board for the Police Race Action Plan. Abimbola noted the devolved nature of decision-making and the lack of transparency, which hinder community scrutiny and make comparison between units and forces challenging. “Workforce reform requires ownership by all, not just the enthusiastic volunteers who frequently come from recially minoritised backgrounds.” Avtar Singh, HM Inspector of Probation, shared insights from the forthcoming two-year follow-up report on race in the criminal justice system. While acknowledging some progress, Avtar stressed that more work remains to be done. “What is important for probation as a whole, is to reflect the population in the local communities from which staff and service users are drawn.” Sarah Coccia, Executive Director of South Public Sector Prisons – HMPPS, underscored the need for collaboration across the entire criminal justice system. Sarah expressed the urgency to think differently and take long-term ambitions into account to avoid repeating the same challenges in the future “None of us works in isolation, system is fundamentally joined up – we need to not just look at our own bit but look across the system.”

Criminal Justice Alliance (UK), 2023.56p.

By Christopher Dowling, Anthony Morgan and Kamarah Pooley

This study examines reoffending among 1,092 male offenders proceeded against for a child sexual offence in New South Wales between 2004 and 2013, including 863 child sexual assault offenders, 196 child abuse material offenders and 33 procurement/ grooming offenders. Seven percent of child sexual offenders sexually reoffended within 10 years of their first police proceeding for a child sexual offence, while 42 percent non-sexually reoffended. Risk of sexual and non-sexual reoffending was highest in the first two years. Child sexual assault offenders were the most likely to reoffend non-sexually, while procurement/grooming offenders were the most likely to reoffend sexually. There was evidence of transition to other sexual offence types, but this varied between groups. Indigenous status, history of offending and the number of child sexual offences emerged as important predictors of reoffending, although risk profiles varied between offender types

Trends & issues in crime and criminal justice no. 628. Canberra: Australian Institute of Criminology. 2021. 16p.

By Max Travers, Emma Colvin, Isabelle Bartkowiak Théron, Rick Sarre, Andrew Day, Christine Bond

In this paper we seek to review the rapid rise in remand in custody rates in Australia. In particular, and in response, we ask and discuss three specific questions:

1. To what extent do defendants applying for bail have vulnerabilities?

2. To what extent can risk analysis tools that seek to predict breach of bail terms be relied upon?

3. To what extent can the emerging pre-trial services programs in Australia reduce remand in custody populations?

Trends & issues in crime and criminal justice no. 610. Canberra: Australian Institute of Criminology. 2020. 13p.

By Troy Allard,  Molly McCarthy and Anna Stewart

Reducing Indigenous overrepresentation in the criminal justice system is justified on both social justice and economic grounds. We developed an innovative costing framework and estimated direct criminal justice system unit costs based on critical cost drivers. These estimates were applied to offender trajectories, modelling offences of all individuals registered as being born in Queensland during 1983–1984 (from ages 10 to 31). Separate trajectory models were developed for Indigenous and non-Indigenous Queenslanders in the birth cohort to enable separate cost estimations for these groups. Findings identified over one-half (53%) of the identified Indigenous cohort and 16 percent of the non-Indigenous cohort had moderate to chronic offender trajectories. Because of the high levels of recontact and sanction seriousness and length, Indigenous offenders were on average more costly. These findings emphasise the high cost of current criminal justice system responses to Indigenous and chronic offenders in particular and the need to consider innovative and more cost-effective approaches to reduce offending by individuals in these groups.

Trends & issues in crime and criminal justice no. 594. Canberra: Australian Institute of Criminology, 2020. 17p.

By Jim Quinn  

Since New York State’s 2019 bail reform went into effect, controversy has swirled around the question of its impact on public safety—as well as its broader success in creating a more just and equitable system. The COVID-19 pandemic (which hit three months after the bail reform’s effective date), the upheaval following the killing of George Floyd, and the subsequent enactment of various police and criminal justice reforms are confounding factors that make assessing the specific effects of the 2019 bail reform particularly complex. This paper attempts to give the public a better sense of the risks of this policy shift and the detrimental effect that the changes have had on public safety. First, I will lay out the content of the bail reform and will measure pertinent impacts on crime and re-offending rates. Then I will review changes made in the 2020 and 2022 amendments. I will look at the push for supervised release and closing Rikers Island and how those initiatives fed into the momentum behind these laws. Finally, I will propose recommendations to improve bail reform’s impact on public safety, which include: 1. Allow judges to set bail, remand, release on recognizance (ROR), or conditions of release for any crime and any defendant. There should be a presumption of release for misdemeanors and nonviolent felonies, which could be rebutted by the defendant’s prior record or other factors that indicate that the defendant is a flight risk. There should be a presumption of bail, remand, or nonmonetary conditions for defendants charged with violent felonies or weapons offenses. This presumption could also be rebutted by evidence of the defendant’s roots in the community, lack of criminal record, and similar factors

New York: The Manhattan Institute, 2022. 29p.

By Fionnuala Ratcliffe

Our criminal justice system in its current form is unsustainable. Long court backlogs, few crimes resolved, probation staff shortages. An ever-rising prison population despite prisons costing a disproportionate amount of taxpayer money and not working to reduce reoffending. One problem is that our criminal justice services - prisons, probation, courts, prosecution, and to some extent policing - are incredibly centralized. There is a lack of local ownership for crime prevention and reducing reoffending. Local agencies go cap in hand with the central government for funding, rather than fostering and supporting innovative solutions locally. Another issue is that many of the levers to prevent crime and reoffending - including health, employment, education, and housing - lie outside the criminal justice system. Local actors are not financially incentivized to tackle these drivers and invest to solve problems upstream. Public services work in silos rather than together toward common goals. We can reduce crime and make our communities safer by giving local leaders the right levers and incentives to tackle crime at a local level – by localizing justice services and budgets. What would localized justice services look like? — Delegation of justice budgets for prison places, magistrates’ courts’ administration, policing, prosecution, and probation to police and crime commissioners or mayors — Pooling of criminal justice resources so that local services work together towards a shared aim and share any savings made — Financially incentivizing local services to shift investment upstream from enforcement to prevention, by allowing them to benefit from the savings from investment — Local management of probation and of the administration of magistrates’ courts and the CPS. Prisons and Crown Courts continue to be managed nationally  Prosecutorial and judicial independence are maintained through the continued use of nationally agreed prosecution and sentencing guidelines. — Standards monitored through inspectorate, effective community scrutiny, and a newly created interdepartmental board This paper sets out how localizing criminal justice services will: — Reduce crime — Reduce waste in criminal justice system spending — Increase trust and confidence in the criminal justice system — Improve the experience of victims

2023. 13p.

By Fionnuala Ratcliffe and Penelope Gibbs

How easy are the magistrates’ courts to access, navigate and understand? This report seeks to answer that question, drawing on the experiences of 82 volunteer members of the public observing their local magistrates’ courts over six months in 2023. CourtWatch London was a mass court observation project where citizen volunteers observed magistrates’ court hearings and reported what they saw. From July to December 2023, a diverse group of 82 volunteer members of the public (court watchers) visited their local London magistrates’ courts armed with a booklet of observation forms and a small amount of training. Between them they observed over 1,100 hearings and reported on the treatment of defendants, the decision-making of magistrates and district judges, and their experiences of attending the magistrates’ court as a public observer. This report summarises courtwatchers’ experiences of trying to observe magistrates’ court hearings and the barriers they faced. Their reflections on the justice they saw delivered there and specifically how young adult defendants were treated, are reported on separately. The courts are in principle open to any who want to observe, for whatever reason. Despite this, volunteers were sometimes severely constrained by a court system that has deprioritized public access. For example, court watchers could not hear court proceedings from many of the public galleries. The response from court staff towards volunteers bringing this to their attention ranged from assistance to puzzlement to hostility. Our efforts to alert senior London court representatives to the issue seemed to go unnoticed. Courtwatchers should not have needed to justify their presence but were asked to do so all too frequently. Staff questioning of public observers may be well-intentioned, but had potential to intimidate an unconfident observer. Inaccurate court lists, poor sightlines and courtroom jargon also made it difficult for courtwatchers to work out what was happening. All this sends a message to public observers that you can be there, but it is not the court’s problem if you do not understand what is going on. This report includes recommendations for how the courts can become more open, including: sending ‘secret shoppers’ into courts to check accessibility for members of the public; auditing audibility in courtroom public galleries and fixing any problems this reveals; better and fuller court listings online and in paper; and training for court staff and judges to re-prioritise the principles of open justice.

London: Transform Justice, 2024. 23p.  

By Ionnuala Ratcliffe and Penelope Gibbs

How are young adults treated in the magistrates’ courts? How, if at all, is their maturity considered and taken into account by the court? This report seeks to answer these questions, based on testimony from 82 courtwatchers, volunteer members of the public who observed London magistrates’ courts for six months in the second half of 2023. Sentencing Council guidelines recognise the potential impact of young adults’ developing maturity on their responsibility for an offence, their ability to cope with a prison or community sentence, and their capacity to participate effectively in court proceedings. Courtwatchers observed almost 200 hearings involving a young adult defendant. They reported that maturity was mentioned in less than a third of hearings observed. When maturity was raised, it usually wasn’t covered in depth, rather “mentioned as an aside, no specific arguments made.” Some maturity arguments applied specifically to the offence or defendant: on the young adult’s susceptibility to peer pressure, their difficulties assessing risk, the potential impact of a court sanction on their education or employment, and their potential for rehabilitation. But these were few and far between. When mentioned, arguments about maturity did sometimes prompt the court to reduce the severity of the sentence given, or at least to postpone sentencing until they had more information about the defendant. But most of the time, comments about maturity were dismissed by court decision makers or deprioritised compared to other factors. Courtwatchers observed young adults being treated much the same as older defendants, with little direct engagement with young adult defendants, frequent use of the secure dock and challenges arranging interpreters. This report sets out recommendations for how the courts can deal with young adult defendants more effectively by considering maturity more thoroughly. 

London: Transform Justice, 2024. 31p.

By Fionnuala Ratcliffe and Penelope Gibbs

This report summarises findings from CourtWatch London, a mass court observation project where citizen volunteers observed magistrates’ court hearings and reported what they saw. From July to December 2023, a diverse group of 82 volunteer members of the public (courtwatchers) visited their local London magistrates’ courts armed with a booklet of observation forms and a small amount of training. Between them they observed over 1,100 hearings, reporting on the treatment of defendants, the decision-making of magistrates and district judges, and their experiences of attending magistrates’ court as a public observer. This report focuses on courtwatchers’ observations of the court process and the court’s decision-making. We have written separate reports on their experiences of being a public observer trying to access and understand the courts, and their reflections on how young adult defendants are treated. Our first report - “Why are you here?” Open justice in London magistrates’ courts - highlights how court watchers found it hard to comprehend the court system. Their observations suggested defendants were struggling too. People cannot have a fair trial without a clear understanding of what they are accused of, what is happening in court, and the implications of the court process. Our court watchers observed magistrates’ courts often falling short. Defendants were usually physically isolated from the rest of the courtroom in the secure dock, where it was all too easy to ignore them for the majority of the hearing. A significant minority of defendants appeared without a lawyer. Courtwatchers felt that unrepresented defendants were severely disadvantaged by their lack of legal advice, even though court staff and judges made efforts to explain things. Defendants who needed interpreters were some of the worst served by the court. And court watchers were alarmed to see hearings going ahead despite some defendants being unwell. Despite these concerns, courtwatchers felt judgments made were overall fair, reasoned and practical. They appreciated magistrates and judges who took the time to get to the bottom of things and to find the most productive solution for the individual in front of them. Court watchers were most frustrated by what seemed to them ineffective or counterproductive sanctions. This included fines and other court costs which had to be paid by people of severely limited means, or punitive sentences given to people with serious drug addiction or mental health problems which did nothing to address those issues. Our court watchers also felt some time was wasted on cases that should not have been in court at all. Court watchers usually agreed with the court’s decision to remand people, although their reports highlighted some examples where bail might have been more appropriate. A few court watchers picked up on inconsistencies in how defendants were dealt with which they saw as evidence of racial bias.  Court watchers were shocked by what they perceived to be the inefficiency of courts. They expected hearings to start on time and to run continuously throughout the day. They were concerned that the valuable time of the many professionals in the room was being wasted. It was hard for courtwatchers to work out why so little was happening since court staff and judges seldom explained the delays. As court watchers gained experience, they gradually discerned the reasons - prosecution and defense advocates who didn’t have the right information in advance, nor the time to prepare for hearings, defendants not turning up for their hearing (often through no fault of their own) and technology which didn’t work well. The fundamental flaw in our court system highlighted by court watchers - that many defendants don’t know what’s happening in the court and so can’t meaningfully participate in the process - needs urgent action. We need simpler court proceedings so the process is intelligible to a layperson, and legal aid is available for a wider range of circumstances. At the very least, we recommend introducing a support service for defendants, available in every magistrates’ court. The use of court fines should be reduced, particularly for people whose poverty was a contributing factor to their offence. Fines should be replaced with sentences which instead address the drivers of crime. To improve court efficiency, research should be commissioned to understand the main causes of court delays and how they might be addressed. Meanwhile, the number of cases listed could be reduced by discontinuing some very old ones and encouraging the police to offer more out of court resolutions for lower-level crimes. This project shows the power and potential of court watching in England and Wales. The commitment from our volunteers to observe and report on over 1,100 hearings shows that ordinary people are willing to give their time and energy to hold our courts accountable. Their reflections, which focused on access, fairness and effectiveness, bring a unique perspective to the scrutiny of our courts. The act of courtwatching itself changed how many of our volunteers viewed the justice system and those who get into trouble with the law. And it’s possible that courtwatcher presence played a small role in encouraging the courts they observed to be fairer and more compassionate towards those who are swept up in our justice system

London: Transform Justice, 2024.   55p.

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,