By The Irish Penal Reform Trust

Piecing It Together: Supporting Children and Families with a Family Member in Prison in Ireland assesses progress on a series of recommendations made by IPRT in "Picking up the Pieces" in 2012. These recommendations were made to Government, the Courts and Courts Service, the Irish Prison Service, the Department of Education, and media, among others. While the new report details some pockets of good practice in Ireland, it highlights a number of significant gaps, including: limited national recognition of the rights of children with a family member in prison; the continued lack of any national support services for these children; visiting conditions that are not child-friendly; limited data and research; and stigmatisation of these children and their families. As we approach the tenth anniversary of the 2012 report, IPRT calls for the implementation of these outstanding recommendations, as well as the new recommendations made in this report, by the relevant assigned stakeholders.

The recommendations made in the report are grouped into 7 overarching recommendations:

1. Increase National Recognition of the Rights of Children with a Family Member in Prison

2. Establish a National Support Service for Children and Families with a Family Member in Prison

3. Improve Prison Visiting Procedures and Conditions for Children and Families

4. Enshrine in Law and Practice the Principle of “Prison as a Last Resort” for Primary Caregivers

5. Improve Data Recording on Children Affected by Imprisonment

6. Challenge Stigmatisation of Children and Families with a Family Member in Prison

7. Promote and Facilitate Family Involvement during the Period of Imprisonment

Dublin: Irish Penal Reform Trust, 2021. 60p.

By the Irish Penal Reform Trust

 In recent years there has been increasing recognition of children of imprisoned parents as a specific group of vulnerable and marginalised children with particular needs and of the detrimental impact of parental imprisonment on them. While there has been less focus on the specific impact on children when their mother is sent to prison, several studies have found that, while less common, maternal imprisonment can be significantly more disruptive than paternal imprisonment. This is largely because women are more often the primary caregivers for their dependent children. When fathers are imprisoned, the mother usually continues to care for any children. However, studies have shown that when mothers are sent to prison, the family is more likely to be broken up, with children being placed with other family members or into State care. The impact of maternal imprisonment has wider implications as a result, including on the women themselves, their families, and the broader community. Despite the well-documented impacts of parental, and specifically maternal, imprisonment on children and the clear obligations within the international human rights framework to consider children when their parents or primary caregivers come into conflict with the law, there are very few court systems that actively require courts to consider children at sentencing or when determining pre-trial measures. Additionally, when mothers are sent to prison, there are significant data gaps globally in understanding the numbers of children impacted, and a corresponding lack of effort made to mitigate against the potential negative impacts on them. Where data is collected, it is usually facility-specific with no efforts to collate data nationally or coordinate responses across different agencies. The Irish Prison Service (IPS) and the Probation Service have identified the risks associated with maternal imprisonment, noting that, ‘[t]he outcomes for children whose mothers have experienced prison are of major concern. Children of women prisoners frequently exhibit several behavioral and psychological problems and there is an increased likelihood of them becoming offenders themselves.’ Despite this, there has been very limited examination of the numbers and experiences of mothers imprisoned in Ireland and their children. While the IPS, the Probation Service, and other associated agencies appear to recognize the need to support children of mothers in prison – indeed these agencies have made efforts to develop support programs – concern remains at the lack of attention given, at the point of sentencing, to the caregiving responsibilities of women and the best interests of their children. The findings of this research also point to a lack of national efforts to coordinate amongst different stakeholder agencies to reduce the negative impacts of maternal imprisonment on children

Dublin: Irish Penal Reform Trust, 2023. 52p.

By Faiza Chappell

In the past decade, stakeholder groups have formed across the country to achieve higher-quality postsecondary education in prisons, enhance student outcomes, and push policy changes. This report describes the benefits of emerging stakeholder engagement strategies and trends in stakeholder collaboration. It also serves as a guide to building stakeholder coalitions in the field of postsecondary education in prison. Prison education programs (PEPs) are offered by institutions of higher education and postsecondary vocational institutions that have been approved to operate in a correctional setting. The U.S. Department of Education has requirements that PEPs must follow in order for incarcerated students to access Pell Grants. These requirements include input from a variety of stakeholders to evaluate PEPs and confirm that they are operating in the best interests of the students. After conducting a national scan of existing consortia, the Vera Institute of Justice (Vera) analyzed the information presented in this report from 23 consortia. Vera found that tapping into the expertise of various stakeholders is a crucial element in ensuring high-quality education practices for incarcerated students.

Key Takeaway

Stakeholder groups provide a foundation built on a common mission, with substantive achievable goals and structures for the work to thrive, allowing stakeholders to collaborate effectively. Stakeholder feedback is a critically important practice that should be at the forefront in the expansion of postsecondary education in prison.

New York: Vera Institute of Justice, 2024. 28p.

By Niloufer Taber, Amanda Nowak, Maurice Smith,   Jennifer Yang, Celia Strumph   

Pell Grant restoration took effect on July 1, 2023, making incarcerated people in the United States eligible for need-based federal postsecondary financial aid for the first time in nearly 30 years. Since the launch of the Second Chance Pell Experimental Sites Initiative (SCP) in 2016, more than 45,000 incarcerated students have enrolled in SCP programs. Today, there are more than 750,000 people in prison eligible to enroll in a postsecondary program. As the landscape of postsecondary education in prison evolves, so does its potential. In this report, the Vera Institute of Justice offers a snapshot of national progress toward implementation using the interconnected domains of quality, equity, and scale through a “balanced scorecard” approach. Drawing on data collected from surveys to SCP colleges and corrections agencies, the report aggregates individual responses to evaluate the adequacy and the system of education offered to incarcerated people. The result is a snapshot of the progress colleges and corrections agencies have made over the first year of this new era of access and opportunity.

‍Key Takeaway: Serving students in prisons requires collaboration and cooperation across a range of stakeholders. Vera assessed quality, equity, and scale through data aggregated at the level of each jurisdiction. The measures in this report are an invitation

New York: Vera Institute of Justice, 2024. 64p.

By Lewis Mudge

 In April 2021, a transitional military council headed by Mahamat Idriss Déby took control of Chad following the death of his father, late President Idriss Déby Itno. This triggered demonstrations, including by civil society and opposition party members, to demand a return to civilian rule. The authorities violently cracked down on such protests which culminated on October 20, 2022, when thousands of people demonstrated against an extension of the transitional government by two years. On this day, remembered as “black Thursday,” security forces fired live ammunition at protesters, killing and injuring scores. Hundreds more were detained and transferred to Koro Toro, a high security detention facility managed by the government and located about 600 kilometers north of N’Djamena, the country’s capital, in the desert. Some detainees died en route to Koro Toro, others died in the prison. In “Worse than hell”: Death and Torture at Chad’s Koro Toro Prison, Human Rights Watch documents the serious human rights violations experienced by protesters during their transit from N’Djamena to Koro Toro and in the prison itself. Based on interviews with survivors and witnesses as well as on satellite imagery, it exposes abuses that former detainees, including children, detained in connection to the October 20 protests, faced from the start of their detention until their release. These include forced labor, torture and inhuman treatment and denial of medical treatment, sometimes leading to deaths in custody, as well as arbitrary detention and unfair trials. The report provides insight into the deplorable – and unlawful – prison conditions and management at Koro Toro prison and makes recommendations to Chad and its partners for redress.  

New York: Human Rights Watch, 2024.  98p.

By Mia Bird, Mia, Alissa Skog and Molly Pickard

 The California prison system is designed to house and provide rehabilitative services to people sentenced to prison for felony offenses. Although most people in prison are serving multi-year sentences, 39.6% of people released during the past ten years spent one year or less in prison custody. The proportion of people released after these short stays (of one year or less) increased from about one-third of all releases in 2014 to about one-half in 2023. In 2020 and 2023, the Committee on Revision of the Penal Code recommended that short prison stays of one year or less be served in county jails. This recommendation was designed to build on California’s Public Safety Realignment Act from 2011 which required people convicted of less serious felony offenses to serve their sentence in county jail instead of prison. The Legislature has not yet adopted this recommendation, but given the State’s focus on reducing prison system costs while maintaining public safety, it remains a policy option. In this fact sheet, we explore how the number and share of people released after short stays has changed over time in California. We also explore the demographic, offense, sentencing, and county characteristics of people who have short stays in prison. To do so, we draw on data from the California Department of Corrections and Rehabilitation (CDCR) for the years 2014 through 2023. KEY FINDINGS Short stays have increased as a share of all releases since 2014. Over the past decade, 39.6% of all people released from prison had stays of one year or less. However, the proportion of those with short stays increased over this period from 36.3% of all releases in 2014 to 49.5% of all releases in 2023 (Figure 1). During this period, 15.4% of people released had very short stays of six months or less. The share of people released with very short stays also increased, from 13.4% in 2014 to 21.2% in 2023. This increase in short stays was concentrated in the period following the COVID-19 pandemic. During the first year of the pandemic, people may have spent more time in jail before they were convicted, sentenced, and transferred to prison. This was due to delays in court processing and suspensions of prison transfers. In addition, public health releases to reduce the spread of COVID-19 may have also led to shorter stays in prison.1 The share of people released from short stays continued to increase in 2022 and 2023. It remains to be seen whether this trend will continue in 2024.   

Los Angeles: California Policy Lab, 2024. 7p.

By Sian Galsworthy

In 2019 Joseph McCann was sentenced to 33 life sentences for committing violent and sexual offences whilst subject to supervision by the National Probation Service (NPS), following his release from prison on license earlier that year. The subsequent Serious Further Offence (SFO) report prompted an independent review from His Majesty’s Inspectorate of Probation (HMIP) which put forward several recommendations for change, to ensure the probation service could safely and effectively protect the public. This report presents the findings from an evaluation of His Majesty’s Prison and Probation Service (HMPPS) Complex Cases pilot within the East of England Probation Region. Complex Cases have been defined as cases that meet six of eight specified criteria, which deem them complex and challenging for Probation Practitioners (PP) to manage. The pilot process consisted of triaging those cases that met six of the eight pre-determined criteria. If the practitioner required further support with their case following triage, the case was then referred to and heard at a multi-disciplinary panel which consisted primarily of senior members of Probation and Prison staff who could advise on how to best manage the case. The pilot formed part of the commitment to address the recommendation (8) put forward in the Joseph McCann HMIP report which was to: “Ensure probation staff have adequate time to become familiar with complex cases for which they assume responsibility” (HMIP, 2020) This evaluation has explored the views and experiences of those who have participated in the Complex Cases pilot, to identify how its development and subsequent roll out has been perceived so far, and if there is any early/indicative learning which can be identified for future scale-up of the pilot. The pilot commenced in the Summer of 2021, it is still active and expanding across the pilot Probation Region.   The objectives of this evaluation were: 1. To explore what has been successful about the initial roll out of the Complex Cases Pilot 2. To explore which aspects of the Complex Cases Pilot require improvement 3. To explore the effects of the Complex Cases Pilot on Probation Practitioners sense of confidence in managing the complexities of the case and practice/case management

His Majesty’s Prison and Probation Service , 2024. 60p.

By Sarah Aukamp

Contraband in correctional facilities can create challenges for the safety of incarcerated people, staff, and the general public. However little is known about the factors that affect the types and amounts of contraband entering facilities. To address this gap, researchers from the Urban Institute and CNA Corporation conducted a study of prisons across six states and assessed the risk factors that correlate with the recovery of three types of contraband: drugs, cell phones, and weapons. This summary describes the findings of that study and presents implications for practice. Findings show that factors like a prison’s security level (e.g., maximum, minimum), population (e.g., size, gender), staff composition, and available programming (e.g., substance use treatment) were all correlated with the number of contraband recoveries. Some risk factors were found to be common to all types of contraband, whereas others occurred only with certain types. Understanding the facility-level characteristics that affect types and levels of contraband can inform interdiction efforts, creating safer facilities for all stakeholders.

Washington, DC: The Urban Institute, 2024. 4p.

By Anna Anderson

This National Consumer Law Center (NCLC) report provides an overview of the carceral medical debt problem and policy recommendations and solutions to address the issue. The report provides background on the nature of the carceral medical debt, including the complex healthcare needs of people who are incarcerated, what fees are assessed and why, how these fees impact health outcomes and lead to medical debt, how carceral medical debt affects families and reentry, and private equity and for-profit contractors’ roles in this problem. The report includes an extensive review of the common sources of medical debt and how these debts are collected. It details recent policy victories in the effort to eliminate carceral medical debt, as well as some troubling setbacks. The report concludes with consumer-focused policy reforms to address medical debt related to incarceration.

Boston: National Consumer Law Center, 2024. 46p.

By Lee Kovarsky

Before their executions, condemned people suffered intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this article, I show that American institutions administer pre-execution confinement as nonpunitive detention, and I explain the consequences of that counterintuitive status. A nonpunitive paradigm curbs, at least to some degree, the dehumanization, neglect, and isolation that now dominate life on death row. It is also the doctrinal solution to a longstanding puzzle involving confinement, execution, and the Eighth Amendment. To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. By the time the state executes its condemned prisoners, they will have spent about two decades in such conditions—up from two years in 1960. The state distributes suffering across this prisoner cohort in ways that bear little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment. Virtually everyone makes the punitive assumption, but there are two reasons rooted in penal theory why they should not. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering collateral to the state’s interest in incapacitating those who face execution. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would be distributed across the death-sentenced prisoner cohort arbitrarily. There is a well-developed body of constitutional law capable of absorbing a nonpunitive version of pre-execution confinement. Under that law, when the state detains people primarily to incapacitate them, that detention is regulatory—not punitive. Due process, rather than the Eighth Amendment, constrains regulatory detention. A nonpunitive approach would reduce unnecessary suffering because due process rules more stringently constrain the state’s treatment of its prisoners. Such an approach would also give the U.S. Supreme Court better answers to the difficult Eighth Amendment questions that have vexed the Justices for decades. 

Virginia Law Review [Vol. 109:1429, 2023.

By Lee Kovarsky

There is a widely held belief that to delay executions, American death-row prisoners strategically defer litigation until the eleventh hour. After all, the logic goes, that the incentives for prisoners who face the death penalty differ from those who do not. Noncapital prisoners typically try to move the terminal point of a sentence (release) forward, and capital prisoners typically try to push that point (execution) back. This theory of litigant behavior—what I call the “Strategic Delay Account,” or the “SDA”—underwrites an extraordinarily harsh institutional response. It primes courts to discount real constitutional grievances and to punish participating lawyers, and it spurs legislatures to restrict crucial remedies. In this article, I explain that the SDA inaccurately describes condemned prisoner behavior, both because it assumes a non-existent incentive structure and because it ignores the major structural causes of delayed litigation. First, deferred litigation is risky, and fortune disfavors the bold. Procedural doctrines that operate across post-conviction law strongly incentivize the promptest conceivable presentation of claims. Second, prisoners often omit challenges from early rounds of litigation not because they have done so strategically, but instead because some claims are inherently incapable of being asserted at that time. Third, the volume of end-stage litigation reflects the comprehensive failure of American jurisdictions to provide adequate legal services; condemned prisoners are often functionally unrepresented from the moment early-stage proceedings conclude until the state sets an execution date.

New York University Law Review Issue: Volume 95, Number 5, November 2020

By The U.S. National Institute of Justice 

Title I of the First Step Act of 2018 (FSA) required the Attorney General, in consultation with the Bureau of Prisons (FBOP) and the National Institute of Justice (NIJ), to develop and implement a risk and needs assessment system. In 2020, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) was developed and implemented, with the intent of assessing recidivism risk and determining eligibility for early release time credits outlined by the FSA. Also mandated was the development of a dynamic needs assessment system. Utilizing existing and validated assessment items and scales, the FBOP created Standardized Prisoner Assessment for Reduction in Criminality (SPARC-13), which consists of 13 domains: Anger/Hostility, Antisocial Peers, Antisocial Cognition, Education, Family/Parenting, Finance/Poverty, Medical, Mental Health, Recreation/Leisure/Fitness, Substance Use, Trauma, Work, and Dyslexia (Federal Bureau of Prisons, 2022). Section 3631 of Title I of the FSA requires that both the PATTERN and SPARC-13 be reviewed and validated on an annual basis. To help fulfill these requirements of the FSA, NIJ announced a competitive Consultant Statement of Work (SOW) and selected three consultants to conduct the annual review and revalidation of the SPARC-13. NIJ contracted with Dr. Grant Duwe, Dr. Zachary Hamilton, and Dr. Alex Kigerl to review and revalidate the SPARC-13. This report reviews and validates the SPARC-13 by conducting analyses relating to internal content, convergent/divergent, latent structure, and concurrent validity. It also presents the results from a process evaluation of the FBOP’s development and implementation of the SPARC-13.

Washington, DC: U.S. National Institute of Justice, 2024. 69p.

By Emily Lupton Lupez,  Steffie Woolhandler, ; David U. Himmelstein

Growing old and dying inside: improving the experiences of older people serving long prison sentences Dr Jayne Price In partnership with the Building Futures Programme. This report is an uncomfortable read, shining a stark light on the difficulties faced by the increasing number of older people serving long sentences. For me, four issues stand out from the consultation that underpins this report. First, the experiences of the men and women who took part powerfully illustrate the mismatch between the diverse needs of this often-hidden group of people and the rigidity of many prison regimes. These needs cannot be met by the prison system alone but raise important challenges for health and social care commissioners and providers, as well as external partners involved in the provision of purposeful activities. Second, that this activity is critical for many older people serving long sentences. But many find that few opportunities are available to them. For the ageing population future employment is less of a concern, how their time, often decades, can be spent productively and meaningfully in activities suited to their age and length of sentence. The testimonies here suggest that governors should enhance the role that prisoners themselves can play in supporting others. This report suggests that when encouraged effectively, those serving long sentences can help to fill the gaps that currently exist in many parts of the estate. Third, like much of PRT’s Building Futures Programme, this report demonstrates the value of enabling people with lived experience to engage in issues of operational and policy improvement and provides ideas for positive change. It also includes very personal, honest, and desperate reflections about the experience of incarceration. This underlines what we see at Recoop: many older people inside feel they are punished not just through losing their liberty but also through a series of humiliations and deprivations throughout their sentence, which can get harder as they age. Finally, those who participated in this report provide a painful reminder of the need for a national strategy for older prisoners; something promised by the government in 2020 but yet to be published. The pressure on the Ministry of Justice (MoJ) to provide decent, safe, and rehabilitative secure environments is probably as acute as it has ever been, particularly with the current and very real overcrowding challenges. This cannot be achieved without a comprehensive, integrated and estate-wide approach. The long-awaited older prisoner strategy must address the changes required, including ensuring funding and commissioning is in alignment. This requires joint working and commitment from the MoJ, Public Health and NHS England to fulfil their collective responsibilities to address the perfect storm of issues that is painfully illustrated in this report. Without this, it will not be able to deliver what is needed. 

London: Prison Reform Trust, 2024. 52p.

By Maxim Ananyev, Mikhail Poyker:

Inmates' informal code regulates their behavior and attitudes. We investigate whether prisons contribute to the spread of these norms to the general population using an exogenous shock of the Soviet amnesty of 1953, which released 1.2 million prisoners. We document the spread of prison norms in localities exposed to the released ex-prisoners. As inmates' code also ascribes low status to persons perceived as passive homosexuals, in the long run, we find effects on anti-LGBTQ+ hate crimes, homophobic slurs on social media, and discriminatory attitudes.

ZA DP No. 17138\ Bonn: Institute of Labor Economics, 2024. 

By Julian V. Johnsen, Laura Khoury:

Peer actions play a key role in the criminal sector due to its secrecy and lack of formal institutions. A significant part of criminal peer exposure that happens in prison, is directly influenced by policymakers. This paper provides a broader understanding of how peer effects shape criminal behavior among prison inmates, focusing on co-inmate impacts on recidivism and criminal network formation. Using Norwegian register data on over 140,000 prison spells, we causally identify peer effects through within-prison variation in peers over time. Our analysis reveals several new insights. First, exposure to more experienced co-inmates increases recidivism. Second, exposure to "top criminals" (i.e. those with extreme levels of criminal experience) plays a distinctive role in shaping these recidivism patterns. Third, inmates form lasting criminal networks, as proxied by post-incarceration co-offending. Fourth, homophily intensifies these peer effects. These findings contribute to the theoretical understanding of peer influences in criminal activities and offer practical insights for reducing recidivism through strategic inmate grouping and prison management policies.

Bonn: Institute of Labor Economics - IZA, 2024.

By Howard League for Penal Reform

The prison system in England and Wales is running out of space, reaching record highs of more than 88,000 in recent months. Not only that but the Ministry of Justice (MoJ) has been flagging the likelihood of this happening in its prison population projections since 2021 (MoJ, 2021). Billions of pounds are being spent on new prison places but this will not be enough to match supply to demand. It is time for a new government to address the capacity problem head-on and determine a more positive future for the prison system. The problem is not going away, with the latest prison population projections estimating an increase by more than 30% within the next four years (MoJ, 2024c). The new Labour government has recognised that tackling the crisis must be an urgent priority, with the Prime Minister, Sir Keir Starmer, commenting at his first Downing Street press conference that “we have too many prisoners” (BBC, 2024). During the election campaign the Prison Governors’ Association (PGA) took the unprecedented step of writing to all the main party leaders, warning that “it is a matter of days before prisons run out of space, and that the entire Criminal Justice System stands on the precipice of failure. Within a matter of weeks, it will put the public at risk” (PGA, 2024). The Police Federation has also expressed concerns that police officers are being asked to hold people unlawfully in police custody because prison cells are not available (Police Federation, 2024). It has been suggested that Operation Brinker, a ‘one-in-one-out’ system, would be deployed as prisons approach zero capacity (iNews, 2024). The main driver behind population growth is an increase in the determinate sentenced population due to greater levels of prosecutorial activity, the court backlog, and changes in sentencing policy. Examples include changes to the timing of release for those serving certain determinate sentences (from release at halfway to two-thirds of the sentence) and the introduction of mandatory starting points or whole-life orders for certain offences. Such reforms mean that more people will spend longer in prison. Legislative reforms such as Schedule 21 (introduced in 2003) and responses to single-issue campaigns have introduced mandatory minimum terms for custodial sentences for certain types of offences (and in some cases have resulted in the creation of new offences). These political interventions have distorted proportionality in sentencing and driven up sentence lengths.   

London: Howard League for Penal Reform, 2024. 19p

By Texas Defender Service

No one should be forced to serve a prison sentence—or face the death penalty and be executed—because they were convicted based on unreliable forensic evidence. But the reality is that scores of innocent people are serving prison terms, or even facing execution, simply because their juries trusted forensic evidence—from DNA to fingerprints to ballistics—that was later found to be untrustworthy. Yet for years, in both Texas and across the country, people who were convicted based on flawed forensic evidence had no legal recourse in the courts to be relieved of their convictions. Then, just over a decade ago, the Texas Legislature took a revolutionary step forward for people who were wrongfully convicted based on flawed forensics: it passed Texas Code of Criminal Procedure Article 11.073 (hereinafter 11.073). The first statute of its kind in the United States, 11.073 created a pathway for people whose convictions were based on false forensic evidence to show those faults and ultimately secure their freedom. Is Article 11.073 fulfilling its powerful initial vision: to grant relief to innocent people who are incarcerated on the basis of flawed scientific evidence? The answer is no. Texas Defender Service systematically examined the more than 70 cases raised under 11.073 between September 2013 and December 2023. We found that 11.073 is not working to provide relief to innocent people convicted based on false or unreliable forensic evidence. Due both to the Texas Court of Criminal Appeals’s (CCA) interpretation of the statute and lack of guidance in the statute itself, 11.073 is not operating as the Texas Legislature intended: #1—The Statute Does Not Go Far Enough to Protect Innocent People Who Were Convicted Based on Junk Science: At the heart of 11.073 is the Texas Legislature’s recognition that an innocent person convicted based on flawed forensic evidence should be able to overturn their conviction if they can show (1) that the evidence was flawed and (2) that without this flawed evidence, the jury would have found them “not guilty.” This is the standard written in the statute itself, and it is designed to provide a pathway for innocent people who are serving sentences based on unreliable forensic evidence. However, in practice, the CCA does not apply this standard. Instead, it usually only grants relief if a person can show evidence strong enough to eliminate any rational basis for their conviction, such as exonerating DNA evidence or an alternate perpetrator. This is the legal “actual innocence” standard, and it is higher than the standard written in the 11.073 statute. The legal “actual innocence” standard also places an impossibly high burden on innocent people convicted based on flawed forensic evidence. For the vast majority of people who are actually innocent, meeting the high evidentiary burden of the legal “actual innocence” standard years—or decades—after their conviction is out of the question. 1 Innocent incarcerated people are al almost never in a position to do the intensive police work required to reconstruct a crime scene, uncover previously unknown eyewitnesses, or track down an alternate perpetrator. Moreover, original evidence may have gone stale, and eyewitnesses can be missing, deceased, or are no longer able to recall specific details. #2—The CCA Largely Restricts Relief to Cases Involving New DNA Evidence, Even Though Most Wrongful Convictions Are Based on Other Types of Flawed Forensic Evidence: The CCA primarily grants relief in cases involving DNA evidence, ignoring many other cases involving false forensic evidence. This is concerning because nationwide data shows that false DNA evidence is only involved in a relatively small number of wrongful convictions. #3—The CCA is Not Granting Relief to Death-Sentenced People Under 11.073: The CCA has never granted 11.073 relief to a person sentenced to death, as compared to granting relief to 31% of people who seek relief and are serving non-death sentences. Given the historically high rates of exonerations in capital cases, the total failure of the CCA to grant 11.073 claims for death-sentenced people—compared to nearly a third of all other people—is especially concerning. #4—People Without Counsel are Functionally Barred from Meaningfully Seeking Relief Under 11.073: People who represent themselves in their 11.073 applications are effectively denied access to relief under 11.073 due to their lack of legal counsel. Of the 74 applications filed and adjudicated between September 2013 and December 2023, 19 were filed by people without lawyers. Of those 19 people without lawyers, only one has ever been granted relief, a stark drop-off from the 25% of people with counsel who receive relief. #5—Procedural Bars Prevent Large Numbers of 11.073 Applications from Being Considered on the Merits: Despite having valid claims, many people who seek relief under 11.073 never receive consideration of their claims on the merits because of procedural issues. These barriers especially impact people sentenced to death and people without lawyers. Texas took an extraordinary step in enacting 11.073, but more must be done to ensure that the statute operates as the Texas Legislature intended. In this report, we recommend steps the Texas Legislature can take to ensure that 11.073 serves its intended function: creating a pathway to relief for innocent people who were convicted on the basis of false or unreliable forensic evidence. 

Austin: Texas Defender Service, 2024. 36p.

MAY CONTAIN MARKUP

By NORVAL MORRIS, MICHAEL TONRY

Across the country prisons are jammed to capacity and, in extreme cases, barges and mobile homes are used to stem the overflow. Probation officers in some cities have caseloads of 200 and more--hardly a manageable number of offenders to track and supervise. And with about one million people in prison and jail, and two and a half million on probation, it is clear we are experiencing a crisis in our penal system. In Between Prison and Probation, Norval Morris and Michael Tonry, two of the nation's leading criminologists, offer an important and timely strategy for alleviating these problems. They argue that our overwhelmed corrections system cannot cope with the flow of convicted offenders because the two extremes of punishment--imprisonment and probation--are both used excessively, with a near-vacuum of useful punishments in between. Morris and Tonry propose instead a comprehensive program that relies on a range of punishment including fines and other financial sanctions, community service, house arrest, intensive probation, closely supervised treatment programs for drugs, alcohol and mental illness, and electronic monitoring of movement. Used in rational combinations, these "intermediate" punishments would better serve the community than our present polarized choice. Serious consideration of these punishments has been hindered by the widespread perception that they are therapeutic rather than punitive. The reality, however, Morris and Tonry argue, "is that the American criminal justice system is both too severe and too lenient--almost randomly." Systematically implemented and rigorously enforced, intermediate punishments can "better and more economically serve the community, the victim, and the criminal than the prison terms and probation orders they supplant." Between Prison and Probation goes beyond mere advocacy of an increasing use of intermediate punishments; the book also addresses the difficult task of fitting these punishments into a comprehensive, fair and community-protective sentencing system.

Oxford University Press, Sep 12, 1991, 294 pages

By Lucy Lang Inspector General

The myriad manifestations of systemic racism in the complex web of social systems throughout New York State and America writ large are well-documented. Criminal justice systems in particular are rife with racial inequities at every stage, from initial contact to arrest, trial, and sentence, and through re-entry and beyond, which are themselves inextricably connected to devastating racial disparities in inter-related and surrounding systems including, for example, education, housing, and public health. In December 2016, The New York Times1 reported on a specific alarming instance of such disparities—those in the allocation of behavioral infraction tickets2 and the attendant punishment by the New York State Department of Corrections and Community Supervision (DOCCS) to incarcerated individuals in the year 2015.3 Following publication of the New York Times findings, the then governor directed that the New York State Inspector General “investigate the allegations of racial disparities in discipline in State prisons” and recommend solutions.4 After an initial review, the Inspector General recommended that DOCCS engage the National Institute of Corrections (NIC) 5 , a federal agency that is part of the U.S. Department of Justice, to complete a comprehensive assessment based on their extensive national expertise. The Inspector General oversaw that process and the implementation of the accepted recommendations. Over the following half-dozen years, with the cooperation of DOCCS, the Inspector General continued to monitor these trends to determine whether the NIC recommendations had the desired impact, to observe the impact of additional measures implemented by DOCCS to identify and address possible racial bias in its facilities, programs, and disciplinary actions, and  to gather more comprehensive data in hopes of conclusively identifying the root causes of the observed disparities. As part of that effort, the Inspector General conducted its own comprehensive analysis of data maintained by DOCCS on the discipline of incarcerated individuals. This analysis expanded upon the methodology used by the Times6 by covering a broader period (2015-2020), using an alternate method of tallying of incarcerated populations7, and including reports of rule violations, which are known as Misbehavior Reports, that were ultimately dismissed. 8 In addition, the Inspector General retained a professor who is an expert in statistics to review and comment on its analysis.

United States, New York State Office of the Inspector General. 2022, 175pg

By: Matt Davis, Desiree L. Fox, Ciara D. Hansen,, Ann M. Miller

Native people are disproportionately incarcerated in the United States. Several factors contribute: a history of federal oppression and efforts to erode Native culture, a series of federal laws that rejected tribal justice systems in place long before European contact, historical trauma that has a lasting impact on the physical and mental well-being of Native people, a complicated jurisdictional structure that pulls Native people further into justice involvement, and a deficiency of representation for the accused in tribal courts. Although people accused of crime in tribal courts are afforded the right to counsel, tribal governments are not constitutionally required to provide appointed counsel for the indigent. As a result, there are uncounseled convictions in tribal courts used against Native people in state and federal systems.

There are 574 federally recognized tribal governments in the United States, each with its own culture, sovereign government, justice system, and historical relationship with the United States government. For this reason, interventions meant to address over-incarceration of Native people should start at the tribal level. Tribes could impact disparity on a national level by providing supportive and restorative services for those involved in their own justice systems. Tribes could impact disparities by providing public defender services, in particular, holistic public defense that employs a restorative approach. A holistic model of public defense addresses the issues that contribute to people’s involvement in the criminal justice system and the collateral consequences to criminal charges and convictions. Providing services that address underlying needs results in improved life outcomes that predictably result in less criminal justice involvement. This article highlights the Tribal Defenders Office (TDO) for the Confederated Salish and Kootenai Tribes that has implemented holistic defense in a tribal setting.

Initially modeled after the Bronx Defenders, the Tribal Defenders holistic defense practice aligns with tribal values by going beyond the criminal case to view the accused as a whole person with a range of legal and social support needs that if left unmet will continue to push them back into the criminal justice system. Over the years, the Tribal Defenders’ team has worked to integrate into the community, listen to feedback from clients and the community, and refine the program accordingly. Through twelve years of integrated practice, TDO staff learned several lessons that have shaped their success: services come first, invest in culturally relevant research and services, listen to clients and the community, and adhere to cultural safety.

Although the article promotes holistic defense to the indigent as a solution to inequities facing justice-involved Native people, it also highlights other promising practices. Tribal systems have access to national organizations that support their efforts to address criminal justice challenges. There are tribal courts, victim services, probation departments, and reentry programs that have taken traditional, restorative principles and applied them in innovative ways to promote healing, wellness, and community safety.

United States, Safety & Justice Challenge. 2023. 23pg