By Phil Bowen and Ellie Brown

• This briefing considers the three criminal justice Bills currently before Parliament— the Sentencing Bill; the Criminal Justice Bill; and the Victims and Prisoners’ Bill— and estimates the impact they will have on the demand placed on the prisons and on probation specifically. (In a separate briefing, we have looked specifically at how to strengthen provision for victims within the Victims and Prisoners’ Bill). We recognise our estimates include a good deal of guesswork but we have tried as far as possible to ground them in the existing Government figures in the public realm. • The backdrop of these new Bills is stark. From court backlogs, high probation service caseloads and an overcrowded and overflowing population in the adult male prisons, the adult criminal justice system is already struggling with demand. The Sentencing Bill itself was originally announced as part of a broader response to acute prison capacity issues, and included a new executive early release scheme. • Our assessment is that, taken together, the proposals to reduce demand on, and increase the capacity of, our prison system are unlikely to adequately deal with the acute pressures on the adult male prison estate in the medium term. Measures like a presumption against short sentences may delay the point at which demand outstrips supply but we estimate that, by December 2026, we are likely to reach a capacity crunch point again. • Turning to probation, a number of the measures to alleviate prison demand place do so by placing additional burdens on the probation service (we estimate 14,000 extra cases over the next four years). There is currently insufficient assurance that probation have the workforce and resources to take this on. We have concerns that the current proposal to place individuals onto Suspended Sentence Orders (SSOs) as an alternative to short prison sentences could backfire due to this lack of probation resourcing, and this may further undermine judicial and public confidence in community sentences more generally. • We suggest that the Ministry of Justice pay special attention to the recommendations of the Justice and Home Affairs Committee of the House of Lords report on community sentences that “Deferred sentencing can be used… to create incentives for low-level, repeat offenders to engage with more intensive rehabilitative activities.” We also recommend the Ministry of Justice extends existing alternatives to short prison sentences for women (both diversion away from the court system as well as problem-solving court alternatives for women), and ensure that the presumption against short sentences applies for people under 18 as well. • Finally, we have concerns about the measures in the Criminal Justice Bill to tackle rough sleeping and nuisance begging through new civil orders which, if breached, can result in criminal proceedings. There is a lack of credible evidence advanced for these proposals and the Government’s own impact assessment seems to ignore the considerable evidence that similar attempts to use these types of order have been ineffective, poorly implemented, disproportionately punish the most vulnerable and do so while draining resources away from evidence-based preventative measures. We are also concerned that the proposals are accompanied by no assessment of their impact on the courts or other parts of the criminal justice system

London: Centre for Justice Innovation 2023. 10p.

By Jose Pina-Sánchez, Julian V. Roberts and Jonathan Bild,

This Research Bulletin reports findings from the first comprehensive analysis of ‘sentence inflation’ in England and Wales. Unlike previous analyses, this one encompasses all years since 2005 and all offences.

In a previous research bulletin by the Sentencing Academy Pina-Sánchez et al. (2023) documented a significant increase in sentence severity in England and Wales over the last two decades. However, the extent to which this increase in sentence severity is due to a genuine process of ‘sentence inflation’ was unclear. The changing nature of crime might have affected the offence mix processed through our criminal courts. It is possible that the cases sentenced by the courts have become more serious over the period in question. To the extent that this has occurred it would constitute ‘explainable’ or natural inflation. If the cases sentenced are more serious, sentence severity should reflect this changing pattern.

The analysis relates two indices. One – the Imprisonment Index – measures sentence severity by combining the custody rate and Average Custodial Sentence Length (ACSL). The second index measures the seriousness of cases appearing for sentencing.

The Sentencing Academy’s submission to the Sentencing Review reported new analyses comparing trends of sentence severity and crime seriousness for three offence groups: sexual offences, drug offences, and criminal damage offences. In this report, we expand that preliminary analysis to include all major offence groups. This enables us to estimate the overall increase in sentence severity independent of changes in the mix of offences sentenced.

We estimate that since 2005, sentence severity has increased by 62%, while the seriousness of crimes processed through courts has increased by only 8%. This means that 87% of the increased sentence severity over the period was due to changes in sentencing practice, or as we term it, ‘sentence inflation’. Put differently, we estimate that sentencing in England and Wales is today 54% more punitive than in 2005. This is the first analysis to provide an estimate of the overall degree of sentence inflation in this or any other jurisdiction.

Our analysis reveals that sentence inflation has been far from uniform. Whereas no discernible pattern can be detected for drug offences, or public order offences, sentence severity for offences involving violence or weapons related offences has doubled since 2005. Sentence severity for fraud offences has tripled.

London: The Sentencing Academy, 2025. 7p.

By Kaan Yilmazturk, John Williams, Sarah Sandford, Seth Reynolds

Voluntary organisations working in and with the criminal justice system (CJS) face a complex funding landscape. This report explores what funding streams from statutory and philanthropic funders exist, and how they reach voluntary organisations (predominantly charities). We believe that a better understanding of these funding flows can inform changes to funder practice that will help criminal justice voluntary organisations best support some of the most vulnerable people in our society. NPC is a think tank and consultancy for the impact sector. We were commissioned by Lloyds Bank Foundation, with feedback from His Majesty’s Prison & Probation Service (HMPPS), AB Charitable Trust and Clinks, to research the funding landscape for voluntary organisations working in and around the CJS. We adopted a mixed methods approach to this research including: • quantitative data collection on a sample of 624 charities using Charity Commission and 360Giving data • interviews with sector stakeholders (nine charities, five funders, and three advocacy and research organisations respectively) • a survey completed by 55 voluntary organisations working in and around the CJS • case studies conducted on 10 voluntary organisations working with women and racially minoritised people. Funding flows into the criminal justice voluntary sector • Statutory funding makes up double the share of income for criminal justice charities than the wider voluntary sector. 57% of the total income of our sampled criminal justice charities comes from statutory sources, compared to just 26% for the wider voluntary sector. • Almost all statutory funding goes to larger charities. 94% of statutory funding goes to charities with annual incomes above £2m. Charities with annual incomes up to £500k received only 1.42% of statutory funding. o Trusts and foundations are the main source of income for ‘small’ charities (£100k-£500k annual income) and ‘medium-sized’ charities (£500k-£1m annual income) in our sample. o Micro-charities are underrepresented criminal justice funding flows. Of the 624 charities we sampled, 46% had annual incomes of less than £100k. For comparison, 80% of the wider voluntary sector is made up of these charities. • Only 3% of total income goes to criminal justice charities working with specific ethnic groups. Just 7% of sampled charities identified ‘people of a particular ethnic or racial origin’ as the beneficiary group they focus on. o ‘Children/young people’ is the beneficiary group that has received the highest proportion of income over the previous five years. o The most common beneficiary groups selected by charities in our sample are the ‘general public’, ‘children/young people’, ‘other defined groups’, ‘older people’, and ‘people with disabilities’. • Around three-quarters (71%) of criminal justice charities in our sample work on ‘offender support and rehabilitation’. The remaining 29% are classified as ‘prevention and safety’. Education/training’ is the most common subtheme, both in number of charities and the proportion of total income.

London:: lloyds Bank Foundation, 2025. 54p.

By The Justice Policy Institute

Despite the limited evidence base for its effectiveness and the significant burden it imposes on those under supervision, jurisdictions across the United States have expanded the use of electronic monitoring (EM) – technology that tracks and sometimes restricts a person’s movements – to supervise justicesystem-involved people released to the community. EM presents an appealing alternative to judges and prosecutors who want to limit jail or prison use but seek additional security to ensure public safety. This is true in Maryland, where the use of EM to supervise pretrial clients has grown significantly over the past decade and increased sharply following the onset of the COVID-19 pandemic, due in part to a one-time federal allocation of resources to fund supervision by private providers. However, despite this increase, there is very little information about the use of EM to supervise people awaiting trial in Maryland. We have no idea how many people have been monitored by the technology, its impact on their lives, or how effective it is with various populations. To inform these decisions, the Justice Policy Institute conducted a study on the use of EM to supervise pretrial clients in Maryland. This report explores the day-to-day realities of electronic monitoring, its effects on individuals under supervision, and offers recommendations to enhance service delivery based on proven best practices. Research on the efficacy of pretrial EM suggests that: • EM Does Not Reliably Reduce Failure to Appear (FTA) or Recidivism in Pretrial Populations. Although the use of EM has skyrocketed across the country, there is no clear and convincing evidence that EM effectively reduces FTA rates or recidivism for pretrial supervisees. This contrasts with other strategies like court notification and reminder systems, which have much stronger evidence of efficacy in reducing FTA rates. • Best Practices in Pretrial Release, Supervision, and EM Are Grounded in Validated Risk and Needs Assessment. The central elements that comprise an evidence-based approach to pretrial justice involve: • Expanding citation and diversion options; • Implementing a legal framework with a presumption of least restrictive release; • Ensuring due process in all hearings; • Grounding all decision-making in the use of a validated pretrial risk and needs assessment instrument (PRAI); and • Strictly limiting the use of pretrial detention and other restrictive measures, including electronic monitoring, to instances where an individual is at high risk of failing to appear or reoffending. EM Imposes a Significant Burden That Must Be Considered in Policy and Practice Decisions. EM surveillance presents serious challenges for individuals and severely limits their freedom. If EM is assigned to those at low risk of FTA or recidivism and drives net-widening in the corrections system, it is likely to cause unnecessary harm. However, when implemented and monitored effectively and humanely, it can be a useful strategy when used as a true alternative to jail and to increase the number of people released to their homes. 

Baltimore, MD: The Abell Foundation, 2025. 48p.

By William J. Sabol and Thaddeus L. Jjohnson

Although significant gaps remain, disparities between Black and White people continued to narrow at nearly every stage of the criminal justice process between 2016 and 2020. In some cases, the pace of the decline slowed; in others, the disparity gap closed entirely.

These trends extend patterns from 2000 to 2016 that were identified in CCJ's first report on correctional control by race and sex. Subsequent reports will explore trends in disparity among female populations and by ethnicity, assess trends in multiple states, and seek to identify what, if any, policy changes may have contributed to reductions in racial disparities.

Washington, DC: Council on Criminal Justice, 2022. 36p.

By Guyora Binder,and Ekow Yankah

The widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employed the widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police officer, not an “agent” of the felony. In these “proximate cause” jurisdictions, felony murder is far more often used to prosecute the (often Black) targets of police violence, than to prosecute culpable police.

Previous scholarship on prosecution of felons for killings by police criticized such proximate cause rules as departures from the “agency” rules required by precedent. But today’s proximate cause felony murder rules were enacted legislatively during the War on Crime and are thus immune to this traditional argument. The authors instead offer a racial justice critique of proximate cause felony murder rules as discriminatory in effect, and as unjustly shifting blame for reckless policing onto its victims. Noting racially disparate patterns of charging felony murder, and particularly in cases where police have killed, the authors call on legislatures to reimpose “agency” limits on felony murder as a prophylactic against discrimination. Finally, the authors widen this racial justice critique to encompass felony murder as a whole, urging legislatures to abolish felony murder wherever racially disparate patterns of charging can be demonstrated.

17 Harv. L. & Pol'y Rev. 157 (2022).

By The ACLU of Northern California

California was once the nation’s leader in public defense. Long before the U.S. Supreme Court ruled that the state must provide a lawyer to poor people charged with crimes, many counties in California already did so. Yet today, after years of neglect by the state, California is in the midst of a decades-long public defense crisis. A main cause is the reliance on “flat-fee” contracts with for-profit private attorneys and firms, where lawyers are paid a set amount for a limitless number of cases. These agreements lock attorneys and their clients in a financial conflict of interest where the lawyers’ fees are pitted against quality, zealous representation for those accused of crimes. Flat-fee systems have a well-documented history of providing worse representation and fueling mass incarceration and California has been called out, decade after decade, for allowing them to flourish.

This report examines the actual contracts California counties use and finds that they are woefully deficient in providing necessary resources to private contractors in order for them to adequately represent their clients, they uniformly fail to limit the number of cases attorneys can handle at once, and they provide little to not oversight or supervision for the lawyers who defend people when their lives are on the line. We synthesize the decades of research from within the state and around the country that show these systems should be eliminated and recommend that California finally do just that

San Francisco: ACLU of Northern California, 2025. 27p.

By David Spencer

New guidelines produced by the Sentencing Council for judges and magistrates to follow when sentencing offenders are both significant and controversial. The Imposition of community and custodial sentences guideline, due to come into effect on the 1st April 2025, sets out the considerations for judges and magistrates when sentencing an offender who has been found or pleaded guilty in the criminal courts. The Imposition of community and custodial sentences guideline instructs courts to request and consider, prior to sentencing, a pre-sentence report before forming an opinion about sentencing. Pre-sentence reports enable the court to have as much information as possible about the offender, including the risk they pose to the public, before passing sentence. Judges and magistrates are instructed that they need not order a pre-sentence report only if they consider it unnecessary. The new guideline requires that from the 1st April 2025 a presentence report will “normally be required” when sentencing offenders from one of a whole host of different and specified groups – while some groups are included, others are excluded. In particular, those within the cohort where a pre-sentence report will “normally be required” include individuals who are from an ethnic, faith or cultural minority group. While there is nothing specifically preventing a court requesting a pre-sentence report for other offenders, those who are white or male will not, unless they can fit themselves into one of the other groupings available, qualify under the criteria that “a pre-sentence report will normally be considered necessary”. The Lord Chancellor and Secretary of State for Justice, Rt Hon Shabana Mahmood MP, has made clear that she does not agree with the new Imposition guideline and, given the Sentencing Council have refused to withdraw it, she is willing to legislate to prevent “two-tier justice”. On the 28th March 2025 the Lord Chancellor said: “I have been clear in my view that these guidelines represent differential treatment, under which someone’s outcomes may be influenced by their race, culture or religion. This is unacceptable, and I formally set out my objections to this in a letter to the Sentencing Council last week. I am extremely disappointed by the Council’s response. All options are on the table and I will legislate if necessary.” The Lord Chancellor is right. There must be no two-tier justice – which the new guideline represents – and the government should legislate without delay to correct the Sentencing Council’s error. In conversation with the authors at Policy Exchange, the Rt Hon Jack Straw – the former Lord Chancellor and Secretary of State for Justice who created the Sentencing Council – has expressed his strong support for Rt Hon Shabana Mahmood MP. He said: “I strongly support the Lord Chancellor and Secretary of State for Justice, Shabana Mahmood MP, in the position she is taking relating to the new Imposition Guideline that the Sentencing Council have published. It is clear that the Government will need to take steps to correct the error. Given the crossparty support for this to be resolved, as shown by the position of the Shadow Secretary of State, Robert Jenrick, I hope that this can be done quickly.” Pre-sentence reports, typically written by a probation officer, are key to judges and magistrates deciding whether to sentence an offender to prison or to a non-custodial community order – particularly in borderline cases. As a result, deciding which defendants are to be included in the cohorts where a pre-sentence report will “normally be required”, and which don’t, can be key in deciding who goes to prison and who doesn’t. The Sentencing Council, which produced the new guideline, is an independent non-departmental body that is sponsored by the Ministry of Justice. The Labour government, under Prime Minister the Rt Hon Gordon Brown, created the Sentencing Council through section 118 of the Coroners and Justice Act 2009. The Council commenced operations in April 2010. The framework for the creation of sentencing guidelines evolved during the period of Labour in office between 1997 – 2010. Two bodies associated with the production of guidelines for the sentencing of offenders – the Sentencing Advisory Panel and Sentencing Guidelines Council – were created (and subsequently abolished). We outline the history of this period in chapter 2 of this report. The Sentencing Council is responsible for the preparation of sentencing guidelines for judges and magistrates to follow when sentencing offenders. Section 120 of the Coroners and Justice Act 2009 specifies that the Sentencing Council must prepare: “(a) sentencing guidelines about the discharge of a court’s duty under section 73 of the Sentencing Code (reduction in sentences for guilty pleas), and (b) sentencing guidelines about the application of any rule of law as to the totality of sentences” and may prepare sentencing guidelines about any other matter. We outline how the Sentencing Council is required to operate, under statute, in chapter 3 of this report. The membership of the Council is made up of both judicial and non-judicial members. Eight members of the Council are appointed by the Lord Chief Justice with the agreement of the Lord Chancellor (“judicial members”) and six members are appointed by the Lord Chancellor with the agreement of the Lord Chief Justice (“non-judicial members”). We outline the current membership of the Sentencing Council, how members (continued_

London: Policy Exchange, 2025. 43p.

Angela R. Riley & Sarah Glenn Thompson

The Double Jeopardy Clause guarantees no individual will be put in jeopardy twice for the same offense. But, pursuant to the dualsovereignty doctrine, multiple prosecutions for offenses stemming from the same conduct do not violate the Clause if the offenses charged arise under the laws of separate sovereigns, even if the laws are otherwise identical. The doctrine applies to tribal prosecutions, but its impact in Indian country is rarely studied. Such an inquiry is overdue, particularly as the scope of crimes potentially subject to dual tribal and federal prosecutions has broadened in recent years. This Article is the first to undertake a preliminary examination of the dual-sovereignty doctrine in the tribal–federal context and describe the complex interplay between the doctrine and the rest of the criminal law fabric in Indian country. Perhaps most significantly, it includes an original typology highlighting when a defendant may be subject to the doctrine, which sovereigns have the authority to prosecute, pursuant to what source of power each sovereign operates, and when and how the sequence of prosecutions matters, if at all. This leads to the Article’s central thesis: Indian tribes are separate sovereigns with inherent sovereignty, and, under current conditions, the dual-sovereignty doctrine plays a central role in ensuring safety in Indian country. The doctrine’s application in Indian country, however, creates unique complexities that may threaten tribal sovereignty and raise issues of unfairness for defendants. This Article offers numerous reforms—some highly ambitious and others more modest—to address these issues.

122 Colum. L. Rev. 1899 (2022).

By Erik Luna and Weldon Angelos

Marijuana laws in the United States vary by state, with some states allowing recreational use and others only allowing medical use. At the federal level, marijuana is still illegal, however, banned as a Schedule 1 substance under the Controlled Substance Act. The disconnect between state laws and federal laws is growing. As of December 2024, 39 states allow for medical use of marijuana and 24 states allow for recreational use, while a proposed change in federal rules would reschedule marijuana from Schedule 1 to Schedule 3. With the laws constantly evolving, and calls for legalization at the federal level growing louder and louder, what happens to the people still affected by the federal war on marijuana at the twilight of national prohibition? This white paper proposes clemency criteria for non-violent, federal marijuana convictions. It concludes by offering next steps for both executive and legislative action. With the President’s leadership, this Administration and Congress can assure that individuals haunted by marijuana arrests and convictions will finally have the clean slate they deserve.

Arizona State University Sandra Day O'Connor College of Law Paper No. 5199528, 43p.

By Hayli Millar, Megan Capp, Raelyn O’Hara

Bail law reform has become a highly politicized issue in Canada, reflecting polarizing demands to both lessen and increase restrictions in granting bail. While some scholarly literature assesses and critiques bail and remand law and processes, there is exceptionally limited gender-disaggregated data and research on adult women’s bail and remand experiences.1 When assessing women’s interactions with the criminal justice system (CJS), most scholarly research and government publications speak about women’s unique offence patterns and gendered pathways to criminalization and then jump to assessing women’s imprisonment experiences, largely excluding any consideration of women’s pre-trial and trial experiences. In 2023-2024, we gathered and assessed the available literature on women and bail and women and remand in Canada. We engaged with primary data in the form of government-published statistics, select case law and secondary research, reviewing more than 250 sources including some comparative international research. With this literature review, we present our key findings. The annotated bibliography below captures some of what we know about women’s bail and remand experiences within the Canadian context. Our contribution builds on the work we have previously done through the International Center for Criminal Law Reform and Criminal Justice Policy (ICCLR) on the rights of criminal justice-involved parents, especially women and their children. In brief, the 31 annotations focus attention on the urgent need for primary research on how seemingly neutral bail laws and practices uniquely impact women, especially due to intersecting identities such as race, parenthood, and other social factors. Our contribution is crucial and timely. In Canada, the national remand rate for women now surpasses that of men, with women making up over 75% of provincial and territorial custody admissions in 2022/2023. Our literature review and the annotations illustrate the importance of not only addressing the social determinants of women’s criminal justice involvement but also investing in more effective community-based alternatives for women, with a focus on mental health and substance use services. This is of particular importance when one considers the mainly non-violent offences that women commit and that many justiceinvolved women have complex, overlapping, and unmet social, economic, parenting, and physical and mental health needs, which are often compounded by trauma.

Vancouver, BC: International Centre for Criminal Law Reform and Criminal Justice Policy , 2025. 59p.

By Jared Trujillo

The relationship between incarceration and poverty is circular, cyclical, and symbiotic – poverty is a cause of incarceration, and incarceration causes poverty. In the 1970’s and 1990’s, New York led the country in enacting draconian sentencing laws that required judges to sentence children and adults to longer periods of incarceration, while also reducing the ability of incarcerated people to earn time off of their sentences for participation in rehabilitative, vocational, and educational programming. For the past half century, these harsh sentencing laws have been the primary driver of mass incarceration in New York. As a result, generations of families with criminal legal system involvement have been damned to multigenerational poverty. This is most profound in low-income communities, particularly low-income Black and brown communities.

Incarceration often deprives children, partners, and other family members of a breadwinner. Even when breadwinners are released from incarceration, incomes for former imprisoned people are between ten and twenty percent lower than those who were never imprisoned. Even incomes for those formerly incarcerated in juvenile detention facilities are lower than the incomes of those who were not. Further, the children of incarcerated parents suffer from psychological, emotional, and educational trauma. These children are six times more likely to be incarcerated in their lives than their peers who do not have incarcerated parents. Romantic partners and co-parents of incarcerated people often struggle with anxiety, stress, and financial precarity. Mass incarceration in New York continues to be a policy choice, and sentencing reform is an important tool to fight individual and multigenerational poverty.

This article ultimately presents five legislative proposals that would reduce mass incarceration in New York. Repealing the juvenile offender statute will prevent children as young as 13 years old from being given life sentences; the Youth Justice and Opportunities Act would expand, strengthen, and establish alternative sentencing structures for people under 26 years old that would limit the length of incarceration while also sparing young people from the scarlet mark of a permanent criminal conviction; the Eliminate Mandatory Minimums Act would unchain judges from the rigidity and cruelty of New York’s current sentencing paradigm, while requiring them to consider noncustodial sentences and alternatives to incarceration; the Second Look Act would enable those who are already sentenced to long periods of incarceration to apply for a reduced sentence; and the Earned Time Act would enable incarcerated people to earn time off of their sentence for participating in educational, rehabilitative, or vocational programming.

26 CUNY L. Rev. 225 (2023). 42p.

By David C. Baldus, George Woodworth, Catherine M. Grosso, Michael Laurence, Jeffrey A. Fagan, and Richard Newell

The Eighth Amendment’s “narrowing” requirement for capital punishment eligibility has challenged states since it was recognized in Furman v. Georgia in 1972. This article examines whether California’s death penalty scheme complies with this requirement by empirically analyzing 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002. Using a 1,900-case sample, we examine whether California’s death penalty statute fails to comply with the Eighth Amendment’s narrowing test. Our findings support two conclusions. First, the death-eligibility rate among California homicide cases is the highest in the nation during that period and in the ensuing decade. We find that 95 percent of all first-degree murder convictions and 59 percent of all second-degree murder and voluntary manslaughter convictions were death eligible under California’s 2008 statute. Second, a death sentence is imposed in only a small fraction of the death-eligible cases. The California death sentencing rate of 4.3 percent among all death-eligible cases is among the lowest in the nation and over two-thirds lower than the death-sentencing rate in pre-Furman Georgia.

Journal of Empirical Legal Studies Volume 16, Issue 4, 693–730, December 2019

By Roseanna Sommers and Kate Weisburd

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using "explicit," "clear," and "unambiguous" statements - or, as some dissenting judges have lamented, using "legally magic" words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. Statements that courts have deemed too ambiguous (e.g., "I'll be honest with you, I'm scared to say anything without talking to a lawyer.") are perceived by a large majority of survey respondents as invoking the right to counsel. With respect to the right to silence, the survey results suggest that people overwhelmingly believe that remaining silent for several hours constitutes invocation of the right to silence and expect that their silence cannot be used against them - including in situations where, in fact, it can be. Across an array of fact patterns and demographic subgroups, respondents consistently set the bar for invoking Fifth Amendment rights lower than courts.

The stark disconnect between what the public takes as sufficient to invoke these rights and what courts hold as sufficient suggests that the rights to counsel and silence are largely inaccessible to ordinary people. Notably, standard Miranda warnings do not include instructions regarding how one must speak in order to invoke those rights. We conclude that when courts set the threshold for invocation above where the average citizen believes it to be, they effectively place key procedural rights out of reach.

119 Northwestern University Law Review 637 (2024), 52p.

By Adam M. Gershowitz  

Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct. But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is in the hands of police, sheriffs, crime laboratories, and other government agencies. Because the criminal justice “system” is riddled with communication breakdowns, prosecutors are sometimes unaware of Brady evidence that they were obligated to disclose. The breadth of the Brady doctrine and the dysfunction of the criminal justice system do not make Brady violations acceptable or harmless. To the contrary, Brady errors are serious violations of a defendant’s constitutional rights. To reduce future violations, however, we cannot simply condemn prosecutors for intentional misconduct. Instead, it is important to understand why accidental Brady violations occur. Drawing on nearly two-dozen recent cases, this article builds a typology of situations where accidental Brady violations occur, and it sets forth solutions for reducing accidental violations in the future.   

  12 Tex. A&M L. Rev. 533 (2025)., 59p.

By Jennifer Mason McAward

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that bad faith permeates this area of constitutional non-compliance, a substantial minority of Brady cases stem from good faith errors and suppression by law enforcement officers. Most Brady violations occur in a small number of states, and most often state courts provide relief. And while there is not quantitative evidence of an epidemic, the individual effects of Brady violations are severe. On average, a defendant whose Brady rights are violated spends more time in prison than a defendant who is later exonerated. When government officials routinely violate a clearly established constitutional right like Brady with such negative consequences, the time is ripe for evidence-based interventions to enhance constitutional compliance. The insights from this study point to a new range of strategies. For example, focusing on preventing good faith Brady errors, especially in non-homicide cases, may be substantially more productive than focusing on punishing bad faith Brady violationsa tactic that has proven to be frustratingly unsuccessful. Relatedly, working with law enforcement officers to better identify and submit potential Brady evidence to prosecutors may create a smoother pipeline for the eventual production of material evidence to defendants. Ultimately, by providing unprecedented detail about historical Brady violations, this study will serve the cause of future overall Brady compliance.

Vanderbilt Law Review (forthcoming April 2025), 67p.

By Elena A. Baylis

In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. But while the United States does not have a law concerning looted cultural objects taken from formerly colonized peoples overseas, it does have a statute governing the repatriation of Native American cultural items and human remains. The Native American Graves Protection and Repatriation Act requires museums to return designated Native American cultural objects to their communities-even if they were obtained before the law went into effect. This statute offers a valuable case study for repatriating cultural objects taken from other formerly colonized peoples.

, 124 Columbia Law Review Forum 183 (2024), 39p.

By Jonathan Gu

Between 2016 and 2023, the number of young people aged 10 to 13 years found guilty of an offence fell markedly. This paper examines if this decline and other trends can be explained by the 2016 High Court of Australia decision (RP v R (‘RP’)), which clarified the application of doli incapax. We examine trends in: (1) the volume of court appearances for 10-13 year olds, (2) whether these court appearances resulted in a proven offence, (3) for proven matters, the severity of the penalty, (4) the extent to which prosecutors withdrew all charges, and (5) the extent of guilty pleas. METHOD We analyse NSW and national data on outcomes from Children’s Court cases involving 10-17 year olds, finalised between 2010 and 2023. Using these data, we investigate whether and why the five outcomes have changed over time for 10-13 year olds. Possibilities examined include: the RP decision; trends in the nature of the offence children have been accused of; the increased use of specialist Magistrates in the NSW Children’s Court; and demographics of defendants. RESULTS There is little evidence to suggest that the RP decision had any impact on the volume of court appearances involving a 10-13 year old. However, among 10-13 year olds that NSW Police proceeded against to court, there has been a dramatic decline in the proportion with a proven court outcome; the percent proven fell from 76% in the 2015-16 financial year to 16% in 2022- 23, which temporally coincides with the RP decision. Among the proven matters, the RP decision had no clear impact on the penalty imposed. The decrease in the proportion of proven charges cannot be explained by changes in the types of offences committed by 10-13 year olds (i.e., they are not increasingly committing types of crimes that are harder to prosecute), nor by specialist Magistrates, or the demographic characteristics of individuals proceeded against. The drop in proven matters is, however, linked with prosecutors increasingly withdrawing all charges (growing from 12% to 53% from 2015-16 to 2022-23) and 10-13 year olds pleading guilty less frequently (falling from 54% to 14% from 2015-16 to 2022-23). Similar shifts occurred in Victoria and South Australia. CONCLUSION By stipulating what is required to rebut doli incapax, the 2016 High Court of Australia’s decision RP v R likely reduced the number of young people aged 10-13 found guilty of a criminal offence. 

(Crime and Justice Bulletin No. 268). 

Sydney: NSW Bureau of Crime Statistics and Research 2025. 38p.

By Anna Skeels

This report is the first part of a two-part series based on research conducted by Dr Alicia Heys, a Senior Lecturer in Modern Slavery at the Wilberforce Institute at the University of Hull and – on behalf of it – a Co-Investigator of the Modern Slavery and Human Rights Policy and Evidence Centre (PEC) at the University of Oxford, as part of the research strand focused on the effectiveness of legal enforcement measures. The first part focuses on barriers to successful modern slavery prosecutions, whilst the second part focuses on financial investigations as a method of pursuing modern slavery offenders. Both reports, when published, will be available on the PEC website at modernslaverypec.org/resources/prosecutions-modern-slavery-act.  The Modern Slavery Act (MSA) 2015 was introduced to strengthen the UK’s response to human trafficking and modern slavery, providing comprehensive tools to identify offenders, secure convictions, and protect victims.1 However, while the number of victims identified and referred to the National Referral Mechanism2 has continued to increase, prosecution and conviction rates under the Act remain notably low, raising questions about barriers to its implementation. This report examines some of these barriers, drawing on insights from practitioners directly involved in modern slavery cases, as well as academic and grey literature on the subject. The original research informing this report aimed to explore how financial investigations could improve prosecution and conviction rates under the Modern Slavery Act. Fifteen in-depth interviews were conducted with specialists including seven police officers based in English forces, three lawyers, three financial experts, one international cyber-crime expert, and one NGO representative with lived experience of modern slavery. All interviews were anonymised, transcribed, and analysed thematically. Given the breadth and depth of the data collected, the key findings are presented in a two-part series. The first part, summarised in this report, focuses on identifying and analysing key barriers to successful prosecutions and convictions under the Modern Slavery Act. By integrating practitioner perspectives with academic and grey literature, this report aims to inform efforts to strengthen the enforcement of modern slavery legislation in the UK.3 The second part will build on the same interview data, but with a specific focus on financial investigations as a method of pursuing modern slavery offenders.4 

Oxford, UK: Modern Slavery and Human Rights Policy and Evidence Centre (PEC) at the University of Oxford , 2025. 41p.

By Corwin,Edward S

L^he history of American liberty is far more complicated than most people would at first blush have imagined. Indeed, until Professor Corwin, out of a lifetime of study devoted to American public law, distilled into a volume of modest compass the essential ingredients of American liberty, there was, to my knowledge, no one book to which the citizen might turn to learn its fascinating story. The story starts, as do so many of the great things of life, with the Greeks and the Romans. The wisdom of the political philosophers, ancient and modem, in their search for the foundations of human liberty is presented in its relation to the crucial events of English and American political experience, particularly such great documents as Magna Carta, the Declaration of Independence, the federal Constitution and our State constitutions.

LOUISIANA STATE UNIVERSITY PRESS, 1948, 222p.