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 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.

By: Temple, Kathryn D.

A history of legal emotions in William Blackstone’s England and their relationship to justice William Blackstone’s masterpiece, Commentaries on the Laws of England (1765–1769), famously took the “ungodly jumble” of English law and transformed it into an elegant and easily transportable four-volume summary. Soon after publication, the work became an international monument not only to English law, but to universal English concepts of justice and what Blackstone called “the immutable laws of good and evil.” Most legal historians regard the Commentaries as a brilliant application of Enlightenment reasoning to English legal history. Loving Justice contends that Blackstone’s work extends beyond making sense of English law to invoke emotions such as desire, disgust, sadness, embarrassment, terror, tenderness, and happiness. By enlisting an affective aesthetics to represent English law as just, Blackstone created an evocative poetics of justice whose influence persists across the Western world. In doing so, he encouraged readers to feel as much as reason their way to justice. Ultimately, Temple argues that the Commentaries offers a complex map of our affective relationship to juridical culture, one that illuminates both individual and communal understandings of our search for justice, and is crucial for understanding both justice and injustice today.

New York: NYU Press, 2019.

By William A. Galston

Author and Publication: Written by William A. Galston, "Justice and theHuman Good" was published by The University of Chicago Press in 1980.

Main Themes: The book explores justice and the human good, discussing utopian thought, elements of the human good, and principles of justice.

Philosophical Approach: Galston adopts aquasi-Aristotelian approach, integrating ethical naturalism and Aristotle's analysis of justice.

Critical Reception: The book includes extensive critiques and responses to various philosophical arguments, aiming to address contemporary political and moral issues.

University of Chicago, 1980, 324 pages

By F. A. Hayek

Critique of Social Justice: Hayek argues that the term "social justice" is empty and meaningless, often used without a clear definition or understanding.

Justice and Market Processes: He believes that justice applies to individual conduct and not to the outcomes of market processes.

Abstract Rules: Emphasizes the importance of abstract rules in a free society, which serve unknown particular ends and facilitate the pursuit of individual goals.

Spontaneous Order: Hayek highlights the spontaneous order of the market, where individuals' actions lead to an efficient allocation of resources without central planning.

University of Chicago Press, 1978, 195 pages

By Matthew B Robinson

The book provides a thorough summary of the relationships between race, ethnicity, crime, and justice practice and discusses the existence of disparities in criminal and juvenile justice practices and highlights the impact of race and ethnicity on the law, policing, courts, and corrections.It addresses the issue of institutionalized discrimination against different racial and ethnic groups in American institutions, including the criminal law and mainstream media.

Carolina Academic Press, 2021, 317 pages

By Oceana R. Gilliam, Brett Taylor, Lindsey Price Jackson, and Jarred Williams

In partnership with the Santa Barbara District Attorney’s Office, this study looks at the potential for offering meaningful alternatives to traditional prosecution for people accused of felony offenses in Santa Barbara, Los Angeles, laying out key aspects of planning a successful diversion program.

New York: Center for Justice Innovation. 2023, 40pg

By The Center for Justice Innovation

Within the context of a national movement toward criminal legal system reform— including the use of alternatives-to incarceration (ATIs) for non-violent and drug cases—legal responses to crimes of violence still largely involve incarceration. Few jurisdictions apply alternatives to address violent crime, instead continuing to rely on carceral approaches, despite evidence pointing to the overall negative effects. The current study explores alternative responses to crimes of violence outside of incarceration. Specifically, this document presents 

  Specifically, this document presents findings from five in-depth case studies. In it, we highlight some of the unique approaches to responding to violent crime implemented in each site, in hopes that they may prove instructive for other jurisdictions seeking to explore or further develop alternative approaches to crimes of violence. The featured approaches are implemented at various stages of the criminal legal system process—from after charging and the initial appearance, to pretrial and plea, to post-plea, pre- sentencing, to post-conviction and sentencing. We explore a pretrial  supervision program, restorative justice programs, pretrial diversion programs, specialty courts, and post-conviction resentencing initiatives. Each study also includes specific recommendations made by those in the featured site and based on the information learned from the featured site. The companion piece, A New Approach: Alternative Prosecutorial Responses to Violent Crime, presents a comprehensive summary of study findings, along with resultant recommendations for policy and practice. 

New York: Center for Justice Innovation. 2024, 41pg

By Jennifer A. Tallon

To effectively address the problem of mass incarceration, prosecutors must adopt ways to respond to cases involving violence that don’t rely on jails and prisons. The "Prosecutors and Responses to Crimes of Violence: Notes from the Field" document offers in-depth case study findings and is intended as a tool for jurisdictions looking to expand alternative approaches to crimes of violence.

New York: Center for Justice Innovation. 2024, 18pg

By Fred Butcher, Amanda B. Cissner, and Michael Rempel

  Mandatory minimum sentencing laws gained traction in the late 1970s and early 1980s amidst rising crime rates, a “tough-on-crime” push, and punitive enforcement related to the “War on Drugs.”. Under mandatory minimums, individuals receive a stipulated amount of prison time, with no accounting for the circumstances of the offense or the characteristics of the person charged. As minimums typically flow from the charge and a person’s criminal history, they confer outsized power on prosecutors; in plea negotiations, prosecutors can wield the threat of a higher charge with a minimum for someone hesitant to accept a plea. Judges also lose discretion, and defense attorneys lose opportunities to present mitigating circumstances. In 1984, the federal Sentencing Reform Act established the U.S. Sentencing Commission, requiring that federal courts impose sentences within a range specified by the Commission and eliminating parole for federal charges. Many states took their cue from federal efforts, introducing minimum sentences and restricting the ability of parole boards to reduce sentences through good-time or earned-time credits. Proponents viewed sentencing guidelines (including mandatory prison) as a limit on judicial discretion and a means to eliminate disparities in sentencing. They touted the idea of “truth in-sentencing”—giving people charged, crime survivors, and the public an accurate idea of how much time those sentenced would actually serve. Minimums also arose in response to the perception—ginned up at the time and since debunked—that the more rehabilitative approach of the 1960s had failed to tamp down crime rates and recidivism. Recent decades, however, have seen mandatory minimums fall into disrepute. Several decades of harsh sentencing policies contributed to the astronomical growth of the U.S. prison population, which peaked at 1.6 million people held on an average day in 2009, a total which omits about 750,000 additional people held in local jails that year. The rapid consolidation of mass incarceration over these decades did not increase safety; evidence points instead to a modest increase in recidivism among individuals subject to custodial sanctions. Similarly, mandatory minimums and other sentencing laws passed in the 1970s and 1980s increased (and here more than modestly) persistent racial disparities in the criminal legal system. Black Americans today continue to be disproportionately represented in prison populations and are more likely to be charged with offenses subject to mandatory minimums—leading to longer sentences—than white Americans.8 According to the most recent analysis by the U.S. Bureau of Justice Statistics, among those detained in prisons nationwide, there were nearly identical Black and white populations (34% vs. 32%). Considering their representation in the general population, Black people are imprisoned at a rate five times greater than white people. Over the past two decades, numerous states, including New York, have weakened or eliminated mandatory minimum sentencing laws.10 Many of these reforms focused on eliminating minimums that apply primarily to drug offenses. This narrow focus has neglected much of the imprisoned population, as drug offenders make up a small percentage of those in prison. In 2022, the Vera Institute of Justice estimated just over half of New York’s approximately 300,000 prison sentences were the result of mandatory minimum sentencing laws. Declaring the laws “morally and fiscally unsustainable,” the organization called for their abolition.

New York: Center for Justice Innovation. 2022, 31pg

By Sam J. Merchant

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders. Some have even suggested a racial or political motivation for lighter sentences. Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason—the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021. There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.” English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order. Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense. This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum. To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

Drexel University Thomas R. Kline School of Law Research Paper Series. 2024, 41pg

By Samuel W. Buell

Fifteen years after the largest financial scandal and economic crisis in a century, discussion of the problem of corporate crime too often borders on cliché. Endless calls from Congress, the media, the public, many scholars, and even the Justice Department itself, to recommit, over and over, to locking up more managers and executives to deter corporate wrongdoing portray the problem as relatively straightforward and blame legislative and executive failure of will. Through examination of the litigation record from over 100 prosecutions spanning the period from the 2008 financial crisis to the present, this Article presents evidence that relying on individual prosecutions to deter the most significant corporate crimes, especially those involving fraud in the financial sector, is less promising than believed. Structural features of crimes in the largest corporate organizations have made securing individual convictions and imprisonment, especially at senior levels, a chancy project for prosecutors. The Article further argues that its evidence relating both to failure rates and causes of those failures should point policymakers and enforcers beyond hackneyed calls for perp walks and prison and towards deeper thinking about a full suite of preventive tools, especially regulatory design.

Wake Forest Law Review, Vol. 59. 2024, 78pg