By Lila Kazemian

This paper reviews the empirical literature on desistance from crime among adolescents and adults and the factors that explain (dis)continuity in criminal behavior in the transition to adulthood. It also highlights the implications of this knowledge base for various criminal justice agencies. Drawing on the research literature and relevant theoretical frameworks, the paper offers nine key recommendations on desistance-promoting criminal justice policy and practice.  Our criminal justice interventions would benefit from a paradigm shift that expands from an exclusive focus on recidivism to the consideration of positive outcomes that may result in reduced involvement in crime. Program evaluations that prescribe to this new paradigm should: (a) integrate the well-established fact that desistance from crime occurs gradually and that setbacks are to be expected; (b) consider changes in individual and social outcomes in addition to behavioral measures; (c) offer a balanced assessment of both failure and success outcomes and invest resources in tracking progress before, during, and after any given intervention; and (d) provide incentives for success. Biosocial research has suggested that from a cognitive perspective, emerging adults (18-24 years old) may resemble adolescents more than adults. It would then be logical to extend assumptions about reduced culpability to individuals up to the age of 24. Young adult courts are an example of such an accommodation. The age crime curve confirms that most individuals are likely to give up crime during emerging adulthood; in many cases, criminal justice processing during this period may be counterproductive and might delay the process of desistance from crime that would otherwise occur naturally. Prosecutors play a key role in fostering desistance by avoiding further processing for individuals who do not pose a significant threat to public safety. Longer prison sentences are not effective in promoting desistance from crime and reducing recidivism. Confinement disrupts the desistance process in many ways, and it should be used only as a last recourse. When possible, jurisdictions should favor alternatives to confinement for both juveniles and adults. Few individuals remain active in crime after the age of 40. Barring exceptional circumstances for those who pose a clear threat to public safety, there is no empirical basis for incarcerating individuals for decades past mid-adulthood. Because the decision to give up crime is regarded as a gradual process rather than an abrupt event, preparation for release from confinement should ideally begin early in the sentence for those cases where incarceration is deemed necessary. Individuals can make constructive use of their time in prison if they can find meaning to their sentence, get to the root of the reasons that brought them to prison in the first place, and develop a plan for their return to society. These are essential components of the desistance and reintegration processes. Interactions with law enforcement may disrupt desistance in many ways that are not necessarily well understood by officers. Given that most initial contacts with law enforcement do not result in further criminal justice processing, arrests that do not lead to a conviction constitute a poor measure of criminal behavior and may create unnecessary stigma that hampers the desistance process. This stigma disproportionately affects individuals belonging to socially marginalized groups. Convictions or incarcerations may be more valid indicators of official crime. The stigma of a criminal record has enduring effects on the ability to successfully reintegrate into society. Expungement laws can help offset some of the negative consequences of the stigma of a criminal record. The mere prevalence of past offending is insufficient to assess the future risk of reoffending. We need to account for other dimensions of the criminal record, including the recency and intensity of involvement in past crimes. Housing and employment policies that adopt a blanket ban against individuals with a criminal record cannot be justified based on public safety concerns and are detrimental to the process of desistance from crime. 8. 9. Many state and local jurisdictions have developed promising initiatives and interventions that draw on principles of the desistance paradigm, but few have been rigorously evaluated. Partnerships between policymakers, practitioners, and academics are crucial to conducting more systematic assessments. We also need to better understand whether the level of responsiveness to any given intervention varies across demographic groups (specifically age and gender), criminal history characteristics, and histories of trauma. Efforts to promote desistance from crime are not the sole responsibility of one agency. The most promising desistance-promoting policies and practices rely on ongoing partnerships between the various agents of the criminal justice system and community resources, including law enforcement, prosecution, corrections, and community organizations.    

(Washington, DC: U.S. Department of Justice, National Institute of Justice, 2021), NCJ 301497. 2021. 38p.

By  Brett Fischer, Johanna Lacoe and Steven Raphae

When someone is arrested and cannot afford bail or a private lawyer, they stay in jail and have to wait several days before they are assigned a public defender at arraignment. This time in jail imposes legal, social, and economic costs, from a higher chance of conviction to loss of employment or wages. Low-income individuals bear the brunt of these costs because many cannot afford to post bail to secure their own release, nor can they afford to hire a lawyer to negotiate their release. The County of Santa Clara Public Defender’s Office designed a program to address these problems by providing legal counsel to low-income people shortly after their arrest. In early 2020 they piloted the Pre-Arraignment Representation and Review (PARR) program using a rotating schedule that offered PARR services one day per week. This quasi-random implementation enabled the research team to estimate the impact receiving PARR services had on release and case outcomes. Participation in the program decreased jail time and convictions, and increased case dismissals. This policy brief is a condensed version of a National Bureau of Economic Research working paper: The Effect of Pre-Arraignment Legal Representation on Criminal Case Outcomes. Key Findings • Arrested individuals who received PARR services were detained in jail, on average, for 23 fewer days relative to comparable people who did not receive PARR services (6 total days vs. 29 total days). This reduction reflects both reductions in pretrial detention, as well as potential reductions in the probability and length of incarceration imposed at sentencing. • PARR participants were more than twice as likely to have their cases dismissed altogether, thereby avoiding a criminal conviction. Specifically, receiving PARR services reduced the probability that an individual was convicted by about 75% relative to comparable people whom PARR did not serve. These findings underscore how providing faster access to legal representation following an arrest can improve case outcomes for low-income individuals.

Los Angeles: California Policy Lab, 2024. 5p.

By NIla Bala, Casey Witte, Lars Trautman   

 The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system. In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences. While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful. With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities. This paper examines the sources of racial disparities in the criminal justice system, how prosecutors may contribute to them, and finally, actions that prosecutors can take to help reduce these disparities. These recommendations include a better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs, and implementing algorithmic color-blind charging.  

Washington, DC: R Street, 2021. 6p.

By: Oded Oren (Scrutinize) and Rachael Fauss (

Transparency is a cornerstone of a robust democratic governance system. It helps build public trust, fosters accountability, and promotes informed citizen participation. When it comes to the transparency of the state judiciary and court administration, there are notable shortcomings due to gaps in current law and practice. Since judicial data is a public good, there is a compelling public interest in making more judicial data publicly available. This report delves specifically into the limited publication of written decisions by criminal court judges.

Key Findings:

1. Only an estimated 6% of the total written criminal court decisions are published every year.

2. In New York, criminal court judges effectively decide whether or not to publish their decisions in criminal cases. Of the judges who published at least one decision a year, the average number of published decisions was two to three decisions a year.

3. The number of judges presiding over criminal cases each year is not made available by the court system, meaning that it is not possible to determine how many judges publish zero decisions each year.

4. Of the 600 New York criminal court judges who published at least one decision between 2010 and 2022, 20 judges (3%) were responsible for 28% of all published decisions, while 356 judges (59%) published three or fewer decisions.

Public Access to Criminal Court Decisions Boosts Transparency and Judicial Accountability:

• Judicial Assessment: Access to decisions is vital for evaluating a judge’s performance and qualifications during reappointment, reelection, or promotion.

• Legislative Oversight: Publicly available decisions provide a window for the Legislature to monitor the implementation of criminal law reforms.

• Legal Insight: Decisions offer valuable insights for appellate courts and attorneys into legal interpretations and trends, but only if they are available for review.

Recommendations:

1. New York should pass a law to increase transparency by requiring written decisions by criminal court judges to be publicly available online.

2. Judges would be able to submit transcripts of oral rulings instead of written decisions.

3. The new law would mandate the publication of decisions when they resolve a legal issue raised in a written motion or decide a pre-trial hearing.

4. The new law would also require the Office of Court Administration to make all written criminal court decisions authored in the past 15 years publicly available.

5. The Office of Court Administration should immediately begin implementing these policies administratively.

Scrutinize and Reinvent Albany, 2023. 28p.

By David Hausman

Prioritization by criminality, in which noncitizens who have been convicted of serious crimes are deported ahead of those with little or no criminal history, is the most consequential principle governing who is deported from the interior of the United States. This Article argues that, intuitive as prioritization by criminality may appear, it is only rarely justifiable. I show, empirically, that the interior immigration-enforcement system is successful at such prioritization. Being convicted of a crime makes deportation at least a hundred times more likely. And I show that center left attempts to reduce deportations over the last decade have sharpened this prioritization: both sanctuary policies and President Obama’s Priority Enforcement Program, which caused the two largest reductions in interior immigration enforcement in the last decade, prioritized deportations by criminality. Because well under one percent of undocumented noncitizens are deported in any given year, some principle for prioritizing deportations is needed (to the extent that deportations continue at all), but criminality should not be the primary principle. First, the crime-control rationales for punishing noncitizens more severely than citizens convicted of the same crime are surprisingly weak. Second, the immigration-policy rationale for prioritization by criminality is strongest among recent entrants to the United States. The longer a noncitizen has lived in the United States, and the stronger his or her ties here, the less deportation resembles a retroactive admission decision and the more it resembles punishment. Finally, the relationship between ties and criminality is asymmetric: there are better arguments for deporting people with weak  ties and no convictions than for deporting people with strong ties and serious convictions. If noncitizens convicted of crimes were mostly recent entrants, then the current prioritization might make sense. But the limited existing evidence on deportees’ ties to the United States suggests that prioritization by criminality leads the government to target people with deep roots in this country. The result is that interior immigration enforcement functions more as a method of social control of long-term noncitizen residents than as a tool of immigration policy. 

THE GEORGETOWN LAW JOURNAL [Vol. 110:973 2022

By: Omair Gill, Mia Bird, Johanna Lacoe, Molly Pickard, Steven Raphael and Alissa Skog

Consecutive sentencing is a practice where people serve sentences for separate convictions sequentially rather than concurrently. We analyze the application of consecutive sentences among all people admitted to California’s prisons since 2015, as well as the population of people incarcerated as of March 2023. KEY FINDINGS: • Frequency. Most prison admissions (56%) are ineligible for consecutive sentencing because they do not involve convictions for multiple offenses. Among admissions with multiple convictions, half (51%) receive consecutive sentences. In total, consecutive sentences are applied to less than a quarter of prison admissions in California (22%). • Contribution to sentence length. Overall, the time added by consecutive sentences increases the average prison sentence of the entire prison population by 8.5 months (roughly 13%). ◦ Among those admitted with consecutive sentences, it increases the average sentence by 35%, or three years (from 8.6 to 11.6 years). ◦ Consecutive sentences typically involve either the full sentence for an additional offense tagged on to the primary sentence or an additional sentence equal to one-third the prescribed sentence for the lesser ofense. While only 20% of consecutive sentences are for full additional prison terms (80% are for one-third terms), full-term sentences account for roughly 70% of the additional sentence years added through consecutive sentences since 2015. • Contributing factors. Among cases with multiple convictions, consecutive sentences are more likely to be applied when criminal cases involve offenses that occurred in multiple counties, the offenses are serious or violent, the most serious offense is a crime against a person, or the individual has prior prison admissions for serious or violent crimes. ◦ Multivariate models show that the likelihood of a consecutive sentence increases with the number of prior prison admissions, number of convictions, and age of the person admitted. People admitted with second- and third-strike enhancements are more likely (by roughly 12 to 18 percentage points) to receive consecutive sentences relative to admissions with multiple convictions without these enhancements ◦ Offenses receiving one-third consecutive sentences are more likely to involve property offenses, weapons offenses, as well as offenses like evading a police officer or identity theft. By contrast, the offenses receiving full-term consecutive sentences often involve crimes against a person, child victims, and various sex offenses. • County variation. The use of consecutive sentences varies across the state. Counties in far Northern California, excluding the coast, as well as those in the Central Valley, are more likely to impose consecutive sentences. Bay Area counties and most counties in Southern California are less likely to impose consecutive sentences. ◦ Average differences across counties in the types of cases resulting in a prison admission do not explain cross-county differences in the use of consecutive sentencing. ◦ American Indian/Alaskan Native and White people are more likely to receive consecutive sentences largely because they tend to be convicted in counties that are more likely to use consecutive sentencing. The opposite is true for Black, Hispanic, and Asian people. .   

Los Angeles: California Policy Lab, 2024. 39p.

By Mary Catlin, David Wilson, Allison D. Redlich, Talley Bettens, Christian Meissner, Sujeeta Bhatt, Susan Brandon

Background

False confessions are often the product of an interrogation process, and the method by which an interrogation is conducted likely affects both the rate of truthful confessions and false confessions. An optimal interrogation method will maximize the former and minimize the latter.

Objectives

The current study was a partial update and extension of Meissner and colleagues' (2012) prior Campbell systematic review titled Interview and Interrogation Methods and their Effects on True and False Confessions. Our objective was to assess the effects of the interrogation approach on the rates of true and false confessions for criminal (mock) suspects.

Search Methods

PsycINFO, Criminal Justice Abstracts, and 15 other databases were searched starting October 20, 2022, with the final search conducted on May 23, 2023; together with reference checking, citation searching, and contact with authors to identify additional studies.

Selection Criteria

All eligible studies experimentally manipulated interrogation approaches (i.e., accusatorial, information-gathering, or direct questioning) were conducted with mock suspects accused of wrongdoing where ground truth was known and included information about confession rates.

Data Collection and Analysis

We used standard methodological procedures expected by The Campbell Collaboration for our selection of studies and data collection. However, we developed our own risk of bias items and analyzed our data using network meta-analysis methods. Data were synthesized via random-effects network meta-analysis based on the logged odds ratio.

Main Results

Across the 27 research articles that provided statistical information sufficient to calculate an effect size, 29 individual studies provided a total of 81 effect sizes. Most studies were conducted with college students in the United States. Overall, our risk of bias assessment indicated that authors generally adhered to double-blind procedures and avoided selective reporting of outcomes. Of note, however, it was often unclear how violations of the randomization process were dealt with.

For true confessions, there were 12 studies estimating the effect between accusatorial and direct questioning, five estimating the effect between information-gathering and direct questioning, and another five estimating the effect between accusatorial and information-gathering. Compared to information-gathering, on average, the accusatorial conditions observed fewer true confessions, although not statistically significant (combined OR = 0.55, 95% CI 0.29, 1.05). The largest effects were between information-gathering and direct questioning, with the former producing significantly more true confessions on average (combined OR = 2.43, 95% CI 1.29, 4.59). This model showed good consistency between the direct and indirect effects.

For false confessions, there were 20 studies estimating the effect between accusatorial and direct questioning, 4 studies estimating the effect between information-gathering and direct questioning, and 7 estimating the effect between accusatorial and information-gathering. On average, accusatorial conditions yielded more false confessions than direct questioning (combined OR = 3.03, 95% CI 1.83, 5.02) or information-gathering (combined OR = 4.41, 95% CI 1.77, 10.97), both of which are statistically significant. In contrast, direct questioning and information-gathering had roughly similar rates of false confessions with nonsignificant and small effects that slightly favored information-gathering (combined OR = 0.69, 95% CI 0.27, 1.78). This model showed good consistency between the direct and indirect effects.

For true confessions under a six-node model, most of the direct, indirect, and combined network estimated mean odds ratios were not statistically significant. The only significant effects were for (1) information-gathering versus direct questioning, with the former resulting in more true confessions (combined OR = 2.57, 95% CI 1.38, 4.78); and (2) accusatorial-evidence ploy versus information-gathering with the former resulting in fewer true confessions (combined OR = 0.37, 95% CI 0.16, 0.84).

For false confessions under a six-node model, we found significant effects for (1) accusatorial-evidence ploys versus direct questioning, with the former resulting in more false confessions (combined OR = 2.98, 95% CI 1.59, 5.59); (2) accusatorial-evidence ploys versus information-gathering, with the former resulting in more false confessions (combined OR = 4.47, 95% CI 1.46, 13.68); (3) accusatorial-other versus direct questioning, with the former resulting in more false confessions (combined OR = 3.12, 95% CI 1.37, 7.10); (4) accusatorial-other versus information-gathering, with the former resulting in more false confessions (combined OR = 4.67, 95% CI 1.61, 13.55); and (5) information-gathering versus minimization, with the latter resulting in more false confessions (combined OR = 0.25, 95% CI = 0.08, 0.83). No other combined effects were significant. This model should be interpreted cautiously, however, as the Q statistics raised concerns regarding model consistency.

Author's Conclusions

Overall, results support calls for reforming policies related to interviewing and interrogation practices to prohibit the use of accusatorial approaches and require the adoption of science-based approaches.

Campbell Systematic Reviews Volume 20, Issue 4 December 2024

By MacArthur Foundation

The fair and just treatment of racial and ethnic minorities at all stages of the criminal justice system is of significant importance to communities of color, practitioners, and scholars alike. Central to this discourse is a recognition of the discretionary power that prosecutors wield in shaping the outcomes of criminal cases. This includes, among other things, the decision to file or drop a case, amend the severity and number of charges, and dispose of criminal cases through plea bargaining. This report focuses on the outcomes of prosecutorial decision making in Milwaukee County, Wisconsin. Specifically, it assesses the extent to which racial and ethnic disparities exist across the following five decision points in criminal case processing: (1) Case charging; (2) Charge changes from arrest to charging; (3) Disposition type; (4) Charge changes from charging to disposition; and (5) Sentencing. We encourage the reader to interpret the results while recognizing that criminal case processing can trigger disparate outcomes for racial and ethnic minorities for a number of different reasons. Some of these reasons, such as defense attorney role and judicial discretion, are beyond the immediate control of prosecutors. At the same time, our partners are keenly aware that prosecutors can and should play a vital role in uncovering and addressing racial and ethnic disparities in the criminal justice system, and this report stems from that recognition. The intent of this report is to prompt discussion and raise questions, rather than provide definitive answers. We also want to stress that the findings presented throughout this report cannot be used to support or refute possible racial and ethnic biases. Our methodology simply does not permit that. Rather than serving as an end point, we view this report as a starting point from which to engage in meaningful discussions concerning policies and procedures that can ameliorate racial and ethnic disparities in case outcomes. Furthermore, given that prosecutorial decision making does not operate in a vacuum, certain findings direct attention to ways district attorney’s offices, the defense bar, law enforcement agencies, and the judiciary can galvanize future reform efforts. Even more importantly, continued efforts to engage with minority communities will be critical for increasing public trust in and cooperation with the criminal justice system. This report is part of a series of publications resulting from this partnership. The first report, Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside, was released in December, 2018. The second report, Race, Ethnicity and Prosecution in Hillsborough County, Florida, was released in July, 2019. The final report in the series, focused on prosecutorial performance indicators, will be released near the end of 2019.   

2019. 62p.

By Lee Kovarsky  

The tailwinds might be behind criminal justice reform, but American mercy power remains locked in a sputtering clemency model. Centralized leadership should be braver or the centralized institutions should be streamlined, the arguments go—but what if the more basic mercy problem is centralization itself? In this essay, I explore that question. In so doing, I defend the normative premise that post-conviction mercy is justified, and I address the questions of institutional design and political economy that follow. I ultimately encourage jurisdictions to layer decentralized mercy powers on top of their clemency mechanisms, and for the newer authority to be vested in local prosecutors. I present less a single proposal than a collection of principles for mercy decentralization. Governors and presidents simply cannot deliver the punishment remissions appropriate for an American prison population bloated by a half-century love affair with over-criminalization, mandatory minimums, and recidivism enhancements.  

24 New Criminal L. Rev. 326 (2021)  

By The Texas Sunset Advisory Commission

 As the criminal justice system works through the final lingering effects of the COVID-19 pandemic on court backlogs, the Texas Department of Criminal Justice (TDCJ) along with the other adult criminal justice entities subject to this Sunset review — the Board of Pardons and Paroles (BPP), Windham School District, and Correctional Managed Health Care Committee — are once again at a critical point. This Sunset review occurred in the context of TDCJ’s systemwide prison lockdown due to unprecedented levels of contraband and violence and inmate population projections that exceed TDCJ’s operational capacity, raising basic questions about TDCJ’s ability to handle its current and future realities. The state’s criminal justice entities are confronting serious challenges in executing their mission to safely confine, supervise, and provide services for adults convicted of certain crimes in Texas. This Sunset review therefore seeks to best position TDCJ and its counterparts so that they are able to prevent current problems from becoming unmanageable, widespread crises in the coming years. While the sheer size and complexity of Texas’ sprawling prison system is unique, TDCJ faces the same national trend as its peers in other states — hiring people to work in corrections is difficult. The Legislature and TDCJ have long recognized correctional officers, who play a vital frontline role overseeing Sunset seeks to position TDCJ to be able to prevent problems from becoming widespread crises. incarcerated adults, as deserving of additional attention and resources for recruitment and retention. Yet the uncomfortable reality the Sunset review found is some of Texas’ prisons are located in places where hiring sufficient correctional staff is nearly impossible. As that reality is unlikely to change, TDCJ is forced to spend significantly on transporting staff around the state and maintaining facilities that hold thousands of vacant, unusable beds. Furthermore, while difficulty hiring correctional staff isn’t unique to this state, the agency has not done enough to mitigate this problem. Serious and systemic deficiencies in human resources functions, which form the backbone of effective agency operations, contribute to agencywide hiring and retention problems, with more than half of TDCJ divisions at a vacancy rate of at least 20 percent in fiscal year 2023. This staffing crisis extends to parole officers who supervise releasees in Texas communities and several other critical divisions. Ultimately, the Sunset review found TDCJ must concurrently plan for the future to locate or expand facilities in places where the agency can adequately staff them while also greatly improving internal human resources functions and processes to retain existing staff. T he Sunset review also found TDCJ to be in significant need of modernization, as decades-old technology and paper-based and manual processes limit the agency’s ability to effectively and efficiently leverage its $3.9 billion annual budget. But the lack of modernization is not limited to technology. Without better strategic planning and data practices, the agency will continue to reactively lurch from emergency to emergency. Additionally, TDCJ’s approach  to rehabilitation programs, many of which inform BPP’s determination of the potential for an inmate to safely reenter the community, suffer from deficiencies that undermine the Legislature’s significant investment in these programs. To overcome these deficiencies, this review recommends requiring enhanced rehabilitation planning and evaluation to better ensure beneficial program outcomes rather than simply encouraging participation regardless of efficacy. T his Sunset review also took a close look at the parole system — both the processes by which BPP decides whether to grant early release to eligible inmates and the processes by which TDCJ’s parole officers supervise releasees. Given the high stakes of inmates reentering the community and the discretionary nature of making such decisions, BPP voters understandably take a cautious approach. As it has in previous reviews of BPP, Sunset focused on improved fairness, consistency, and transparency of BPP’s decision-making processes. Separately, the review also found the need for more efficient TDCJ parole processes to ease burdens on the often underappreciated parole staff who serve a critical public safety role in Texas communities. T his review did not have findings or recommendations in two key areas: probation and correctional health care. TDCJ’s role in probation is limited to maintaining standards for and providing funding to local Community Supervision and Corrections Departments (CSCDs). Overall, Sunset staff found TDCJ adequately performs this function, and many ideas for changes to probation largely amounted to calls for increased funding. To this end, TDCJ has requested through its 2026-27 Legislative Appropriations Request additional funding to support both CSCD staff salaries and supervision activities. Additionally, this review found the Correctional Managed Health Care Committee’s role, which primarily is to develop a statewide managed healthcare plan, to be functioning adequately. TDCJ works effectively with its contracted partners at the Texas Tech University Health Sciences Center and the University of Texas Medical Branch to deliver healthcare services as the Legislature intended. Despite finding considerable areas for improvement across the criminal justice entities under review, Sunset staff determined that Texas continues to benefit from TDCJ’s oversight and management of a system in which a single state agency supports probation and directly provides incarceration and parole supervision. Accordingly, Sunset staff recommends continuing TDCJ for 12 years and aligning its Sunset review to coincide with that of the other criminal justice entities. The following material highlights Sunset staff’s key recommendations for the Texas Department of Criminal Justice, Board of Pardons and Paroles, Windham School District, and Correctional Managed Health Care Committee. 

Austin, TX: The Commission, 2024. 189p.

By Besiki Luka Kutateladze, R. R. Dunlea, Don Stemen, & Melba Pearson

The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices. The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices. The prosecutorial discretion to charge and amend charges is vast and rarely studied. While individual prosecutors determine charges based on the statute and the facts of a case, their interest in gaining leverage in plea bargaining, securing conviction, and maintaining a positive relationship with law enforcement may affect charging decisions. In this brief, we examine charge reductions at case filing and post-filing across 12 prosecutorial offices that collect data on both phases of charging decisions. We provide an initial effort to establish office typologies based on the frequency and timing of charge reductions. In general, reducing felonies to misdemeanors at the case screening stage lessens the need for charge reductions at subsequent stages of case processing. Yet several notable exceptions exist: some offices seldom reduce charges, while others do so frequently at both stages of case processing. We hope this brief generates additional discussions—both internally within prosecutorial offices and externally with policy groups and communities—about the benefits and shortcomings of existing charging practices.

Prosecutorial Performance Indicators, 2023. 7p.

By Oli Hutt, Head of Analytics | Greg O’Meara, Analyst

Rising demand and squeezed budgets over the past decade have left the criminal justice system (CJS) struggling to manage day-to-day. Changes to address a specific issue in one agency cascade unintentional negative consequences, creating friction elsewhere which slows cases and reduces the likelihood of successful outcomes. Better modeling of the systemic impact of individual agency choices is required to prevent the system from lurching with every change. The lack of a joined-up accountability structure severely hinders the efficacy of the CJS as a whole. Whilst individual agencies have a common aim, their objectives and resources are often unaligned or even in direct conflict. This impacts on victims, witnesses, and defendants who experience a highly fragmented, frustrating, and stressful process. Cooperation is held back by a lack of basic data sharing. Better standardization and coordination is needed on basics such as data format, transfer, frequency, etc.) and co-design of systems to enable more joined-up working. A duty to share data should be considered as a way to drive greater cooperation across the CJS. Practitioners from across the CJS are clear on what needs to change to make this happen. However, the willingness of agencies to work together is limited- in part because they lack the resources required. There are success stories, but these are typically localized and not embedded. Yet there is cause for hope. Better use of technology can enable better decision-making and improve efficiency and effectiveness; our recommendations are focused on these objectives. Relatively minor investment would deliver targeted solutions e.g.- digital devices in prisons and courts, redaction tools for police and data sharing agreements. By reducing data entry and data error, these would free up police and prison officer time and remove delays in data sharing across the CJS. However, these require the central government to invest to realize the systemic benefit they could deliver. Technology also offers relief to recruitment and morale issues by automating standard processes that are inconsistently applied and time-consuming to learn, and by removing the burden on staff often required to work outside their skill set. Agencies should recruit and retain specialist (particularly technical) staff rather than relying on current staff to cover these needs inefficiently. Longer-term, more fundamental, systemic change is required, including a single accountability structure for the entire CJS; a victim/witness-centric design that maximizes engagement throughout the process and leads to swift and fair outcomes for all through system-wide case management and data sharing. These longer-term requirements should not stop the government from progressing the changes outlined above, and other recommendations that can be implemented immediately at a relatively low cost. The greatest risk facing the criminal justice system is inaction

London: Crest Advisory, 2022. 42p.

By Amanda Kraus, Elizabeth Clelan, Heather Wolters, Patty Kannapel

This study was sponsored by the Office of the Executive Director for Force Resiliency within the Office of the Under Secretary of Defense for Personnel and Readiness to address two taskings from the FY 2020 National Defense Authorization Act (NDAA):

1. Establish criteria for determining when to review data indicating that racial, ethnic, and gender (REG) disparities in military justice outcomes may exist and provide guidance for how to conduct that review.

2. Conduct an evaluation to identify the causes of identified REG disparities and take steps to address them.

To address the first tasking, the study team combined emerging best practices from the civilian criminal justice system (CCJS) with a review of the military justice system (MJS) to create guidance for data collection, analysis, and reporting that will allow the services to use administrative data to conduct ongoing assessments of how members of all REG groups are treated within the MJS. To address the second tasking, the team used multivariate statistical techniques to analyze available data with the goal of measuring REG disparities in MJS outcomes, holding constant other relevant factors. This report addresses the first tasking; the second tasking is addressed in a companion report titled, Exploring Racial, Ethnic, and Gender Disparities in the Military Justice System.

GUIDING CONCEPTS

To guide our approach to addressing the NDAA tasking, we drew on four concepts related to justice and bias and considered their implications for data collection and analysis.

DISTRIBUTIVE VERSUS PROCEDURAL JUSTICE

Distributive justice relates to the distribution of outcomes within a community. In the MJS context, distributive justice relates directly to REG outcome disparities and suggests that the services should collect data to determine whether people who are the same except for their REG characteristics experience the same MJS outcomes. Procedural justice relates to the system that generates the outcomes. Procedural justice is defined in terms of the rules of the system and the extent to which they are applied consistently and impartially and communicated clearly. To assess procedural justice in the MJS, it is necessary to collect and analyze data on underlying processes, not just final outcomes. It is possible for procedural injustices to occur without generating outcome disparities, and it is possible for a system to be procedurally fair but to generate different outcomes for members of different REG groups. Thus, on their own, average outcome disparities are not complete indicators of bias. 

INDIVIDUAL VERSUS INSTITUTIONAL BIAS

Generally, bias is defined as prejudice for or against one person or group of people, especially in a way considered to be unfair. To cause MJS outcome disparities, such prejudices must be turned into biased actions, which can occur at the individual or institutional level. In the context of the MJS, individual bias is exercised by individual actors within the system through their individual decision-making discretion. It can be both explicit and implicit. Because individual bias is exercised through discretionary decision-making, finding evidence of it in data calls for identifying places in the system where individual discretion matters most to see if this is where disparities occur. Institutional bias is present when the policies, procedures, and practices that define a system consistently create positive or negative outcomes based an individual’s REG status. It can be intentional or unintentional. To identify the presence of institutional bias in the MJS, it is necessary to collect and analyze data that reflect outcomes that are guided by regulation or policy.

CONCERNS ABOUT BIAS IN THE MJS

Bias in the MJS—both real and perceived—can decrease the effectiveness of the MJS and thereby degrade good order and discipline and reduce warfighting readiness. There are widespread and persistent perceptions that the MJS is biased, and these perceptions exist both inside the military, especially among members of color, and outside the military, among the American public and members of Congress.

The broader social context in which concerns about bias are formed matters. Although the services have their own justice system and control over how that system is implemented, their members are drawn from the American population and public support is necessary for continued recruiting and funding. Thus, concerns about REG bias in the MJS will ebb and flow as they ebb and flow in the national culture and they may arise from within or without.

The quality and presentation of data and data analysis also matter. Over the years, analyses of MJS data have done little to alleviate concerns about bias. Given the persistence of these concerns, it makes sense to create a robust system for data collection, rigorous analysis, and appropriate reporting to enable detailed assessments of MJS outcomes and the policies and practices that produce them.

THE MJS

To identify points in the MJS where institutions and individuals apply discretion, as well as important MJS outcomes to study, we created a chart that maps how a case flows through four phases of the MJS—incident processing, pre-trial/pre-hearing, adjudication and sentencing, and post-trial/post-hearing—and identified key steps in each phase.

A main source of institutional discretion in the MJS lies outside the system. Given that servicemembers can enter the system if they are accused of disobeying a regulation, institutional choices about the nature and design of regulations will affect MJS outcomes. Individual discretion is more likely to be applied within the MJS, at different points by different actors. The most individual discretion rests with commanding officers during the incident processing phase and, in later phases, along the disciplinary path and the summary court-martial branch of the judicial path. Once a case is referred to special or general court-martial, discretion is spread across more people. Actors with significant discretionary power on the judicial path include convening authorities, who are military commanders with little or no legal training, and judge advocates, who are legal professionals serving as military judges and trial and defense counsels.

As a whole, the flowchart highlights the importance of considering the full range of outcomes because movement through the system is determined by the outcome at each successive step along the relevant path. The steps within each phase identify the important outcomes.

ADDRESSING MJS BIAS WITH ADMINISTRATIVE DATA

The primary benefit of using administrative data to measure REG disparities in MJS outcomes is that it creates an evidence-based picture of MJS outcomes that distinguishes between isolated incidents and widespread problems. To generate meaningful measures of these disparities, it is necessary to use multivariate analytical techniques that allow researchers to measure REG outcome disparities while accounting for other factors that affect MJS outcomes. The more relevant other factors that can be included in the model, the more likely it is to hold “all else” equal. If REG disparities still exist after accounting for other factors, it is likely that the outcome differences are directly related to REG. Such a finding does not prove that bias exists, but it takes the other factors off the table. The multivariate techniques we identified range in technical sophistication and resource requirements. Disaggregating raw data by multiple outcomes and factors is the easiest of the four approaches we identified, and it can be done by agency staff. While not as conclusive as approaches that control for multiple factors simultaneously, disaggregation provides a more complete picture than bivariate analysis and helps agency staff make informed decisions about where to focus more technical analyses and scarce analytical resources. Used together and on a regular basis, disaggregation and the more complicated approaches provide the basis for ongoing monitoring of REG outcomes to identify and address disparities before they become persistent or systemic. Existing MJS and other reporting requirements provide a natural schedule for conducting assessments and reporting their results.

Application of valid multivariate techniques requires detailed data. Current Department of Defense guidance directs the services to collect nearly all the desired data elements, so if the guidance is implemented, they should be well positioned to conduct meaningful assessments of MJS outcomes. There are two caveats to this conclusion. First, there may be gaps for information on investigations and disciplinary outcomes. Second, the services may not have the resources to implement the data collection guidance. It may be an unfunded mandate.

Finally, the tasking from the FY 2020 NDAA asked for criteria to determine when to further review data indicating that REG disparities in MJS outcomes may exist. There is no scientific or social consensus about which criterion to use or what level of disparity equates to bias. Therefore, the services should work with internal and external stakeholders to select multiple criteria based on the absolute size of a disparity, its statistical significance, and the number of people it affects.

RECOMMENDATIONS TO ADDRESS THE NDAA TASKING

We recommend that the services do not conduct detailed assessments of MJS data only in response to disparities measured by bivariate metrics. Instead, assessments should be conducted regularly using the blueprint provided by lessons learned from the CCJS:

Step 1. Work with internal and external stakeholders to identify issues of concern, set priorities, and develop decision-making criteria

Step 2. Create an analysis plan based on the concerns and priorities identified in Step 1

Step 3. Collect data on MJS outcomes (including nonjudicial outcomes) and relevant control variables in easy-to-use electronic records management systems and ensure they are regularly updated

Step 4. Execute the analysis plan from Step 2 using appropriate quantitative and/or qualitative methods

Step 5. Regularly and transparently report assessment results to all the stakeholders as appropriate

Step 6. Make policy decisions about how to address REG outcome disparities based on the established priorities and criteria

Arlington VA: CNA, 2023. 116p

By  Aayushma Bastola, Research & Data Fellow; Morgan Grizzle,, et al.

While in 2023 many other urban jurisdictions around the country began to see drops in homicides and other serious violent crime that had spiked postpandemic, the District of Columbia saw rates of violent crimes, like homicide and carjackings, continue to climb.1 That summer, D.C. lawmakers passed emergency legislation with provisions related to law enforcement and the prosecution and sentencing of crimes. In March 2024 the District passed permanent legislation, the Secure DC Omnibus Amendment Act of 2024 (“SECURE DC”), which included changes to D.C. law that had been part of prior expired emergency legislation as well as several new provisions.2 Given the importance of the public’s community safety concerns and the significance of SECURE DC policy changes, this year’s D.C. Criminal Legal System Overview is different from prior editions. This report highlights several aspects of SECURE DC and provides data analyses that can be used as a baseline with which to benchmark changes in crime and incarceration that may be related to the law’s provisions. This Overview also offers data to provide an overview of the District’s criminal legal landscape and to identify who is most impacted by D.C.’s legal systems. For example, this report highlights the growing costs of incarceration and policing in D.C. — reaching over $1 billion for the first time — and the disproportionate number of Black people who are justice-involved, including as victims of crime, in the District. Finally, this report will show that there have been some encouraging changes in terms of public safety from preliminary data for the first half of 2024, including both before and after the passage of SECURE DC. This is the fourth report in which the Council for Court Excellence (CCE) has offered a snapshot of the District’s criminal legal systems. As with past reports, CCE hopes readers find this information useful as we all work to create a safer, healthier, thriving D.C.  

Washington, DC: Council for Court Excellence , 2024. 40,p.

By Jim Whitehead , Richard Franklin, Tracey Mahony   

Not finding a murder victim poses challenges for homicide investigators in solving crime, including determining where to search for the deceased’s body. Existing literature focuses on locating offenders through criminal profiling; however, this is largely based on identification through forensic evidence found at the murder site or where the victim was located. This paper considered the challenge of locating a deceased victim from the perspective of search coordinators assisting homicide investigations. Could reference to previous homicide cases provide patterns and trends that may assist in locating disposed victims quicker, thus aiding in preserving vital physical evidence and providing expedient closure for the community? Methods: Through generation of a dataset utilising all Queensland Police recorded homicides from 2004 to 2020 inclusive, statistical analysis was conducted using SPSS™ software to identify common trends and characteristics of victim disposal. These identified commonalities were used to develop the Disposed Homicide Victim Matrix (DHVM), and Search Coordinator Principles, as tools to assist search coordinators in future relevant cases. Results: The study identified four (4) key commonalities observed in the dataset, (1) East is the predominant direction for victim disposal; (2) The offender’s vehicle was the most common method of victim transport followed by carrying/dragging; (3) concealment with leaf litter and local debris was the norm, followed by no attempt at concealment; and (4) victims were moved less than 50 m from a road or track after transport. Conclusion: The DHVM can assist police search for these victims by narrowing down potential search locations. Finding a victim has implications throughout the community, providing evidence that could secure a conviction, allowing a measure of grief closure to the co-victims, and inspiring confidence in police.     

Forensic Science International: Synergy 8 (2024) 10045  

Authors Brandon L. Garrett, Duke Law School Follow, Adam M. Gershowitz, William & Mary Law School Follow, Jennifer Teitcher, Duke Law School

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations are intentional or accidental, and a host of related questions.

This Article fills a gap in the data and literature by analyzing five years of Brady claims—over 800 cases—raised in state and federal courts. We coded each case for more than forty variables to answer big-picture questions like how often Brady claims are successful and which courts are most likely to grant relief. We also studied more intricate questions such as the types of crimes and evidence at issue, whether judges deemed violations intentional or accidental, and whether judges chastised or disciplined prosecutors for failing to disclose evidence.

Our study revealed some important and surprising findings. Despite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10% of the cases in our study. Prosecutors, not police, were responsible for most violations and they were almost never referred to the Bar for discipline. While federal prosecutors are supposed to be elite highly trained lawyers, they were responsible for a disproportionate share of Brady violations. And while the federal courts are lauded as the protector of civil liberties, it was state courts that granted relief more frequently, often on direct review rather than in habeas corpus proceedings as scholars would have expected.

These findings and many others—such as petitioners having to wait on average ten years for relief for Brady violations—demonstrate that we continue to have egregious prosecutorial misconduct problems in the United States and that further study is needed. To that end, this project not only reports significant data, but also is the first step in the creation of a searchable database that we are creating to empower other researchers to further analyze how Brady claims are being litigated and adjudicated.

114 J. Crim. L. & Criminology 185 (2024).

By Suzanne M. Strong and Mark Motivans,

This report provides statistics on the number of RICO investigations concluded and persons investigated by U.S. attorneys from fiscal year (FY) 2012 to FY 2022. It also presents statistics from FY 2018 to FY 2022 on investigations concluded by U.S. attorneys with multiple persons investigated; persons prosecuted, adjudicated, and sentenced with a RICO violation as the most serious offense; persons convicted with a RICO violation as the most serious offense or as a secondary offense; and conviction rates by state or territory.

Washington, DC: Bureau of Justice Statistics (BJS), 2024. 11p.

By Christopher Slobogin

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

Unpublished paper: (August 15, 2024). 

By Scottish Government, Safer Communities Directorate

Summary

• Research shows further evidence on the negative impact of rape myths and misconceptions on the complainer, but also raises concerns about perceived fairness by legal professionals when using single judge trials.

• Overall, there is a lack of empirical research comparing modes of trial for rape cases, which makes it difficult to draw any robust conclusions in relation to their impact on the complainer, rights of the accused, public confidence in the justice system and conviction rates.

• That said, there are some tentative indications that the complainer experience may be improved by a single judge trial model, but it might be more dependent on wider court procedures and approaches to (cross) examination than the mode of trial itself.

• Providing a written reason of verdict is seen as a clear advantage of single judge trials, both for the complainer and accused.

• Studies suggest that considering the rights of the accused should include agreeing on the justifications/criteria for single judge trials, establishing clear procedures to ensure consistency and transparency and addressing (implicit) bias and diversity in the judiciary.

• Significantly, where single judge trials for serious offences have been adopted, e.g. in countries such as New Zealand, Australia, Canada and the United States, it is by choice of the accused. There were no instances found of jurisdictions introducing alternatives to jury trials specifically for rape cases.

• There is no clear data on the effect of changing mode of trial on public confidence in justice system, although studies have shown a clear support of the public for the jury system. These studies however, did not ask directly about changing mode of trial in specific cases, such as for rape offences.

• The evidence is mixed on conviction rates, from lower, to no difference, to higher rates of conviction for cases tried by single judge, although, again, the evidence is limited and not specific to rape cases.

• Literature discussing mixed panels of professional and lay judges point to the possibility to mitigate concerns about the lack of community engagement and potential bias with one decision-maker, while preserving some of the advantages of a single judge trial such as clearer judicial direction and a reasoned written verdict.

• Overall, the literature suggest that to understand the impact of a change in mode of trial, it is important to take into account how a new mode of trial interacts with already established procedures in the criminal justice system. To improve the complainer experience additional reflection would be required on pre-trial and cross-examination procedures and training given to legal professionals.

• Taking into account that the evidence presented is limited and not always specific to sexual offences, it is difficult to make a clear translation to the context of a Scottish pilot for rape offences. A pilot can offer valuable and much needed empirical data and insight on the effects of a change in mode of trial.

Edinburgh: Scottish Government Safer Communities Directorate, 2023. 40p.

By Dubber, Markus Dirk

In The Sense of Justice, distinguished legal author Markus Dirk Dubber undertakes a critical analysis of the “sense of justice”: an overused, yet curiously understudied, concept in modern legal and political discourse. Courts cite it, scholars measure it, presidential candidates prize it, eulogists praise it, criminals lack it, and commentators bemoan its loss in times of war. But what is it? Often, the sense of justice is dismissed as little more than an emotional impulse that is out of place in a criminal justice system based on abstract legal and political norms equally applied to all. Dubber argues against simple categorization of the sense of justice. Drawing on recent work in moral philosophy, political theory, and linguistics, Dubber defines the sense of justice in terms of empathy—the emotional capacity that makes law possible by giving us vicarious access to the experiences of others. From there, he explores the way it is invoked, considered, and used in the American criminal justice system. He argues that this sense is more than an irrational emotional impulse but a valuable legal tool that should be properly used and understood.

New York: NYU Press, 2006.