By Lars Trautman

The success or failure of our criminal justice system hinges in large part on the quality and capabilities of the prosecutors operating within it. If they wield the powers of their office with precision, restraint and competence, they have the potential to right wrongs and even redress inequitable outcomes created elsewhere in the system. On the other hand, if they are unable to live up to the burdens of the office, incarcerated populations can swell and undeserving individuals can be unnecessarily tarred with a criminal record. Increasing prosecutorial capacity and effectiveness should therefore be of paramount concern, yet all too often, prosecutors must labor under far from ideal conditions. A typical prosecutor operates under a crushing caseload and in an information vacuum. She is expected to find effective and equitable justice for hundreds or thousands of cases a year, despite having little-to-no information on which prosecutorial recommendations have proven successful in the past or how her peers have treated similarly situated defendants. Likewise, her bosses may not only share her ignorance on prosecutorial performance and outcomes but must also consider how the average prosecution fits in with larger issues like community relations and how the office should respond to structural inequities such as unequal arrest rates. These demands and pressures can be aggravated in many prosecutor’s offices by a continued reliance on paper files and gut-level decisions rather than digital information and statistically sound policies. Often, prosecutorial offices have neglected to develop strong data due to a lack of resources and buy-in from prosecutors. Whereas the costs of new data investments are easily tallied, the benefits can be more difficult to identify and measure. The problem is also exacerbated by the healthy dose of skepticism with which many prosecutors view data. One study, for example, found that line prosecutors—the individuals actually prosecuting cases—overwhelmingly remain wary of data. They believe that it will either highlight issues over which they have no control, or worse, be taken out of context to pillory them and make their jobs even harder. Given the incredible power of prosecutors and the plethora of problems afflicting our justice system, this reticence is a shortcoming we cannot afford to ignore. Accordingly, the present study will address how data can be harnessed as a tool to reveal the extent of, and then help mitigate, many of the challenges facing prosecutors in their pursuit of justice. It will highlight promising existing programs and strategies as well as suggest how these efforts could be expanded in the future for even greater gains. It will conclude with a short argument in favor of additional data investment.

R STREET POLICY STUDY NO. 169 April 2019

Washington, DC: R Street, 2019. 7p.

By Emily Mooney and Jesse Kelley

Each year, hundreds of thousands of youth are referred to the justice system and placed on probation, which makes probation the most common sanction for young people. Yet despite its prevalence as a response to youth misbehavior, in its current form, probation is often an ineffective long-term intervention. For example, approximately 63 percent of Texas youth adjudicated delinquent and sentenced to probation in 2013 were rearrested within three years and 28 percent were re-adjudicated or convicted of a new offense within that same period. Similarly, in one study of Nebraska’s youth probation system, in the period between 2010 and 2015, one in four youth who successfully completed probation was adjudicated for a new offense within the following year. These trends are explained, in part, by the juvenile justice system’s failure to completely embrace the principles of adolescent development. Developmental research suggests that it is normal for young adults to make poor decisions during this period in life. Experimentation and risk-taking are often symptoms of a struggle to regulate one’s own emotions, anticipate the consequences of future actions or an attempt to impress one’s peers. In most cases, research also shows that adolescents will grow out of these habits on their own as they age. Thus, in many cases, youth currently placed on probation may do just as well or benefit more from local community-based interventions, such as diversion, or from dismissal from the justice system altogether. In contrast, formal justice interventions, such as probation or incarceration, may actually serve to increase the likelihood of future crime. For example, a 2013 report by the National Research Council notes: “[U] nduly harsh interventions and negative interactions between youth and justice system officials can undermine respect for the law and legal authority and reinforce a deviant identity and social disaffection.” In other cases, youth are appropriately served by youth probation but nonsensical probation practices, such as long lists of conditions or the use of incarceration as a response to technical violations, set them up for failure. Given the fact that youth are constantly developing, probation plans and services should be individualized and dynamic rather than stagnant. Further, incarcerating youth for actions that pose no substantial threat to public safety is a waste of time and resources, and jeopardizes the likelihood of future success. There have been some positive developments. Over the last decade, the total number of youth on probation has substantially declined. In 2008, approximately 540,000 youth cases led to the sanction of probation. By 2016, that number had decreased to approximately 282,000. And, in states like Virginia, the average daily youth probation population has decreased by more than half. While these trends, along with the decreasing number of youth behind bars overall, suggest positive movement away from “lock ‘em up” policies of old, there is more work to be done if we are to better serve our youth and their communities. Accordingly, the time has come for a new vision for youth probation. To achieve such a vision, states and localities must return to the core aims of juvenile justice involvement: namely, improved public safety and youth rehabilitation. They must also reassess the current paradigm regarding what probation looks like and whom it should serve. Accordingly, the present study provides an overview of the current state of youth probation and articulates a new paradigm, wherein localities limit government intervention, promote the role of families and—by better reflecting the principles found in developmental research—improve public safety; and finally, it presents a practical guide for how jurisdictions can improve their youth probation systems today.

R STREET POLICY STUDY NO. 168 April 2019

Washington, DC: R Street, 2019. 9p.

By Jesse Kelley

Juvenile public defenders represent youth charged with crimes through the juvenile court system. Each state has a process to provide access to counsel for allegedly delinquent youth who are unable to pay for a hired private defense attorney. Indigent defense provides juveniles with the constitutionally mandated access to counsel, even if they cannot afford it. Court-appointed lawyers who work on delinquency matters in the juvenile justice field can be labeled as juvenile public defenders, indigent criminal defense attorneys, or contract or “panel” attorneys. While often interchanged, the key difference is that public defenders are part of an organized, professional office while contract attorneys are independent practitioners and usually have their own private firm. Enormous responsibility falls on each of these attorneys to diligently represent their young clients, but often these professionals are not adequately supported by the state. Supporting juvenile public defenders is necessary to ensure that justice and equitable outcomes are experienced by all young people in the juvenile court system. This policy study intends to highlight the many perils currently facing juvenile public defenders, how those disadvantages impact youth, what obstacles COVID-19 added and what solutions states can undertake to ensure that young people facing delinquency have the best resources available.

R STREET SHORTS NO. 95 October 2020, 5p.

By Western Australia Corruption and Crime Commission

In the early hours of 12 October 2023, a 16-year-old First Nation's boy, Cleveland Keith Dodd - died in custody. He was found hanging from a damaged vent in the ceiling of his cell at Unit 18 in Casuarina Prison. Cleveland's death comes some 32 years after the conclusion of the Royal Commission into Aboriginal Deaths in Custody. The painful truth is that he is by no means the first Indigenous Australian to have died in custody in Western Australia since that time. The profound tragedy is that he is the first child. While the cause and manner of Cleveland's death have not yet been determined by the Coroner, the Commission is satisfied within its jurisdiction that Cleveland fixed a torn piece of t-shirt material to a damaged ceiling vent, the ligature point from which he was later found hanging. At 01:35 on 12 October 2023, Cleveland used his cell call to contact a Youth Custodial Officer to tell him of his intention to hang himself -shortly before doing so. Cleveland's final threat of self-harm was one of at least 17 threats of self-harm or self-harm attempts made by the young people detainees at Unit 18 in the 24 hours leading up to it. Why Cleveland was driven to self-harm is not an inquiry within the jurisdiction of the Commission. The question of how he was able to attempt to take his own life in a tightly controlled space - is. There are several bodies vested with statutory power to investigate the circumstances surrounding the death of a child in custody. That is for good reason. The death of a child in such circumstances deeply affects not only their family but the Western Australian community as a whole. Broader systemic and cultural issues within the Department of Justice (DOJ) may have contributed to this outcome. In his May 2023 Inspection of Banksia Hill Detention Centre and Unit 18, the Inspector of Custodial Services Mr Eamon Ryan found young people, staff, and a physical environment in acute crisis. In the almost 18 months leading up to his inspection, the rates of self-harm and attempted suicide among young people in custody were unprecedently high. Staffing was in terminal decline. These wider considerations may form part of the Coronial inquest into Cleveland's death or the inquiries of the other authorities. The Commission has a narrow but important jurisdiction. Until 2014 the Commission also had jurisdiction in respect of public officers who engage in conduct that constitutes or involves a breach of the trust placed in the public officer by reason of his or her office of employment as a public officer and could constitute a disciplinary offence providing reasonable grounds for termination of employment. In 2014 Parliament removed that jurisdiction from the Commission and vested it in the Public Sector Commission. Therefore, acts of neglect or misfeasance which do not disclose a possible offence of 2 or more years' imprisonment are outside the Commission's jurisdiction. The Commission is empowered to investigate serious misconduct. Serious misconduct is defined in the Corruption, Crime and Misconduct Act 2003 (CCM Act) s 4. To constitute serious misconduct under s 4(a) or (b), a public officer must have acted or failed to act corruptly. Corruption has been held to include conduct that involves moral impropriety in public administration, or some perversion of the proper performance of the duties of office.1 There was no evidence giving rise to a reasonable suspicion that any public officer had engaged in conduct of that kind. As a result, the Commission concentrated on investigating whether any public officer may have engaged in serious misconduct under s 4(c), by committing an offence punishable by 2 or more years' imprisonment while acting or purporting to act in his or her official capacity. The scope of the Commission's investigation was limited to forming opinions asto whether any public officer committed an offence punishable by 2 or more years' imprisonment. The purpose of the investigation was to determine whether any public officers engaged in conduct of that kind in the execution of their duties at Unit 18 at Casuarina Prison from 10 to 12 October 2023. On 12 October 2023, the DOJ notified the Commission of Cleveland's critical incident.2 After assessing the matter, on 20 October 2023 the Commission formed Operation Lowestoft to investigate. The same day, the Commission took the unusual step of making a public announcement in relation to the investigation, given the extensive reporting, public interest and the seriousness of the incident. On 2 November 2023, a member of Cleveland's family made a report directly to the Commission.3 The Commission's inquiry focused on the actions of the five DOJ Youth Custodial Officers (YCOs) and one nurse contracted to the DOJ who worked the night shift during which Cleveland self-harmed. A significant amount of CCTV footage and a large volume of records were obtained. Interviews with witnesses were conducted. The DOJ fully cooperated with the Commission's investigation. All five YCOs and the Nurse were examined under oath or affirmation between 29 January and 2 February 2023. Between 5 and 8 February 2023, the Unit Manager of the day shift at Unit 18 on 11 October 2023, the Superintendent of Unit 18, Mr Douglas Coyne, and the Deputy Commissioner for Women, Ms Christine Ginbey, who was at the time the Deputy Commissioner for Women and Young People, were examined under oath or affirmation. Having carefully weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, the Commissioner did not determine that it was in the public interest to open those examinations to the public. Nonetheless, the Commission considered that there was a strong public interest in the Commission investigating the persons present at Unit 18 on 11 and 12 October 2023, and those who supervised them. Under their watch - a boy died. The Commission's mandate was to investigate and expose any possible serious misconduct by those who may have played a part in it. The criminal offences that the Commission's investigation centred around were those of the falsification of a record by a public officer contrary to the Criminal Code s 85, an act or omission causing bodily harm or danger under the Criminal Code s 304 (arising by way of a breach of the duty to provide the necessaries of life under the Criminal Code s 262) and failing to protect a child from harm pursuant to the Children and Community Services Act 2004 (CCS Act) s 101. The Commission analysed the information gathered by the investigation. The Commission assessed the evidence of all the witnesses who gave evidence. In the Commission's opinion each of the witnesses was genuinely affected by Cleveland's death. There were undoubtedly breaches of DOJ procedures and policies that occurred on the night of Cleveland's self-harm. There may have been conduct engaged in that constitutes misfeasance or misconduct of another kind described in the CCM Act s 4(d). That is a matter about which the Commission has no jurisdiction to form an opinion. While Cleveland's death is plainly a devastating outcome of the events that occurred between 10 and 12 October 2023, in the Commission's assessment, there is no evidence to suggest that the public officers involved committed an offence punishable by 2 or more years' imprisonment in the execution of their duties at Unit 18 during that time. Consequently, the Commission has formed no opinions of serious misconduct.   

Northbridge, WA: The Commission, 2024. 70p.

By Jack Cattell, Sarah Webb, Ammeline Wang, Kasra Aghajani, Sophia Hasapopoulos, and Lorraine Khan

This evaluation has found that the Youth Justice Reform Programme (YJRP) foundations have been laid, and better outcomes were reported, particularly for the workforce. The Youth Custody Service (YCS) can build on these to sustain and improve the changes so it can implement the individualised approach fully. 2.1 Background Charlie Taylor’s (2016) review of the youth justice system found several shortcomings in the youth custody system, including poor safety, missed education opportunities, insufficient staff skills, and disjointed resettlement pathways. The government’s response was to launch a series of initiatives jointly known as the YJRP. The YJRP covered custody and community management of children who offend. This evaluation focused on custody changes. The YJRP aimed to (i) deliver an individualised approach through an integrated framework of care (ii) create a larger, more resilient, and more stable workforce with specialist skills and (iii) provide strong leadership and governance to support a rehabilitation culture. This report responds to the first two aims. The programme was composed of four work strands: (i) Education and Sports (ii) Behaviour Management (iii) Workforce and (iv) Leadership and Culture. Under each of those four work strands, sets of work packages were implemented to achieve the programme’s aims: education and sports provision in the secure estate; behaviour management packages to make child custody safer; workforce packages for improved recruitment and training; and leadership and culture packages to increase the capacity of the YCS.

2.2 Evaluation approach The evaluation of the YJRP ran from spring 2020 to spring 2022. It aimed to i) provide evidence of the implementation and delivery of the YJRP and ii) assess the programme’s impact on key outcomes of interest (such as assaults on the estate and increase in the workforce) robustly. The evaluation consisted of three strands: a scoping study, a process evaluation, and an impact evaluation. The Young Offender Institutions (YOIs) within the evaluation’s scope were Feltham A, Cookham Wood, Parc, Werrington, and Wetherby.1 The secure schools remain part of the overall YJRP, though the first secure school (Oasis Restore) will be evaluated separately. The scoping study identified the baseline position of each YOI, such as current population size, composition, staffing level, and when the YJRP work packages were or were to be implemented. The process evaluation implemented a theory of change2 approach to understand how operational and contextual factors contributed to child and workforce outcomes. Data were collected from staff and children in the YOIs through semi-structured interviews and an online survey. The impact evaluation estimated the YJRP’s impact on the number of staff and their time in post and the number of assaults in the YOIs using an interrupted time series analysis where longitudinal data from before the intervention was used to construct a counterfactual. Given the limited availability of a strong counterfactual, the conclusions are suggestive rather than definitive. A children’s survey was designed to measure their attitudes to relevant elements of the YJRP. 2.3 Evaluation key findings Building a professional, specialist workforce The aim of the YJRP’s Workforce work strand was to (i) create a bigger, more resilient, and more stable workforce (ii) employ more staff with specialist skills and (iii) create a culture change for staff who want to work with children with a focus on rehabilitation. Creating a bigger, more resilient, and more stable workforce Staffing levels increased at every YOI that participated in the study. Further, the proportion of staff who remained in their post for at least 12 months increased after implementing the reforms. However, changes are still required to recruitment strategies and the workforce and management culture to allow for a more resilient and more stable workforce. 

Employing staff with specialist skills More staff were trained and completed training on the delivery of CuSP3 and the Framework for Integrated Care (SECURE STAIRS)4 under the Unitas training and foundation degree. The findings also suggested a need for more specific training on the core elements of the YJRP and professional development, as well as time for staff, such as study days, to complete relevant training. Culture change towards a rehabilitative environment The YJRP was found to have changed the culture of YOIs and STCs to a more rehabilitative environment. Staff members reported taking a more rehabilitative approach to working with children, which contributed to a better relationship between staff and children. The shift to a rehabilitative approach was also reflected in the responses gathered from children, who reported feeling safe, being treated fairly by staff members, and having their needs better understood by staff. Delivering an individualised approach Central to the YJRP was an intention to offer support that is closely aligned with the needs of individual children.5 The individualised approach has education and wellbeing at its heart and is delivered principally through the Behaviour Management and the Education and Sports work strands. Behaviour Management Results were inconclusive about the impact of the YJRP on child-on-child and child-on staff assault rates within the YOIs, due to COVID masking any impact of the programme. Progress to make sites safer, however, was attained through other means, such as staff support for children, making them feel safer and as though they were being treated fairly. This approach helped children learn from their mistakes and de-escalate challenging situations. Staff and children also reported that the development of consistent relationships facilitated good discipline. The Framework for Integrated Care (SECURE STAIRS) and CuSP generally supported positive outcomes for some children, such as improved and supportive relationships with staff, feelings of safety, and confidence when leaving the establishment. However, children’s feedback in the survey suggested case workers and CuSP did not benefit all children, particularly those with ethnic minority backgrounds. Education and Sports The provision of education was hindered by the COVID pandemic, with a lack of face-to face education. Nevertheless, most children regularly attended the face-to-face classes available and reported a good choice of courses. Many children also reported being involved in various sports and physical activities. Further improvements could be made in (i) skill-building for careers (ii) educational level of courses and (iii) staff training to deliver all courses sufficiently.       

London: UK Ministry of Justice, 2024. 76p.

By Colleen Sbeglia, Cortney Simmons, Grace Icenogle, Marsha Levick, Monica Peniche, Jordan Beardslee, Elizabeth Cauffman

In Miller v. Alabama (2012), the Supreme Court abolished mandatory juvenile life without parole (JLWOP) sentences and subsequently decided that the ruling applied retroactively (Montgomery v. Louisiana, 2016), effectively rendering thousands of inmates eligible for resentencing and potential release from prison. In its decisions, the Court cited developmental science, noting that youth, by virtue of their transient immaturity, are less culpable and more amenable to rehabilitation relative to their adult counterparts. Specifically, the Court notes adolescents' propensity for impulsive action, sensitivity to social influence, and difficulty understanding long-term consequences. Even so, these rulings raised concerns regarding the consequences of releasing prisoners who had committed heinous crimes as juveniles. Several years after the Court's decision, preliminary data are now available to shed light on rates of recidivism among those released. The current paper comprises three goals. First, we discuss the science of adolescent development and how it intersects with legal practice, contextualizing the Court's decision. Second, we present recidivism data from a sample of individuals formerly sentenced to JLWOP in Pennsylvania who were resentenced and released under Miller and Montgomery (N = 287). Results indicate that 15 individuals received new criminal charges up to 7 years postrelease (5.2%), the majority of which were nonviolent offenses. This low rate of recidivism is consistent with the developmental science documenting compromised decision-making during the adolescent years, followed by desistance from criminal behavior in adulthood. Lastly, we discuss the importance of interdisciplinary collaborations between researchers and legal practitioners, as well as critical future avenues of research in this area.

Journal of Research on Adolescence, 00, 1–11. 2024.  

By Ashley Nellis and Devyn Brown

A wave of reforms since 2010 has changed the trajectory of punishment for young people by substantially limiting the use of juvenile life without parole (JLWOP) sentences. At the sentence’s height of prominence in 2012, more than 2,900 people were serving JLWOP, which provided no avenue for review or release. Since reforms began, most sentence recipients have at least been afforded meaningful opportunity for a parole or sentence review. More than 1,000 have come home. This progress is remarkable, yet thousands more who have been sentenced to similarly extreme punishments as youth have not been awarded the same opportunity. Our analysis shows that in 2020, prisons held over 8,600 people sentenced for crimes committed when they were under 18 who were serving either life with the possibility of parole (LWP) or “virtual” life sentences of 50 years or longer. This brief argues for extending the sentencing relief available in JLWOP cases to those serving other forms of life imprisonment for crimes committed in their youth. In addition, The Sentencing Project has estimated that nearly two in five people sentenced to life without parole (LWOP) were 25 or younger at the time of their crime. These emerging adults, too, deserve a meaningful opportunity for a second look because their developmental similarities with younger people reduce their culpability in criminal conduct. The evidence provided in this brief supports bold reforms for youth and emerging adults sentenced to extreme punishments.

Washington, DC: The Sentencing Project, 2024. 10p.