By Sheri Lynn Johnson

With respect to African Americans, the history of racial discrimination in the imposition of the death penalty is well-known, and the persistence of racial disparities in the modern era of capital punishment is well-documented. In contrast, the influence of Latino ethnicity on the imposition of the death penalty has been studied very little. A review of the limited literature reveals evidence of discrimination against Latinos. Archival studies generally find ethnicity-of-victim discrimination, and some of those studies find ethnicity-of-defendant discrimination disadvantaging Latino defendants; these findings parallel the findings of the much more robust literature investigating bias against African American defendants and victims. The controlled experimental studies generally show both ethnicity-of-defendant and ethnicity-of-victim discrimination disadvantaging Latinos. Related literature investigating stereotypes, animosity, and discrimination in other criminal justice decisions further suggests the likelihood of ethnicity discrimination in the imposition of capital punishment, as well as the need for further research.

Annual Review of Law and Social Science Vol. 16:421-431 2020.

By Paul Kaplan

This review focuses on empirical research about contemporary challenges to the death penalty in the United States. Challenges are factors that obstruct capital punishment, including legal or political restrictions; elimination at the federal or state level; or the hindrance of the process at its operational stages of charging, adjudicating, appeals, clemency, or executions. By the best-known measures, the death penalty has been in decline in the United States since the turn of the century. Lethal injection errors—“botches”—are arguably the most important current challenge to the institution. Wrongful capital conviction has made capital punishment less tolerable to the general public. Mitigation remains an important challenge to the death penalty. This review emphasizes botches, innocence, and mitigation but also touches on disparate impact, failure-to-deliver a social benefit, and cost. Along the way, this review proposes a framework for considering challenges as they occur on two continua of impact, a micro/meso/macro axis and a narrow/wide axis.

ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE Vol. 20:353-368, 2024.

By Carol S. Steiker, and Jordan M. Steiker

This review addresses four key issues in the modern (post-1976) era of capital punishment in the United States. First, why has the United States retained the death penalty when all its peer countries (all other developed Western democracies) have abolished it? Second, how should we understand the role of race in shaping the distinctive path of capital punishment in the United States, given our country's history of race-based slavery and slavery's intractable legacy of discrimination? Third, what is the significance of the sudden and profound withering of the practice of capital punishment in the past two decades? And, finally, what would abolition of the death penalty in the United States (should it ever occur) mean for the larger criminal justice system?

Annual Review of Criminology, Vol. 3 (2020), pp. 299–315

By Jeffrey R. Baker

This article is a study of Reinhold Niebuhr’s Christian Realism, a progressive school of social ethics rooted in Christian theology, and its critical evaluation of American mass incarceration. Christian Realism seeks justice in society under law, formed by love as its fundamental organizing principle. It acknowledges a world with endemic structural injustices and social immorality, but it finds temperate hope in the human potential for love, redemption, and generosity. Christian Realism reckons that any institution committed to justice must inevitably compromise to achieve incremental progress toward good. But it projects steady, hopeful progress toward justice, even as systems calibrate themselves to stave off the worse effects of human nature. On this tricky ground, Christian Realism wrestles with individual morality within flawed systems, the universal struggle to act morally when social realities drive people to self-interest and antagonism. Christian Realism issues a call to evaluate society’s injustices, then to implement steps that approach justice, without regard for dogma or party. Niebuhr acknowledges that people will break the law and harm others and that society must protect itself from violence and disorder. He recognizes that every choice requires grueling negotiations between liberty and coercion, freedom and order. In this thicket, Christian Realism takes the side of the oppressed, excluded, and impoverished against entrenched powers, because a just society will provide equal opportunity for all life, rooted in an abiding love among neighbors. Evaluating the American criminal legal system, Christian Realism critiques and condemns mass incarceration and the ascendant preference for violent retribution. The society that sustains mass incarceration fails on three fronts, at least. First, mass incarceration is maximally coercive, signaling a failure of stable, fair means for confronting conflict in society. Second, the entrenched interests of mass incarceration impose corrupting pressures on individual officers and judges invested with discretion, limiting their ability to exert moral force within an unjust system. Third, economic powers have captured the carceral system to advance business interests to the detriment of human dignity, equal opportunity, and love, calcifying the criminal justice system and suppressing movements for reform. Retribution and incarceration are policy choices. A jurisprudence of love that grounds the law in human dignity opens the way for serious alternatives for measured punishment, public safety, therapeutic rehabilitation, community restoration, and social redemption. These may include polices of restorative and therapeutic justice; constructive reentry programs; shorter sentences; decriminalization; reformed plea bargaining; increased investment in education; or other novel ideas to address the forces that drive people to do harm, to treat people justly when they cause harm, and to advance restoration and redemption for the sake of a just society. Christian Realism tests every policy against its commitments to justice and love and its real consequences in the world, even when compromising for incremental, sustainable progress. Thus, Christian Realism welcomes experiments to meet the needs of a just society – order through minimal coercion, fair and stable mechanisms for addressing conflict, the empowerment of the poor and disenfranchised, and laws founded in love. 

Georgia Criminal Law Review (forthcoming 2025)

By Martha Newson, Linus Peitz, Jack Cunliffe & Harvey Whitehouse

As incarceration rates rise globally, the need to reduce re-offending grows increasingly urgent. We investigate whether positive group bonds can improve behaviours among incarcerated people via a unique soccer-based prison intervention, the Twinning Project. We analyse effects of participation compared to a control group (study 1, n = 676, n = 1,874 control cases) and longitudinal patterns of social cohesion underlying these effects (study 2, n = 388) in the United Kingdom. We also explore desistance from crime after release (study 3, n = 249) in the United Kingdom and the United States. As law-abiding behaviour also requires a supportive receiving community, we assessed factors influencing willingness to employ formerly incarcerated people in online samples in the United Kingdom and the United States (studies 4–9, n = 1,797). Results indicate that social bonding relates to both improved behaviour within prison and increased willingness of receiving communities to support re-integration efforts. Harnessing the power of group identities both within prison and receiving communities can help to address the global incarceration crisis.

Nat Hum Behav (2024). https://doi.org/10.1038/s41562-024-02006-3

By Sharon Dolovich

In their welcome new article, Justin Driver and Emma Kaufman offer a provocative take on American prison law: that it is “fundamentally incoherent.” They base this conclusion on the Supreme Court’s repeated tendency to assert contradictory factual premises about prisoners and prison life. In one case, as the authors show, the Court will characterize prisons as violent and in another as “uncomfortable but mundane”; sometimes the Court describes prisoners as illiterate, at other times as strategic and effective litigators; and so on. If ever one imagined this area of the law to have a stable factual foundation, Driver and Kaufman’s dexterous excavation of the Court’s “selective empiricism” puts that notion firmly to rest. But viewed through a broader lens, the Court’s prison law jurisprudence proves anything but incoherent. For all the factual switchbacks Driver and Kaufman identify, there is an unmistakable consistency in the overall orientation of the field: it is consistently and predictably prostate, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features represent the practical manifestation of the divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases. It is hardly a secret that American carceral institutions routinely burden prisoners’ fundamental liberties and fail to provide even minimally safe and healthy living conditions. Yet with prison law’s moral center of gravity tilting so far in the direction of defendants, plaintiffs bringing constitutional claims in federal court can expect to win only in the most extreme cases, leaving the prison environment largely free of judicial regulation. In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state. In particular, I zero in on two components of the judicial process in this context: the construction of defendant-friendly doctrinal standards for deciding prisoners’ claims and the deferential posture with which federal courts tend to approach defendants’ assertions in individual cases. As to the doctrine, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers — which I have elsewhere termed canons of evasion — to construct doctrinal standards for prison law cases that strongly incline courts to rule in favor of the state. In Part I, by way of illustration, I map the deployment of these various mechanisms in two especially consequential cases, Whitley v. Albers and Turner v. Safley, and show how their use operates to create a doctrinal environment decidedly unfavorable to prisoners’ claims

135 Harvard Law Review Forum 302 (2022).

By Sharon Dolovich

When the state incarcerates, it assumes an affirmative, non-negotiable obligation to keep people in prison safe and to provide for their basic needs. In the United States, the three branches of government—legislative, executive, and judicial—are in theory collectively responsible for making certain that this obligation is fulfilled. In practice, the checks and balances built into the system have failed to ensure even minimally decent carceral conditions. This review maps this regulatory failure. It shows that, in all branches of government, rather than policing prison officials, the relevant institutional actors instead align themselves with the officials they are supposed to regulate, leaving people in custody unprotected and vulnerable to abuse by the very actors sworn to keep them safe. This pattern is no accident. It reflects a palpable normative hostility and contempt toward the incarcerated, an attitude with deep roots in the virulent race hatred endemic to the American carceral project from its earliest days.

Annu. Rev. Criminol. 2022. 5:153–77

By Sharon Dolovich

Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny. Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force. This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily. Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison. What is needed instead is a reasonableness standard explicitly framed in terms of the state’s obligations to the incarcerated. This Article makes the case for such a morally robust reasonableness standard and develops an account of both the normative foundations for this approach and the principles that ought to guide, not only factfinders in individual cases, but all actors in a position to shape carceral policy. What drives the inquiry—and sets it apart from the Supreme Court’s own treatment of the constitutional claims of people in custody—is the attention paid to the concrete realities of the modern American prison. The current Supreme Court is unlikely to regard with sympathy the account offered here. But it remains open to the rest of us to insist that the Eighth Amendment’s prohibition on cruel and unusual punishment has meaningful moral content beyond the narrow, often pinched reading that currently shapes the legal doctrine. This Article is intended as part of this larger project of self-conscious moral reclamation. Its animating goals are: to expose the deep flaws in the governing law, to excavate the normative content of Eighth Amendment limits on the state’s power to inflict criminal punishment, and in the process to provide a reinvigorated moral vocabulary for understanding and challenging the use of violence by state officials against the fellow human beings they are sworn to protect. In these ways, this enterprise has considerable overlap with the growing national effort to set moral limits on police violence.

14 Journal of Criminal Law and Criminology 415; UCLA School of Law, Public Law Research Paper No. 24-35

By Felix Owusu

The Suffolk County District Attorney’s Office (SCDAO) has taken steps to limit its use of criminal sanctions for individuals charged with nonviolent offenses, including identifying 15 common charges that arraigning Assistant District Attorneys (line ADAs) should presumptively decline to prosecute (DTP) or divert when possible. These changes, driven by policies introduced by District Attorney (DA) Rachael Rollins after her inauguration in January 2019, reflect mounting evidence that relying on policing, criminal adjudication, and incarceration to address non-violent offenses is costly, exacerbates racial disparities, and is often ineffective at improving public safety. Others are concerned, however, that increasing leniency for even minor offenses will embolden people who commit crimes and lead to more serious misconduct. Below I attempt to analyze the impact of these policy changes on case adjudication as well as future offending behavior for those whose cases were impacted. I primarily rely on administrative data from the SCDAO’s internal case management database as well as criminal records from the Department of Criminal Justice Information Services (DCJIS). Using an event study design, I find that after DA Rollins' inauguration, prosecution rates declined by roughly 5 percentage points on average for cases consisting of charges included in the declination and diversion policy (DTP list cases) and nearly 10 percentage points for cases involving nonviolent misdemeanors more generally. These average decreases mask substantial heterogeneity by offense category and defendant race. Prosecution rates declined substantially less for cases involving Black defendants, and decreases in prosecution rates were concentrated among a subset of DTP list offenses like driving with a suspended license. Consistent with the scope of the policy, prosecution rates for cases involving felonies or violent offenses were not similarly impacted. I also explore the impact of the declination and diversion policy on reoffending using a difference-in-differences design to account for unobserved factors that could impact recidivism throughout the policy's implementation. Consistent with past research, I find that the introduction of the declination and diversion policy was associated with small (although statistically indistinguishable from zero) decreases in overall reoffending and violent reoffending.  

Boston:The Rappaport Institute for Greater Boston at Harvard’s Kennedy School of Government, 2022. 

By Sandra Susan Smith

As a growing number of jurisdictions across the country have attempted to implement bail reforms, debates have intensified about the relationship between such reforms and crime, including and perhaps especially violent crime. Similar debates, for instance, have raged in New York, where the backlash against bail reform caused the state legislature to roll back key elements just three months after implementation. In recent weeks, New York Governor Kathy Hochul has proposed further rollbacks to the law to address continued concerns that bail reform has contributed to spikes in the state’s violent crime rate. Although largely driven by politics, these debates raise an important and timely set of empirical questions: What role does pretrial detention/release play in producing, or threatening, public safety? Does pretrial release incentivize crime and drive-up crime rates, including violent crime, as many in law enforcement have claimed? Or, all things considered, is pretrial detention the greater risk to public safety? This discussion paper is an effort to synthesize the evidence on this question. Before doing so, however, I specify the conceptualizations of public safety that I deploy throughout. I then draw from academic and policy research on the costs and benefits to public safety of pretrial detention/release, distinguishing evidence from studies of the impacts of releases resulting from routine pretrial practices, from bail reform, and from responses to the Covid-19 pandemic. No matter the cause of pretrial release, the evidence seems clear: Overall, pretrial detention is a far greater threat to public safety than pretrial release. Not only does detention increase the risk that even low-risk individuals might reoffend (or be rearrested), but detention also initiates a series of collateral consequences downstream that are difficult for many to overcome.

Arnold Ventures Public Safety Series, July 2022. 14p.

By The Washington State Office of the Corrections Ombuds Solitary Confinement Research Team (OCO-SCRT). . Research Team:  Angee Schrader OCO-SCRT Project Lead Senior Corrections Ombuds - Investigations E.V. Webb, M.E.S. OCO-SCRT Thematic Analysis Lead Assistant Corrections Ombuds - Investigations Elisabeth Kingsbury, J.D. OCO Deputy Director Heather Bates OCO Public Records & Contract Manager Madison Vinson, J.D. OCO Assistant Corrections Ombuds - Policy Sara Appleton OCO Quality Assurance & Training Manager Zachary Kinneman

Civilian oversight of corrections brings an independent set of eyes and, if done correctly, the values of integrity, respect, collaboration, equity, and courage to bear witness to the ways in which the norms and cultures of carceral systems are rooted in secrecy, a lack of transparency, and rules and regulations. The Washington State Office of the Corrections Ombuds (OCO) is the only civilian oversight of the Washington State corrections system established in state government with the authority and responsibility to investigate actions or inactions of the Washington Department of Corrections (WADOC). The OCO routinely monitors places that are among the most opaque public institutions in our state – the state’s corrections facilities (prisons and reentry centers). In addition to monitoring prisons and reentry centers, the OCO, in its capacity as the statewide prison oversight mechanism, responds to the governor and legislature’s concerns about conditions of confinement and the inherent dangers of living and working inside corrections facilities. Advocates of eradicating the use of solitary confinement in WADOC have waged a multi-year campaign requesting greater attention be paid to what happens to people living and working inside prisons in the state of Washington. Some elected officials have demanded greater accountability and transparency from the WADOC about the use of solitary confinement. Multiple bills calling for a reduction in solitary confinement have been introduced in the state legislature in recent years; however, none have passed out of the legislature. At the end of the 2023 legislative session, seeing that once again, a bill requiring the WADOC: to reduce the use of solitary confinement would not pass out of the legislature, a request was made of the OCO to write a report answering a short list of specific questions about the WADOC ‘s historical and current use of solitary confinement. This report, Solitary Confinement: Part II, looks deeply at the experiences, perspectives, and opinions of a sampling of people who have lived in solitary confinement in WADOC prisons with the goal of providing additional context to the data discussed in Part I. The final release, Solitary Confinement: Part III, will piece together Part I and Part II in a discussion of opportunities for further administrative policy changes and legislative solutions. Solitary Confinement: Part II highlights the voices and experiences of a sample of 13 individuals who have spent extensive time in solitary confinement while incarcerated in the state of Washington. This report also provides key terms, photographs, and further context for public understanding of solitary confinement in Washington State prisons. The goal is to provide greater transparency around the conditions and experiences of people living in solitary.  

By The Washington State Office of the Corrections Ombuds Solitary Confinement Research Team (OCO-SCRT).  Angee Schrader, OCO-SCRT Lead Sara Appleton,  Heather Bates,  Zachary Kinneman, Madison Vinson,  E.V. Webb

Solitary Confinement: Part I is the first of three reports on solitary confinement planned for release throughout the coming months. Part I responds to the legislature’s direction to conduct a review of all incarcerated people who had or have been: 1. housed in solitary confinement or any other form of restrictive housing more than 120 days in total, or 2. housed in solitary confinement or any other form of restrictive housing more than 45 consecutive days in Fiscal year 2023 (July 1, 2022-June 30, 2023). Civilian oversight of corrections brings an independent set of eyes and, if done correctly, the values of integrity, respect, collaboration, equity, and courage to bear witness to the ways in which the norms and cultures of carceral systems are rooted in secrecy, a lack of transparency, and rules and regulations. The Washington State Office of the Corrections Ombuds is the only civilian oversight of the Washington state corrections system established in state government with the authority and the responsibility to investigate actions or inactions of the Washington Department of Corrections (WADOC ). The Office of the Corrections Ombuds (OCO) routinely monitors places that are among the most opaque public institutions in our state – the state’s corrections facilities (prisons and reentry centers). In addition to monitoring prisons and reentry centers, the OCO, in its capacity as the statewide prison oversight mechanism, responds to the governor and legislature’s concerns about conditions of confinement and the inherent dangers of living and working inside corrections facilities. Advocates of eradicating the use of solitary confinement in WADOC have waged a multi-year campaign requesting greater attention be paid to what happens to people living and working inside prisons in the state of Washington. Some elected officials have demanded greater accountability and transparency from the WADOC about the use of solitary confinement. Multiple bills calling for a reduction in solitary confinement have been introduced in the state legislature in recent years; however, none have passed out of the legislature. At the end of the 2023 legislative session, seeing that once again, a bill requiring the WADOC to reduce the use of solitary confinement would not pass out of the legislature, a request was made of the Office of the Corrections Ombuds (OCO) to write a report answering a short list of specific questions about the WADOC ’s historical and current use of solitary confinement. This report, Solitary Confinement: Part I, provides a step-by-step answer to the specific questions asked by the Legislature  

Olympia: The Ombudsman, 2024. 421p.

By Doug Pyper, Georgina Sturge, Harriet Samuel 

Suicides in prisons in England and Wales In 2023, provisional statistics show that there were 93 suicides in prison custody in England and Wales. This represented a rate of 10.8 suicides per 10,000 prison population, a rise on the 2022 figure of 9.4. Over the past twenty years, the lowest rate of suicides per 10,000 prisoners was around 7 in 2008-2012 and the highest was 15 in 2016. The suicide rate rose between 2012 and 2016 but has declined overall since. Over the same period, the proportion of prison deaths attributed to suicide has declined by 28 percentage points: down from 58% of all deaths in 2002 to 30% in 2023 The rate of suicides among male prisoners is higher than that in the male general population. An Office for National Statistics study of deaths between   

London: UK Parliament, House of Commons Library, 2024. 11p.

By Evarn J. Ooi

Aim

We investigate the impact of the Practice Guide for Intervention (PGI) on re-offending among high-risk parolees in New South Wales (NSW).

 Method

Introduced in June 2016, PGI was a major component of the ‘Enhanced Community Supervision’ reform and led to a dramatic overhaul in the delivery of supervision services. Using a difference-in-differences (DiD) strategy, we compare re-offending behaviour between offenders released from prison on parole and those released unconditionally before and after the introduction of PGI. PGI is compulsory for offenders released on parole with a Level of Service Inventory-Revised (LSI-R) score of medium or above, and consequently, the sample is limited to offenders with these LSI-R scores. Re-offending is measured as the probability of committing a new and proven offence within 12 months of release from prison. The pre-PGI period includes offenders released from prison between June and December 2014. There are two post-PGI periods. The first post-PGI period includes offenders released between June and December 2016, which coincides with the first six months after PGI was introduced in NSW. The second post-PGI period includes offenders released between June and December 2017, when the use of PGI across NSW was approaching its historical peak.

 Results

A comparison of the trends in the re-offending rate before the introduction of PGI confirms that prisoners released unconditionally form a natural comparison group for parolees. The DiD estimates reveal a 2 to 3 percentage point reduction in the likelihood of re-offending among parolees compared with those released unconditionally after the introduction of PGI. However, the estimates are not statistically significant.

Conclusion

The results suggest that the introduction of PGI did not have a statistically significant impact on re-offending rates of high-risk parolees.

(Crime and Justice Bulletin No. 228).  Sydney: NSW Bureau of Crime Statistics and Research. 2020. 26p.

By Sarah L. Desmarais, Brandon Morrissey, Lisa Callahan, Samantha A. Zottola, Jen Elder, Kristin Lupfer, Elan C. Hope, & Richard A. Van Dorn

Although most jail admissions represent the only contact a person will have with the criminal legal system, there is a small group of people who experience more frequent jail contact and who represent a disproportionate number of both jail admissions and expenditures.1,2 People with frequent jail contact experience complex, interconnected social, economic, and behavioral health needs that may exacerbate (or be exacerbated by) their frequent jail contact. This group also experiences frequent contact with other services in the community, such as emergency rooms, homeless shelters, and treatment facilities. Strategies to implement services that meet complex needs and address structural barriers are critical to meaningfully and sustainably reduce system involvement among the population of people who experience frequent jail contact. Effective change for people with frequent jail contact must proceed simultaneously on a systemic, policy level and on the individual 1 services level. The population discussed in this policy brief typically has complicated behavioral and medical health needs, extensive criminal legal encounters, and significant social deficits such as poverty, isolation, and elevated risk of being unhoused. Many of their needs can be addressed with intensive, person-centered treatment in a coordinated continuum of care. The success of community-based solutions is supported by three foundational elements: 1. A systemwide examination of structural barriers and opportunities, 2. A focus on policies to effectively implement and support evidence-based interventions, and 3. A re-envisioning of how the behavioral health and criminal legal systems can coordinate trauma-informed responses for people with frequent jail contact. In this policy brief, we provide nine policy recommendations to help communities address the needs of people experiencing frequent jail contact toward the goal of reducing future contact. These policy recommendations are based on a review of existing research on people with frequent jail contact,3 consideration of the findings of a 2-year mixed-methods study focused on understanding the population of people with frequent jail contact in three U.S. counties,4 and consultation with experts, community partners, and people with lived experience. The nine policy recommendations are: 1. Create a Data Sharing Ecosystem 2. Establish Formal, Jurisdiction-Specific Definitions 3. Use Validated Behavioral Health Screening Tools 4. Implement Psychiatric Advanced Directives 5. Facilitate Jail In-Reach Programs 6. Increase Peer Support Programs 7. Improve Access to Housing 8. Increase Utilization of Community-Based Services 9. Center and Evaluate Efforts for Racial Equity
 

New York: Safety and Justice Challenge Research Consortium, which is managed by the CUNY Institute for State and Local Governance. 2023. 9p.

By The Howard League for Penal Reform

Young adults aged 18-25 are a distinct group who are still maturing as their brains continue to develop. They are overrepresented in the prison population in England and Wales, and in particular in the remand population where they make up 20 per cent of the population compared to around eight per cent in the general population. • The need for a distinct approach for young adults has been recognised in some parts of the criminal justice system. However, the focus tends to be on convicted young adults who are being or have been sentenced. More attention must be paid to young adults who are awaiting trial or sentencing. • Young adults are subject to the provisions set out in the Bail Act 1976, which apply to all adults. The framework on bail and remand should be amended to align with the recently strengthened tests on remand for children. A child cannot be remanded to custody if it is not ‘very likely’ that they will receive a custodial sentence for the offence for which they appear before the court. Where a child has a history of breach or offending whilst on bail they cannot be remanded to custody unless the breach or offending is ‘relevant in all the circumstances of the case’ and is ‘recent and significant’. There is a statutory duty on the court to consider a child’s best interests and welfare. These provisions, which aim to ensure that remand to custody is a last resort, do not apply to young adults. Turning 18 should not be a cliff edge. • The Crown Prosecution Service and judiciary should incorporate a greater recognition of maturity into relevant guidance to ensure that a distinct approach is taken to young adults from the outset. • Young adults should not be remanded without a court report which considers the impact on them of being remanded. If a young adult is to be remanded, sufficient time should be given to explaining remand decisions in court and young adults should be provided with a copy of the reasons for remand in writing. Data on the reasons for remand decisions should be published and disaggregated by age, ethnicity, religion and gender. • Remand is used disproportionately against Black, Brown and racially minoritised young adults. In June 2023, 26 per cent of remanded 18-20-year-olds and 18 per cent of remanded 21–25-year-olds were Black, compared to less than six per cent and five per cent respectively in the general population. Data on the number of people on remand should continue to be published and be disaggregated by age, ethnicity and religion. • Custodial time limits should only be extended in exceptional circumstances. Consideration should be given to the impact of an extended period of time in custody on a young adult in light of their age and ongoing maturational development, before time limits are extended. Data on the length of time people are held on remand should be published and should be disaggregated by age, ethnicity, religion and gender.  • Young adults benefit from lawyers who specialise in working with that age group and understand their specific needs. More should be done to support and encourage all young adults at risk of remand to have specialist legal representation. • Remanded young adults should have access to resettlement support in custody and more should be done to ensure the availability of good quality accommodation that meets young adults’ needs. • All prisons and courts should have a bail information service with bail information officers who are trained in and understand the specific needs of young adults. • Young adults who are remanded should be allocated a probation officer and keyworker in prison. • Young adults should have access to a meaningful daily regime, which includes education and employment, physical exercise and contact with family and friends. Unconvicted prisoners should have the number of visits they are legally entitled to. • Young adults should be supported to submit complaints, including escalating them to the Prisons and Probation Ombudsman as needed, and complaints should be responded to in a timely manner, in accordance with the national complaints policy. • Specialist mental health provision should be available to remanded young adults. • More must be done to identify careexperienced remanded young adults, including increased training for staff in prison on leaving care rights. Every prison holding remanded young adults should have a leaving care co-ordinator. Introduction - In Autumn 2022 the Howard League launched a project, supported by the Barrow Cadbury Trust, to better understand the experiences of remanded young adults. The project builds on previous work by the Howard League looking at the specific needs of young adults, including the role of maturity in the sentencing of young adults (Howard League, 2017), sentencing principles for young adults (Howard League, 2019a and b), and issues facing young adults in prison during Covid (Howard League, 2020). The project follows on from an earlier scoping study about young adults on remand supported by the Barrow Cadbury Trust (Allen, 2021). That study found that there are strong arguments for developing a strategy to make remand arrangements better reflect the developing maturity of young adults. This briefing includes the experiences, voices and lessons to be learned from a group of remanded young adults aged 18-20 in a male Category B prison. It is informed by discussions with criminal justice professionals who work with remanded young adults in England and Wales and the Howard League’s work representing individual young adults across the prison estate through its specialist legal advice service. 

London: Howard League for Penal Reform,   2023. 13p.

By Hilde Tubex, John Rynne and Harry Blagg

This article reports on research undertaken in Western Australia and the Northern Territory to develop effective throughcare strategies for Indigenous people leaving prison. The findings are based on interviews with Indigenous men and women in communities, with and without lived experience of prison, and local service providers. The interviews demonstrate that a thorough exit plan from prison is essential. However, for throughcare strategies to be effective, they should acknowledge the context of Indigenous involvement in the criminal justice system and the ongoing consequences of colonisation. The paper discusses the main areas that need to be addressed during imprisonment and after release, which form the basis of recommendations. Effective throughcare strategies must involve Indigenous people and the broader community, to break the cycle of offending and reoffending and address the over-representation of Indigenous people in prison. 

Trends & issues in crime and criminal justice no. 585. Canberra: Australian Institute of Criminology. 2020. 14p.

By Charles Fain Lehman

In 2019, then-mayor Bill de Blasio introduced, and the New York City Council approved, plans to close the jail complex on Rikers Island and replace it with four jails in Manhattan, Brooklyn, the Bronx, and Queens. Construction on these borough-based jails is expected to be completed in 2027, at which time the city is expected to shutter Rikers entirely. In doing so, it will replace a system with a maximum capacity of nearly 15,000 beds with one that can hold just 3,300 detainees on a given day. That capacity is, by any measure, extremely small, representing a daily population seldom seen on Rikers since its opening a century ago. Even after more than half a decade of deliberate incarceration, the jail’s daily population today sits between 5,500 and 6,000, far greater than the borough-based jails’ allotment. Can New York City operate a jail system with just 3,300 beds without either: a) dangerous, likely illegal, overcrowding? or b) making the city less safe? This report argues that the answer is no. To reach this conclusion, it recounts how the 3,300-bed figure was arrived at, which had more to do with politics than with any reasonable projection of required capacity. It then details the research on the effects of pretrial detention, investigates who is currently on Rikers and who could safely be released, and estimates the relationship between crime rates and jail population. The bottom line: under almost no conceivable scenario can the city expect to safely and sustainably reduce the daily jail population to 3,300—never mind, to reduce it below that figure. Given the city’s commitment to closing Rikers, this report concludes by looking at potential sources of alternative capacity, including refurbishing or repurchasing closed jails; constructing small additional borough jails; and “boarding out” detainees to Long Island and Westchester County. These solutions could buy additional capacity for the system but not enough to provide adequate and safe housing for even the current, much-reduced population. In light of this, the report briefly revisits the case for keeping some of Rikers open  In 2019, then-mayor Bill de Blasio introduced, and the New York City Council approved, plans to close the jail complex on Rikers Island and replace it with four jails in Manhattan, Brook lyn, the Bronx, and Queens. Construction on these borough-based jails is expected to be completed in 2027, at which time the city is expected to shutter Rikers entirely. In so doing, it will replace a system with a maximum capacity of nearly 15,000 beds with one that can hold just 3,300 detainees on a given day. That capacity is, by any measure, extremely small, representing a daily population rarely seen on Rikers since its opening a century ago. Even after more than half a decade of deliberate incarceration, the jail’s daily population today sits between 5,500 and 6,000, far greater than the borough-based jails’ allotment. Can New York City operate a jail system with just 3,300 beds without either: a) dangerous, likely illegal, overcrowding? or b) making the city less safe? This report argues that the answer is no. To reach this conclusion, it recounts how the 3,300-bed figure was arrived at, which had more to do with politics than with any reasonable projection of required capacity. It then details the research on the effects of pretrial detention, investigates who is currently on Rikers and who could safely be released, and estimates the relationship between crime rates and jail population. The bottom line: under almost no conceivable scenario can the city expect to safely and sustainably reduce the daily jail population to 3,300—never mind, to reduce it below that figure. Given the city’s commitment to closing Rikers, this report concludes by looking at potential sources of alternative capacity, including refurbishing or repurchasing closed jails; constructing small additional borough jails; and “boarding out” detainees to Long Island and Westchester County. These solutions could buy additional capacity for the system but not enough to provide adequate and safe housing for even the current, much-reduced population. In light of this, the report briefly revisits the case for keeping some of Rikers open 

New York: The Manhattan Institute, 2022. 34p.

By Alex Roth, Sandhya Kajeepeta, and Alex Boldin

Probation—a court-ordered period of supervision in the community for people convicted of criminal charges—has traditionally been viewed as an alternative to incarceration, and sentencing more people to probation rather than prison was long proposed as a solution to the problem of mass incarceration. (See “A brief history of probation” on page 2.) However, as the number of people on probation in the United States has grown massively and probation supervision has become more punitive over the past few decades, more recent reports have focused on how probation is contributing to mass incarceration. These reports explain how increasingly large numbers of people are having their probation supervision revoked and are then being sentenced to incarceration, often for noncompliance with conditions of supervision rather than new criminal charges. Although most of these reports mention both prisons and jails when discussing how probation violations have contributed to mass incarceration, they provide almost no specific information about how such violations affect jail populations. The information about probation’s impact on jails included in some of these reports is often extremely old and sometimes incorrect, propagated from reports that cite previous reports in a sort of game of statistical “telephone.” Meanwhile, other reports simply acknowledge the reality that there is no good national data on how probation contributes to incarceration in local jails. The lack of information about probation’s impact on jail populations is problematic because far more people are admitted to jails than prisons every year and jails are a driving force in mass incarceration generally, and jail populations are also marked by significant racial disparities. This brief will summarize what we do know about probation and how it can contribute to jail populations. It will also present an analysis of data from nine cities and counties participating in the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC), a national initiative that seeks to address over-incarceration by changing the way the  United States thinks about and uses jails. The Vera Institute of Justice (Vera) was able to obtain more detailed jail data from these sites than is available at the national level. This analysis offers examples of how probation affects jail incarceration and the kind of data and analysis that is needed at the national level. Finally, this brief will highlight work being done in two SJC sites—St. Louis County, Missouri, and Allegheny County, Pennsylvania— to reduce the number of people on probation in their jails. This brief is intended both to spur greater consideration of the problem of probation’s contribution to jail populations and to suggest ways to address it.  

New York: Vera Institute of Justice, 2021. 50p.

By Joshua Grossman, Julian Nyarko, and Sharad Goel

We evaluate the statistical and conceptual foundations of empirical tests for disparate impact. We begin by considering a recent, popular proposal in the economics literature that seeks to assess disparate impact via a comparison of error rates for the majority and the minority groups. Building on past work, we show that this approach suffers from what is colloquially known as “the problem of inframarginality”, in turn putting it in direct conflict with legal understandings of discrimination. We then analyze two alternative proposals that quantify disparate impact either in terms of risk-adjusted disparities or by comparing existing disparities to those under a statistically optimized decision policy. Both approaches have differing, context-specific strengths and weaknesses, and we discuss how they relate to the individual elements in the legal test for disparate impact. We then turn towards assessing the disparate impact of search decisions among approximately 1.5 million police stops recorded across California in 2022 pursuant to its Racial Identity and Profiling Act (RIPA). The results are suggestive of disparate impact against Black and Hispanic drivers for several large law enforcement agencies. We further propose alternative search strategies that more efficiently recover contraband while also exerting fewer racial disparities.

Journal of Law and Empirical AnalysisVolume 1, Issue 1, June 2024