By Jay Gormley, Gabrielle Watson, Gavin Dingwall, Jade Mouton, Jonathan Bild and Julian Roberts

Firearms offences are statistically rare yet in light of their potential for harm cause considerable public concern. The offences vary greatly in terms of their nature and possible sentences. As a result, the sentencing exercise is often complex. Courts must weigh the harm caused, intended, or which was reasonably foreseeable, as well as the culpability of the individual offender. Quantifying the harm caused can be particularly challenging where a firearms offence does not have an identifiable victim as firearms offences are inherently potentially harmful. An additional complexity arises in a small number of serious gun crimes which carry a mandatory minimum sentence. When sentencing these offences, the court must also consider whether exceptional circumstances may justify the imposition of a sentence which falls below the statutory minimum. This report examines research and sentencing guidance relating to firearms offences. These offences include a range of crimes varying in seriousness, although most create a risk of serious harm or death. We conducted a literature review of the social and socio-legal databases to uncover relevant publications for the period 2000-2024. As will be seen, most of the scholarship in the area focuses on restricting access to firearms rather than punishing offenders convicted of firearms offences. Within the more restricted domain of sentencing, the majority of publications address mandatory sentencing as a response to gun crime. Most Western nations have introduced mandatory minimum sentences of imprisonment for the more serious forms of gun crime. The project also conducted a review of the public opinion literature to seek any research exploring public knowledge of, and attitudes towards, sentencing for firearms offences. Understanding public opinion is recognised as a relevant consideration by sentencing commissions and councils around the world. 3. With respect to guidance, England and Wales is the only relevant comparator jurisdiction. While gun crime is a near-universal problem, differences in the definition of offences – and laws around gun ownership – makes it inappropriate to compare sentencing guidance or trends with the United States. Canada, Australia and New Zealand are more comparable countries, but none of these operate formal sentencing guidelines. Many of the firearms offences in Scotland also exist in England and Wales and stem from the same UK legislation. In addition, courts in England and Wales and Scotland also employ sentencing guidelines. These follow a similar step by step approach (albeit with important differences). For these reasons, we restrict our comparisons to England and Wales. Contents of the Volume Chapter 1 Firearms Offences: This chapter identifies the offences under consideration, including statistics on the prevalence of the offences, and summarises the current legal framework for sentencing these offences. Chapter 2 Firearms Offenders and Associated Offences: This chapter explores the connection between firearms offences and other violent crime. It addresses the way that the assessment of risk interacts with sentencing for firearms offences and the indicators of further or more serious offending (such as homicide). Finally, it discusses the background of offenders and the intersection between minority ethnic backgrounds and sentencing for firearms offences. Chapter 3 Sentencing Guidance for Firearms Offences: This chapter reviews the principles and purposes of the sentencing of firearms offences and also discusses the sentencing guidelines for firearms offences issued by the Sentencing Council for England and Wales. Chapter 4 Research on Sentencing Responses to Firearms Offences: The final chapter summarises findings from research on the sentencing of firearms offences. The chapter also discusses the limited research exploring public attitudes to sentencing offenders convicted of firearms offences.

Edinburgh: Scottish Sentencing Council, 2025. 65p.

Chairman, Rt. Hon. David Gauke

This review of sentencing is tasked with a comprehensive re-evaluation of the sentencing framework in England and Wales, to ensure we are never again in a position where the country has more prisoners than prison places. This report – Part 1 of the Independent Sentencing Review’s conclusions – outlines the prison population challenge in figures, provides an explanation of why and how we got here, and advocates for an approach rooted in all statutory principles of sentencing and public service reform. Chapter one of this report examines trends in custody and the capacity pressures faced by HM Prison and Probation Service (HMPPS), which have brought the system dangerously close to collapse. At the end of 2024, over 85,000 individuals were held in the adult prison estate; these numbers undeniably exceed the population the system is designed to accommodate. The total prison population has grown by over 40,000 people since 1993, with adults sentenced for indictable offences now serving longer sentences. England and Wales also have one of the highest prison population rates in Western Europe. The probation service is similarly stretched: by September 2024, 240,497 individuals were under probation supervision, over 100,000 more than in 1993. Prison demand is expected to grow by an average of 3,000 people a year– the equivalent of building two large prisons per year. Without further government action, the prison population could reach up to 112,300 prisoners by November 2032.8 Chapter two summarises the drivers behind the increase in the use and length of custody. It concludes that the increase in the prison and probation population is not the consequence of a considered strategy as the most effective measure to reduce crime. Nor can it be explained by rising crime levels. In fact, latest estimates from the Crime Survey for England and Wales (CSEW) showed there has been an overall general decline in incidents of headline crime since 2017. The increase has been the result of many decisions made by successive governments and a “tough on crime” narrative that has focused primarily on punishment – understood as incarceration and longer sentences – on occasion responding to embedded misunderstandings about sentencing and high-profile individual cases. In tandem, there has been an underinvestment in probation and other alternatives that can provide rehabilitation and reduce reoffending. Chapter three outlines the need for change, and advocates for a system rooted in all the current statutory principles of sentencing. The emphasis on longer-term imprisonment has placed significant strain on the system, forcing successive governments to adopt costly and high-risk emergency measures. These have attempted to both increase short-term capacity (often in ways which are expensive and risky) and reduce demand by expediting the release of prisoners, such as the measures we saw in the autumn of 2024 when prisoners were released 40 per cent (as opposed to 50 per cent) of the way through their sentence. This incoherent approach also comes at a fiscal cost: new prison programmes are estimated to cost between £9.4 billion and £10.1 billion.10 The piecemeal and unstrategic manner in which sentence lengths have increased in recent decades has meant that there has been insufficient consideration of all of the statutory aims of sentencing: punishment, crime reduction, reform and rehabilitation, public protection and reparation. Punishment is an important aim for the criminal justice system and prison plays a vital role in delivering punishment. But too often decision making has been based on an approach that punishment is all that matters, and that the only form of punishment that counts is imprisonment.

Rather than approach sentencing policy based on the evidence of what is likely to be most effective in reducing crime and reducing reoffending, too often the knee-jerk response has been to increase sentence lengths as a demonstration of government action.

London: Miniarey od Juarixw2025. 65p.

by Luzi Shi, Megan Denver

A common concern in hiring individuals with criminal convictions is the stigma associated with the criminal record, which can include negative consumer reactions. We provide two novel tests of courtesy stigma, or the idea of transferring negative traits from one entity to another, through a nationwide survey. Using a conjoint experiment and a follow-up open-ended question, we first establish whether the public is less likely to select a restaurant if the business has a hiring initiative for people with conviction records. Using a vignette experiment, we then test whether the same factors driving personal stigma apply to courtesy stigma and whether hiring messaging frames influence courtesy stigma. We find evidence of criminal conviction courtesy stigma in the conjoint experiment. Respondents, however, typically reported the characteristics of the business itself as influential, and when the criminal record mattered, the underlying rationale was mainly instrumental: Avoiding a criminal record–friendly business was often due to safety concerns. We find similar instrumental results in the vignette experiment; the quality of service, rather than the characteristics of the criminal record or server's race, influenced restaurant recommendations. Perhaps for this reason, messaging strategies focusing on reducing criminal record stigma did not reduce courtesy stigma.

Criminology, Volume 63, Issue 1, February 2025, Pages 89-121

By Shadd Maruna

Early desistance research identified a key role for redemption scripts in the process of desisting from crime. This research emerged in an incredibly punitive environment at the turn of the century, when core beliefs about human redeemability were being challenged by popular and academic theories about incorrigible predators incapable of change. Desistance research made a profound impact, inspiring academic scholarship and changes to the policy and practice of reintegration. However, desistance research can also be accused of numerous crimes, as well, ranging from the adoption of an overly individualistic framing to the usurpation of the voices of research contributors. Fortunately, redemption is possible. A new generation of desistance theory and research now explicitly addresses the political and cultural factors impacting the desistance process and proposes that these hardened prejudices will only be changed by supporting a social movement led by and for system-impacted people. With their proven ability to inspire hope and promote action, redemption scripts may, again, be a key tool in such a movement.

Criminology, Volume63, Issue 1, February 2025, Pages 5-25

By Ava Pittman

Tacoma Housing Authority (THA) envisions a future where everyone has an affordable, safe and nurturing home, where neighborhoods are attractive places to live, work, attend school, shop and play, and where everyone has the support they need to succeed as parents, students, wage earners and neighbors. THA’s mission is to provide high quality, stable and sustainable housing and supportive services to people in need. It does this in ways that help them prosper and help our communities become safe, vibrant, prosperous, attractive, and just1 . To fulfill that vision and that mission, THA attempts to make informed judgments about whether to admit or deny applicants for its housing. It seeks to balance its mission to house people who need the housing while keeping it safe and enjoyable by excluding those who pose an undue risk. Like most other landlords, THA’s screening policies consider an applicant’s criminal history as a sign of risk for this purpose. THA also uses screening policies for admission to its rental assistance programs that help clients pay the rent to private landlords on the private rental market. This paper describes THA’s review of these uses of criminal history. It recommends some changes to THA’s screening policies. These recommendations arise from the review’s answer to the following questions: ● to what extent is an applicant’s criminal history a useful predictor of future tenant behavior; ● is excluding an applicant due to criminal history otherwise excluding a qualified tenant unnecessarily; ● does the use of criminal history as a screening criterion result in an undue and disproportionate exclusion of persons of color; ● the extent to which housing persons with criminal histories make a community, the justice-involved individual, and their families more successful; ● can changes to THA’s screening policies make THA’s housing more accessible to persons with a criminal history without incurring undu To help answer these questions, THA consulted the following sources: ● the research literature; ● THA’s current practices and the results; ● current practices of other public housing authorities, and the results; ● THA residents; ● THA staff; ● THA’s Landlord Advisory Group; ● THA’s liability insurance carrier. THA’s review of its use of criminal history as a screening criterion arose from related discussions in Pierce County. In late 2016, the Center for Social Innovation, a national research and training project addressing racism and homelessness, invited Pierce County to take part in a research study to identify the nexus of race to homelessness in Pierce County. They call the project, Supporting Partnerships for Anti-Racist Communities (SPARC). It included interviews with people who have or are experiencing homelessness in Pierce County. During these interviews, participants voiced that their past criminal history was a barrier to securing housing. Nationally, research tells the same story that: people with conviction histories face discrimination in many facets of life, including housing. In September 2017, the Vera Institute of Justice invited THA to participate with other public housing authorities in a new initiative, Opening Doors to Public Housing. The U.S Department of Justice funded this initiative. The initiative sought to help housing authorities assess how to safely increase access to stable housing for people with conviction histories. The Vera Institute of Justice provided THA with technical assistance, data from national research, and valuable substantive expertise in assessing that data. THA’s Department of Policy, Innovation & Evaluation (PIE) led this review. This paper conveys PIE recommended changes to THA’s screening use of criminal history.

Tacoma, WA: Tacoma Housing Authority, 2020. 76p.

By Vera Institute of Justice

Millions of people transition into the community from jails and prisons every year but face signifcant obstacles to securing safe, affordable housing. These barriers contribute to the revolving door of homelessness and incarceration. People who were formerly incarcerated are 10 times more likely than the general public to be unhoused, with a rate of 203 people experiencing homelessness per 10,000 people. The relationship between homelessness and incarceration is cyclical, as homelessness and housing instability increase the likelihood of future criminal legal system involvement: People who are unhoused are more likely to interact with police and are 11 times more likely to be arrested than people with stable housing. Viewed another way, access to stable and affordable housing substantially increases the likelihood that a person returning home from prison or jail will be able to receive support from their family, fnd and retain employment, rebuild supportive social networks, and avoid additional convictions. These improved outcomes and living conditions are relevant and crucial to the whole community: When people who are reentering their communities are housed and supported, the community is strengthened and public safety is improved. The United States has nearly 3,300 public housing authorities (PHAs) that serve approximately 1.2 million households, yet they are often inaccessible resources for people released from incarceration and in need of a safe place to live. At present, exclusionary criteria govern much of the country’s public housing that bar people who were formerly incarcerated from moving back in with their families—families who are often eager to reconnect and to help their loved ones reintegrate into society. These admissions criteria affect local public housing developments as well as federal housing choice vouchers, commonly referred to as Section 8, which provide rental assistance to low- and moderate-income families. Following the U.S. Department of Housing and Urban Development (HUD) guidelines, all PHAs must place permanent residency exclusions on people who are required to register on the sex offender registry for life or who have been convicted of producing methamphetamine in federally assisted housing. For other types of crimes, housing authorities exercise their individual discretion when developing their admissions criteria.

Washington, DC: U.S. Department of Justice • Office of Justice Programs • Bureau of Justice Assistance , 2022. 7p.

By  Julian Adler, Jethro Antoine, Kush R. Varshney

It is hard to know where we stand in the timeline of AI implementation in the criminal legal space. Part of the challenge is that the criminal legal “system” is in reality a multiverse of federal, state, and local jurisdictions.[1] More problematic still is the sheer ubiquity of AI and related technologies. “I think the most important thing people don't know is that tech is now working at mega scale,” observes Eric Schmidt, the former chairman and CEO of Google, cautioning—via the title of a recent Oscar-winning film—that tech is “everything everywhere all at once.”[2] What we do know is that AI is already in use in the criminal legal realm and, given the human propensity to reach for technological solutions to social problems, its further adoption is almost certainly unstoppable.[3] So how best to navigate the current moment of AI implementation? “We need a clear line in the sand: ‘these use-cases are OK, these are not,’” urges Sara Friedman of The Council of State Governments Justice Center. “The criminal legal system deprives people of their liberty. It shouldn’t be using AI to do this. There is a line when you are responsible for people’s lives; there are things you shouldn’t do.” 

New York: Center for Court Innovation, 2025. 9p.

By Lama Hassoun Ayoub, Adelle Fontanet, Suvi Hynynen Lambson, Noel Altaha, Desiree Fox, Ann Miller, Alisha Morrison, and Lina Villegas

  Decisions about what to do with people coming through the criminal court system can have long-lasting impacts on those individuals’ well-being and public safety more broadly. Will putting them in jail make things better or worse? Will offering them services help address some of the underlying issues that brought them to court in the first place? Given the complexity of these decisions, criminal justice practitioners have increasingly relied on risk assessments to help them systematically make these determinations. But assessments used in one context do not always translate well to other contexts. In particular, tribal courts—courts operated by Indian tribes under laws and procedures that the Tribe has enacted (Jones, 2000)—have found these assessments lacking and not always appropriate for their unique context and population. Because of this, there has been a desire among tribal practitioners to develop their own risk assessment tools or ensure appropriate validation of existing tools within their tribal contexts or with tribal populations. This report summarizes the first steps that the Center for Court Innovation and the Tribal Defenders of the Confederated Salish and Kootenai Tribes have taken to build knowledge and lay the groundwork for advancing risk-need assessment, data management, and technological capacity in tribal courts. Chapter 1 introduces the need for a tribal-specific assessment and provides a detailed description of the tribal-researcher partnership that was created to deepen our collective understanding around these neglected topics and building the capacities needed to embark on future projects, including validation of new or existing risk-need assessments. Chapter 2 summarizes the findings from a survey of tribal courts intended to understand existing assessment practices and technology needs--key information that would help serve as the foundation for any future work on this subject. Chapter 3 concludes with recommendations for next steps for the development, validation, and implementation of an appropriate risk assessment tool to be used in tribal courts.  

  New York: Center for Court Innovation, 2021. 37p.  

By Jordan Conan and Jeffrey Sharlein

Infants and toddlers (aged 0-3) are overrepresented in the child welfare system and are more likely than older children to be removed from their original caregiver and placed in out-of-home care. Implementation of our Strong Starts Court Initiative in a New York City courtroom led to a decrease in removal rate for program-eligible subject children from their original caregiver and was associated with an increase in children residing with that caregiver a year later. This program seeks to support families of children aged 0-3 through direct services, judicial and attorney education, and a more collaborative court process.

The findings from this study complement results from an earlier evaluation that showed a decrease in subsequent child welfare court episodes for Strong Starts participants. Together, these studies paint a picture of an intervention that improves outcomes at both the individual case and courtroom levels—creating more stability for children, improving family court outcomes for their respondent caregivers, and preserving attachment relationships.

New York: Center for Court Innovation, 29p.

By Julian Adler, Jethro Antoine, Laith Al-Saadoon 

There was but one passing reference to “core values” over the course of a recent U.S. Senate Judiciary hearing on artificial intelligence [AI] in criminal investigations and prosecutions.[1] This is typical. Even in spaces like the criminal legal system, where the specters of racial injustice and inhumanity loom so large, the technological sublimity of AI can be awfully distracting. People have long looked to technology to duck the hard problem of values. “[W]e have tended to believe that if we just had more information, we could make better policy,” observes University of Nevada’s Lynda Walsh in Scientists as Prophets. “But no matter how much data we could lay hands to—even if it were LaPlace’s Demon itself—values would still stand in the way.”[2] If anything is clear about advanced AI, it is that there is much we don’t know and even more that we can’t begin to predict. Consider that the “generative AI” we have witnessed over the past 18 months—AI which produces autonomous human-impersonating content—was largely unforeseen. It’s now being attributed to AI’s “emergent abilities.”[3] Across sectors, most observers acknowledge that AI is a game-changing technology. The Financial Industry Regulatory Authority is illustrative: using AI, it now processes “a peak volume of 600 billion transactions every day to detect potential abuses,” making the regulator “one of the largest data processors in the world.”[4] Tell  ingly, many of the people closest to the leading edges of AI development are sounding the loudest alarms about its capabilities. “Mitigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war,” warned the Center for AI Safety in 2023.[5] AI has the potential to supercharge, not mitigate, the uglier sides of humanity, much like, as one journalist puts it, “a fun-house-style… mirror magnifying biases and stripping out the context from which their information comes.”[6] Advanced AI is “not just another technology,” contends Nick Bostrom, Director of the Future of Humanity Institute at the University of Oxford. It is not “another tool that will add incrementally to human capabilities.”[7] Echoing countless dystopian projections of the future, the Center for AI Safety predicts AI systems will likely “become harder to control” than previous forms of technology; among other disquieting scenarios, these systems could “drift from their original goals” and “optimize flawed objectives.”[8] 

New York: Center for Court Innovation, 2024. 8p.

By Sruthi Naraharisetti

In the wake of several high-profile systemic failures of justice for Black people in the last decade, there have been widespread demands for change against pervasive racial inequities throughout the criminal legal system. These failures include the killings by law enforcement1 of Tamir Rice, Michael Brown, George Floyd, and Breonna Taylor; the excessive use of confinement and untimely deaths of Sandra Bland and Kalief Browder; and the determination of the wrongful convictions of the Central Park 5. While much of the public discourse has focused on how law enforcement, prosecutors, judges, and correctional officers perpetuate racial biases, far less attention has been on how public defense attorneys do, as well. Recently, scholars have started examining how race affects legal representation in public defense. The Sixth Amendment to the United States Constitution guarantees the right to counsel in criminal cases and the Supreme Court has held that the government will provide a lawyer if a person cannot afford it. Each decision point of a public defense lawyer’s assistance is vulnerable to racial bias and the potential for long-lasting harm to clients. Despite calls from the American Bar Association's Standards for the Defense Function4 for defense counsel to be proactive in detecting, investigating, and eliminating improper biases, with particular attention towards historically persistent biases like race, achieving this standard has proven difficult. Often operating with limited time, resources, and information, public defense attorneys must make critical decisions relating to bail requests, case investigations, social service needs, plea negotiations, and trial strategies, among others. Recognizing the pivotal role that public defense attorneys play in addressing racial disparities that their clients face, our exploratory study seeks to create a basis of understanding for how attorneys consider race when working with clients, conceptualize their role in addressing racial inequity, and experience the impact of their own racial/ethnic identities in the workplace. By shedding light on these issues, we hope to encourage public defense attorneys to reflect on and discuss how racial bias within their field perpetuates systemic harm, ultimately paving the way for improvement in racial equity across the field. 

New York: Center for Court Innovation, 2024. 14p.

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.