By Daniel Ades Center for Justice Innovation Jessica Kay 

3,026 New Yorkers lost their lives as a result of a drug overdose in 2022, a 12% increase from the prior year and the highest number since reporting began in 2000. This increase in overdose deaths was evident across all five boroughs, and it expanded inequities based on race, age, income, and geography.[1] Throughout the process of conducting quarterly meetings, the RxStat[2] Overdose Fatality Review Committee (OFR) realized that many individuals who fatally overdosed in New York City had previous contact with the criminal justice system. A brief review of the 20 OFR cases examined since June 2021 indicated that only one of them had no recorded criminal justice interaction.[3] According to the New York State Office of Addiction Services and Supports (OASAS), persons with criminal justice involvement account for 47% of all treatment admissions to OASAS-certified programs.[4] However, for the reasons discussed below, criminal courts are not always the optimal setting for individuals struggling with problem drug use to access treatment services. Ideally, preventive community-based treatment providers would intervene in an individual’s problem drug use before the related behavior leads to criminal court involvement. Even so, given the reality of increased overdose deaths and the prevalence of problem substance use among individuals caught up in the criminal justice system, there was a clear need to explore the role of the courts in responding to individuals with substance use issues and preventing overdose fatalities. On September 19, 2023, RxStat and the Center for Justice Innovation facilitated Substance Use, Overdose Prevention, and the Courts: A Citywide Collaboration at New York Law School to address issues related to this epidemic of overdose fatalities. The all-day event[5] focused on the role of the courts as an intercept point in addressing substance use disorder and preventing fatal overdoses, with an emphasis on communication among stakeholders in the criminal justice system, across boroughs, and between the many disciplines and agencies reflected in the event’s participants. Indeed, a primary inspiration for the event was bringing together the court-based perspectives with those of clinical and public health professionals to deepen the dialogue and establish connections between participants who struggle daily with the same issues but may not be aware of each other’s challenges. This report not only documents the differing viewpoints and major themes from the day, highlights critical questions raised, and summarizes innovative approaches being employed throughout the city—it is also intended to serve as a catalyst for continued dialogue between participants and make recommendations for court stakeholders to consider in trying to expand the number of individuals who could access potentially life-saving treatment as a result of their court involvement  

New York: Center for Court Innovation, 2024. 20p.  

By Brittany R. Davis, Rebecca Thomforde Hauser, Heaven Berhane, Gene Johnson, Saloni Sethi, Bea Hanson, Devin Deane, and Karolin Betances

Many responses to intimate partner violence (IPV), especially work to engage those who have caused harm through IPV have remained relatively unchanged over the past few decades despite the widespread, long-lasting, and devastating impact IPV continues to have on communities. Engaging people who cause harm is a crucial part of supporting survivors, fostering healthy relationships and communities, and ending violence. In response to a need to develop more effective programming, New York City implemented a comprehensive citywide approach to people who cause harm, developing multiple programming options for people who cause harm both within and outside of the criminal legal system. This concept paper outlines these programs and proposes several practice implications for the field. 

New York: Center for Court Innovation, 2024. 24p...

By Samantha Plummer, Timothy Ittner, Angie Monreal, Jasmin Sandelson, Bruce Western

Data from a unique survey of court- involved New Yorkers collected during the COVID-19 pandemic in 2020 provides evidence for a cycle of disadvantage involving penal control, material hardship, and health risk. We find evidence of chaotic jail conditions from March to May 2020 in the early phase of the pandemic, and high levels of housing and food insecurity, and joblessness for those leaving jail or with current criminal cases. The highest levels of material hardship—measured by housing insecurity, unemployment, shelter stays, and poor self- reported health—were experienced by those with mental illness and substance use problems who had been incarcerated

RSF: The Russell Sage Foundation Journal of the Social Sciences, Volume 9, Issue 3, May 2023, pp. 232-251 pages

By Sara K. Rankin

The criminalization of homelessness refers to the enactment and enforcement of laws and policies that punish unsheltered people for surviving in public space, even when those individuals have no reasonable alternative. The constitutional and civil rights issues stemming from criminally charging unsheltered people for public survival are clear, albeit not uncontested. But cities often skirt legal challenges to criminalization by pursuing means other than criminal charges to punish homelessness. Many cities “civilly criminalize” homelessness through civil enforcement, which extends from infractions or fines to “invisible persecution,” such as the persistent policing and surveilling of unsheltered people. While courts, legislatures, and advocates largely focus on criminal charges, those punishments are just the tip of the criminalization iceberg: civil enforcement is arguably more extensive and damaging. However, courts and legislatures largely do not protect people experiencing homelessness from civil criminalization. This Article argues for greater attention to the devastating impact of civil punishments, drawing from other critiques that expose how civil tools punish poor and vulnerable people. It also examines how punishment operates outside of both criminal charges and civil sanctions, severely penalizing unsheltered people and requiring reform.

Harvard Civil Rights-Civil Liberties Law Review [Vol. 56 , 2021. 46p.

By Abel Rodriguez

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures courts routinely order people deported to their deaths. As these preventable deaths persist, particularly among migrants of color, the Supreme Court has all but foreclosed causes of action against individual federal agents for wrongful death. It has done so most notably in its recent 2022 decision Egbert v. Boule, further limiting judicial remedies for constitutional violations and sanctioning use of force as a routine function of immigration enforcement.

This Article provides a novel perspective on law enforcement and race. It is the first to provide a comprehensive examination of lethal immigration enforcement, arguing that racialized policy rationales, impunity instituted by courts, and prevailing political paradigms have coalesced to render migrants of color expendable. Therefore, the enforcement system must be reimagined. While scholars have begun to analyze the immigration system in terms of “slow death,” or harms that occur over time, a holistic view of “spectacular deaths,” those readily perceived, is lacking. After mapping how the immigration enforcement system takes migrant lives, this Article interrogates the policy rationales for lethal enforcement in light of largely unexamined data, finding that anti-Blackness drives punitive immigration detention and the perceived dangerousness of Latinx migrants fuels lethal border policies. It then turns to an analysis of wrongful death actions and recent Supreme Court doctrine, poised to impede remedies for excessive force in courts further and escalate racialized violence against noncitizens. Ultimately, given the urgency of addressing rising migrant mortality, it calls for a paradigm shift beyond liberal reforms to end lethal enforcement and its racial subordination.

CORNELL LAW REVIEW [Vol. 109:465, 2024, 71p

By Michael Kagan

In theory, the Department of Homeland Security bears the burden of proof  when it seeks to deport a person from the United States. But the government rarely has to meet it. 

This Article presents original data from live observation in Immigration Court, documenting that almost all respondents in deportation proceedings admit and concede the charges against them, even when they have attorneys, without getting anything in return from the government. 

Focusing especially on the role of immigrant defense lawyers, the Article explores why this is happening. 

It critiques the legal standards of proof used in Immigration Court, while also exploring normative ambiguities about the role of 

immigration lawyers in deportation proceedings. Together, these factors are effectively depriving many immigrants of the vigorous legal defense that they deserve.  

UC IRVINE LAW REVIEW [Vol. 14:163 2024, 49p.

By Tasseli McKay and William A. “Sandy” Darity Jr.

Social scientists continue to declare that mass incarceration, a defining social force of the last half century, is on its way out. Lifetime risks of imprisonment are indeed in decline, as are absolute and relative imprisonment risks for Black Americans. But whether we consider mass incarceration to be over, or even on its way out, depends a great deal on what we believe mass incarceration is and what it does.

Scholarship on the “collateral consequences” of mass incarceration, leaving concerns with political etiology to political scientists, is curiously absent a broader concept of how such consequences function. Even as the field rigorously documents the vast social, political, economic, and health fallout of mass incarceration, it remains largely agnostic on a central theoretical concern: Do we conceive of mass incarceration as a policy mistake with negative consequences for us all, or as a well-running engine of racial stratification that has enriched some Americans at others' expense? How we answer this question, or do not, has tremendous implications for how we study the harms of mass incarceration and what policy moves we deem capable of confronting it.

Scholarship on mass incarceration's consequences is often introduced with reference to racial inequality. Such scholarship has identified an array of mechanisms by which mass incarceration appears to contribute to racial stratification, particularly through a longstanding line of inquiry on the disproportionate impact of incarceration-related constraints on Black men's workforce participation, income, and wealth. Yet most such research frames these phenomena as an unfortunate artifact of racially disproportionate criminal legal system contact, rather than situatingthe impetus and functioning of the criminal legal system within a broader theory of structural racial inequality.

Critiquing the failure to engage questions of structural racism in empirical research on mass incarceration's consequences, two of the field's preeminent scholars argue,

While most studies that explore the consequences of mass incarceration for American families are motivated by racial inequality within the carceral system--rightfully so, given the massive racial disparities in incarceration rates and criminal justice involvement--the work often fails to engage this important issue in meaningful ways .... We neither interrogate why we see racial disparities in mass incarceration nor do we investigate why we might see racial disparities in outcomes due to mass incarceration.

Indeed, with important exceptions, collateral consequences research inventories the implications of mass punishment for individuals, neighborhoods, and nations rather than examining how a racially targeted punishment system functions within a broader set of national and subnational institutions that systematically privilege whiteness. Further, the possibility that mass incarceration produces systematic benefits, in addition to or even as an impetus for its systematic harms, receives very limited scholarly attention. Such research, if it aims to confront racial injustice, must “move beyond description of racial inequality [and] think critically about how our society's raced institutions interact with one another to stratify the experiences of American families”.

Toward that end, the current review applies the theory of stratification economics to consider whether and how the broad criminalization and intensive punishment of Black Americans have advanced or advantaged their White contemporaries. First, the review briefly revisits key theoretical perspectives on the consequences of mass incarceration and proposes stratification economics as a meta-theoretical framework for understanding the production and functioning of those consequences. Next, it applies stratification economics to available social scientific evidence on the consequences of mass incarceration, analyzing the implications of that evidence for the relative standing of White Americans. Finally, the review advances an agenda for future research and policy capable of confronting and redressing the ill-gotten gains of mass incarceration.

20 Annual Review of Law and Social Science 309 (2024), 22p.

By Tashayla Sierra-Kadaya Borden

xisting literature does little to address the unique victimization of Black women in the law. Studies looking through a racial lens may ignore Black women by failing to address gender. Alternatively, gender analysis may center around issues specific to white women. White feminist scholars promote carceral feminism, a “neoliberal law-and-order agenda pursued by a coalition of secular anti-prostitution feminists and white evangelicals.” Carceral Feminism focuses on white womanhood and harms marginalized communities, actively pushing Black women into prison. To address this, Black feminist scholars have developed key theories to understand Black women's experiences. One such scholar, Moya Bailey, coined the term misogynoir to describe “the uniquely co-constitutive racialized and sexist violence that befalls Black women as a result of their simultaneous and interlocking oppression at the intersection of racial and gender marginalization.” Misogynoir operates as a form of implicit or explicit bias that informs how and why the state views Black women as dual victims and victimizers.

In 2019, the New York State Legislature passed the DVSJA. The DVSJA amended New York's existing Penal Law § 60.12 and created Criminal Procedure Law § 440.47 to provide resentencing for currently incarcerated individuals. This statute permits a judge to change a domestic violence survivor's initial sentence if the abuse was a “significant contributing factor” to the crime. The DVSJA is the first legislation of its kind in the United States. Advocates and survivors promoted this statute to decriminalize trauma and help individuals who commit crime while suffering abuse. Other states have enacted similar laws, but Black women still face lingering issues that exacerbate coercive abuse, racism, and gendered violence.

This Note examines the impact of New York's revolutionary DVSJA on Black woman survivorship while proposing solutions and improvements for other states aiming to replicate the statute. Part I summarizes the DSVJA and contextualizes the case law that preceded its passing. Part II describes the unique impact of domestic violence on Black women, the challenges of qualifying for relief under the statute, and the limitations of resentencing. Lastly, Part III offers noncarceral solutions that replace sentencing and help Black women share their experiences as abuse survivors.

144 Columbia Law Review 2065 (2024), 40p.

By Andrew Howard

Almost every county in the United States elects its chief Prosecutor, but the chief Public Defender, if there is one, is generally an appointed position. In four states, however, some or all of the Public Defender offices have elected leaders. Although prosecutorial elections have been heavily studied and criticized, relatively little attention has been paid to the elections of their counterparts. This Note sheds light on how Public Defender elections impact a criminal justice ecosystem. A series of interviews with elected Public Defenders reveal these elections can enhance the independence and stature of the position. Additionally, the interviews and additional research rebut the primary criticism of these elections: that voters may elect someone who wanted to work against indigent defendants. There are simply very few examples relative to the many counties that have these elections. These qualitative findings are supported in part by further quantitative analyses. First, this Note found a correlation of increased Public Defense experience amongst the state judiciary in jurisdictions where there the chief Public Defender is elected. Second, this Note found a correlation between these elections and increased salary parity between Public Defenders and Prosecutors in the same state.

Accordingly, this Note argues that some counties should explore making their chief Public Defender an elected position. While far from a panacea for the many issues facing the American criminal justice system, these elections could help enhance the quality of indigent defense where implemented.

Columbia Human Rights Law Review, 2020, 40p.

By Ben Finholt

For decades, the North Carolina Supreme Court—like many other state supreme courts—largely ignored its own state constitution’s ban on harsh criminal punishments and deferred entirely to federal case law on the constitutional limits of excessive sentences. The result has been near-total deference to the state legislature and a discriminatory mass incarceration crisis that has ballooned without meaningful constitutional checks.

This approach has been a serious mistake of constitutional law. As Justice Harry Martin once noted, “the Constitution of North Carolina . . . is the people's timeless shield against encroachment on their civil rights,” and it provides uniquely broad protections of civil rights and personal liberty. Yet sentencing law has been the exception, despite a specific provision that bans “cruel or unusual punishments,” and whose text and original meaning are distinct from the Eighth Amendment.

The North Carolina Supreme Court finally revived this clause, Article I, Section 27, in two recent cases involving children sentenced to serve decades, recognizing that it should not be interpreted in lockstep with its federal counterpart. This Article argues that these cases provide a crucial moment of doctrinal clarity and opportunity to articulate the independent meaning of Section 27 and unleash its power as an essential tool in the urgent project of dismantling mass incarceration. While previous scholarship has noted that state analogs to th

e Eighth Amendment can and should bear their own independent meaning, this Article provides a full analysis of Section 27 specifically, looking to its text and history, related constitutional provisions, and other factors to show that it provides broader protections against excessive punishments than does current Eighth Amendment case law. This Article also sketches a doctrinal framework that state courts can apply in all challenges to excessive punishment, not just those involving children.

Finally, the Article places this constitutional analysis in the specific context of North Carolina’s criminal legal system, explaining how other mechanisms of reducing needless incarceration have proven wholly inadequate.

Duke Law School Public Law & Legal Theory Series No. 2023, 49p.

By Erin Thorvaldson and Kendric Holder

In 2015, Rhode Island had the country’s second-highest probation population rate, with high probation revocation rates and lengthy probation terms contributing to an increasing prison population. To address these challenges, Rhode Island requested support through the Justice Reinvestment Initiative (JRI). As a result of JRI, Rhode Island amended the superior court’s Rules of Criminal Procedure and Sentencing Benchmarks in 2016, limiting probation periods for nonviolent offenses to 3 years and allowing for early termination of probation for people satisfying specified requirements. Subsequently, 6 JRI bills were passed in 2017. Among other things, these new laws and amendments to the superior court’s Rules of Criminal Procedure and Sentencing Benchmarks created policies that centered on reducing the prison population, launching a diversion program with an alternative to traditional conviction and sentencing, and screening cases for eligibility for early discharge from probation. This brief highlights the results of these measures.

New York: The Council of State Governments Justice Center, 2024. 5p.

By Erin Thorvaldson and Kendric Holder

In 2016, Georgia used the Justice Reinvestment Initiative (JRI) to focus on community supervision, as the state had the highest rate of adults on probation in the country. The JRI analysis showed that Georgia’s large probation population was due to widespread use of probation sentences for misdemeanor offenses, as well as lengthy felony probation sentences that were used in lieu of and in addition to prison sentences. Additionally, an estimated 50,000 people in Georgia had been on supervision for more than 2 years, despite the risk of recidivism dropping by half after an individual’s first year on supervision. In 2017, the governor signed Act 226, codifying the JRI policy framework. It featured policies to reduce lengthy probation terms and large probation caseloads, enhance the cost-effectiveness of responses to probation and parole violations, and improve the handling of legal and financial obligations for people on felony probation. This brief explores the effects of this legislation.

New York: The Council of State Governments Justice Center, 2024. 5p.

By Erin Thorvaldson and Kendric Holder

In 2017, Missouri’s prison incarceration rate was eighth highest in the country, and violent crime had increased 13 percent between 2010 and 2016. If the rate of growth in Missouri’s prison population continued, the state would have needed to build two new prison facilities by 2021, which would have cost nearly half a billion dollars in combined construction and operating costs. To address these challenges, the state used the Justice Reinvestment Initiative (JRI), which resulted in legislation in 2018 aimed at reforming Missouri’s criminal justice system. This brief explores the effects of that legislation.

New York: The Council of State Governments Justice Center, 2024. 8p.

By Alison Martin and Greg Halls

In March 2020, the Iowa Department of Corrections (IDOC) faced overcrowding and urgent health concerns. To address these issues, IDOC and other criminal justice agencies implemented measures to reduce the prison population and expand community-based corrections (CBC). These efforts included limiting revocations, expanding administrative review processes, releasing low-risk individuals, and increasing the use of telehealth and technology for supervision and programming. As a result, the prison population decreased by 13 percent within 6 months, while the CBC population increased by nearly 17 percent. Despite this increase, the average monthly revocation rate decreased by almost 40 percent between March 2020 and March 2021. In 2021, Iowa state leaders requested support from the U.S. Department of Justice’s Office of Justice Programs’ Bureau of Justice Assistance and The Pew Charitable Trusts to assess the impact of these changes on public safety and CBC operations using a Justice Reinvestment Initiative approach. This brief summarizes the findings from that effort.

New York: The Council of State Governments Justice Center, 2024. 9p.

By Min-Taec Kim

The aim of this study was to assess the impact of participating in a program through a High Intensity Program Unit (HIPU) on reoffending, violent reoffending and reimprisonment within 3, 6 and 12 months of leaving custody. METHOD We estimate the impact of the HIPUs on reoffending, violent reoffending and reimprisonment within 3, 6 and 12 months of leaving custody by conducting three different comparisons between people who were identified as eligible for the program: 1. Comparing individuals by program status (Did not start, Started but did not complete, Finished); 2. Comparing individuals by the number of therapeutic hours received at a HIPU, regardless of program status; 3. Comparing individuals using variation in therapeutic hours recieved, restricted to just those who exited due to “insufficient time”. We use regression models across all analyses to adjust for observable differences between individuals. The key threat to our estimates is selection bias, which could be caused by unobserved differences between those starting and/or completing a program through the HIPUs and those who do not. The first two comparisons are (possibly) biased towards a higher estimate, while the third comparison attempts to avoid this bias by leveraging variation in time left to serve.

(Crime and Justice bulletin No. 250), Sydney: NSW Bureau of Crime Statistics and Research.  2022. 22p.

By The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

This volume describes what we have learnt about the treatment of people with disability in the criminal justice system in Australia. In particular, we have found people with disability are significantly over-represented at all stages of the criminal justice system. Chapter 1 gives a snapshot of the available data about people with disability in the criminal justice system, common types of disability, and factors contributing to people with disability having high rates of contact with the criminal justice system. Particular groups of alleged offenders with disability are far more likely to have contact with the criminal justice system (including with police, courts and corrections) than other groups. These include First Nations people with cognitive disability, women with disability experiencing violence, and people with co-occurring cognitive disability, psychosocial disability and other disabilities. The statistics are stark. For example, a 2015 report on adult prisoners in New South Wales found that 43 per cent of First Nations women who participated in the study had a disability,4 and between 40 to 90 per cent of adult prisoners may have an acquired brain injury.5 Because of limitations in the available data, the true number of people with disability in the criminal justice system in Australia is unknown. Nonetheless, it is clear people with disability – particularly those with cognitive disability – are disproportionately represented in criminal justice settings, across all stages, from police contact and arrest, through to court processes and correctional settings. The disproportionate rate of imprisonment of people with disability is not the result of any inherent relationship between disability and crime. Rather, it reflects the disadvantages experienced by many people with disability, such as poverty, disrupted family backgrounds, family violence and other forms of abuse, misuse of drugs and alcohol, unstable housing and homelessness. People with disability, particularly cognitive disability, are also exposed to frequent and intense policing.6 People with cognitive and mental health impairments experience multiple forms of disadvantage, making them more likely to be criminalised and caught up in a cycle of reoffending and incarceration. Relatively little attention has been paid by governments to the disproportionate number of people with cognitive disability who are in custody. The data we received about the proportion of First Nations people with cognitive disability in custody, particularly in youth detention, exposes a largely hidden national crisis. For example, as of 2015, almost one in four First Nations young people aged 14 to 21 in detention were estimated to have an intellectual disability, compared with one in 12 non-Indigenous young people. Despite this strong evidence, with the possible exception of New South Wales Corrective Services, corrective service and youth justice agencies do not collect or record adequate data about disability in their prison and youth detention populations. They also use widely different methods to identify prisoners with disability. No corrective service or youth justice agencies use a culturally validated screening tool to identify disability in First Nations people in custody. This means custodial agencies cannot identify the prevalence and types of disability within incarcerated populations, or adequately understand their support needs. This lack of data also limits the development, implementation and evaluation of criminal justice disability policies and programs, and the monitoring of health and disability support needs of people with disability in custody. We heard that prisoners with disability are: • more likely to have difficulty coping with the prison environment • more likely to experience a higher rate of comorbid mental health disorders and physical conditions than prisoners without disability • at increased risk of being disadvantaged and socially isolated • at higher risk of returning to custody. Interactions with the criminal justice system come at great social and economic cost to the community. It benefits the entire community if people with disability do not enter the criminal justice system in the first place, and if treatment and supports are improved within the criminal justice system and continue after any term of imprisonment. Further research is required on the social and economic benefits of early support to prevent people with cognitive disability and complex support needs from coming into contact with the criminal justice system. Improved screening and identification practices, complemented by further research, are needed to understand the true extent of disability of people in criminal justice settings. This would also improve understanding of Australia’s compliance with its obligations to ensure the rights of people with disability are upheld in the criminal justice system.

Sydney: NSW Parliament: The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability 2023. 368p.

By Nicholas Scurich and Richard S. John

Sexual recidivism rates based on arrests or convictions underestimate actual reoffending due to underreporting. A previous Monte Carlo simulation estimated true recidivism rates under various reporting and conviction assumptions but did not account for desistance—the decreasing likelihood of reoffending over time. This study addresses that gap by incorporating a 12.3% annual desistance rate (from a well-known empirical study) and exploring its impact alongside varying charge rates (100% to 5%). The results showed that reductions in charge rates lead to disproportionately large increases in recidivism. For instance, lowering the charge rate from 50% to 25% results in a much larger increase in recidivism than reducing it from 100% to 75%, despite both being 25% reductions. This indicates that as charge rates decrease, recidivism grows more sharply. A sensitivity analysis also examined desistance rates of 0%, 5%, 12.3%, and 20%. Higher desistance rates cause reoffending to occur earlier but have little impact on long-term totals. Over 25 years, reoffending rates remain similar across desistance rates, suggesting desistance affects the timing, but not the overall amount, of reoffending.

UC Irvine School of Law Research Paper No. 2025-02, 26p.

By Susan McMahon

The competence to stand trial system is a “slow-moving tsunami” that has grown exponentially in recent years, capturing far more people than jurisdictions have the capacity to handle. As a result, individuals who are possibly incompetent become trapped in pretrial competence purgatory, often detained in jail for months or even years. The harms of this system can be tragic. Competence detainees have died by suicide, starvation, and beatings. They are placed in solitary confinement, experience neglect and abuse, and deteriorate mentally and physically while confined. Often, these individuals are accused of misdemeanors. Often, they go through the competence process only to be returned to court and released without any connection to long-term support.

Scholars have long advocated for changes to this process. But even the most ambitious of these reforms will only shift outcomes at the margins. As long as the competence system remains in place, it will be overused, and it will continue to cause massive harms, both in dollars wasted and in human suffering.

This Article is the first to propose a more fundamental change: barring misdemeanor defendants from even entering the competence process. If a court finds a bona fide doubt as to an individual’s competence, that person would instead have the charges against them dismissed and would be transferred to treatment outside of the criminal system. This shift reduces the harms of the current competence system and shrinks its footprint, decreasing delays and freeing up funds that could be better spent elsewhere.

At the same time, this approach recognizes that the criminal legal system simply does not work for individuals with mental disabilities. Rather than tinker with its mechanics or create exceptions for this population, a better solution, exemplified by this proposal, is to abandon that system altogether in favor of non-carceral models.

. UC Irvine School of Law Research Paper No. 2024, 53p.

By Measures for Justice

MFJ collects data regarding adult criminal cases filed and resolved in state courts. Through these efforts,
we’ve identified gaps in the types of information received that limit our ability to generate a
comprehensive picture of how criminal cases are processed by trial courts across the United States. One
example of these gaps relates to cases involving American Indians and crimes committed on tribal lands. In an effort to paint a more comprehensive picture of how criminal cases unfold at the local level, MFJ
wanted to better understand jurisdictional authority over these cases.
Unfortunately, we quickly learned that disparate and convoluted laws governing criminal case processing
deeply complicate the question of jurisdictional authority and act as a significant barrier to understanding
the ways in which these cases are processed. A key contributor to this jurisdictional confusion is Public
Law 83-280 (PL-280), which reduces the ability of American Indian tribes to independently respond to
crimes occurring on Indian land, instead allocating authority to state governments to varying degrees across several states.   PL-280 plays a significant role in dictating which institutions respond to criminal offenses and, consequently, what justice looks like for different people across different communities in the United States. The sections that follow shed light on the complexity created by PL-280 and the challenges it poses for data collection and system transparency. Importantly, the intentions of this report are not to make comparisons or draw conclusions about the effectiveness of these differing approaches to justice, but rather to highlight the importance of data transparency and accessibility for the purposes of evaluating system performance and holding administrators accountable. We argue that this transparency is always key to ensure the fair and effective handling of cases, and this is of particular importance in places where the power to handle criminal matters has expanded beyond federal and tribal governments to the state by way of PL-280.

Rochester, NY: Measures for Justice, 2023. 16p.

By Measures for Justice

  After experiencing a series of hurdles obtaining and analyzing criminal justice data in New York State, Measures for Justice (MFJ) set out to better understand the state’s data infrastructure. Drawing on interviews with system stakeholders--including practitioners, policy advocates, and researchers--we explored the quality and availability of criminal justice data in the state of New York. With heated criminal justice reform debates underway, there is a clear need for data that can speak to system performance. And yet our investigation uncovered that, with few exceptions, the mechanisms for criminal justice data collection and release in New York State are broken. Efforts to put data to use across the state are frequently hampered by obscure systems, antiquated technologies, arduous request processes, and a degree of partiality that allows data access to some and not others. The present report explores each of these themes and ultimately suggests four pathways forward for New York agencies looking to pursue equitable and responsible data practices.

Rochester, NY: Measures for Justice, 2021. 23p.