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Criminal Justice Reform Resources 2008-2009

By Ken Strutin, Published on May 14, 2009

National and state organizations, scholars, and government bodies conduct research that reviews the state of criminal justice or sheds light on particular problem areas. These publications are intended to underscore important issues and provide recommendations for change that need to be addressed by policy makers and legislators. Moreover, they offer new insights and analysis into the fair administration of justice.

This article focuses on select current reports, surveys, legislative proposals and scholarship regarding criminal justice reform. It is only a small sampling of the increasing volume of publications on vital matters of interest to criminal practitioners and the public. Therefore, only a few themes are covered: criminal justice, discovery, forensics, juvenile justice, prosecutorial misconduct, public defense, sentencing and wrongful conviction.

CRIMINAL JUSTICE

Created Equal: Racial and Ethnic Disparities in the US Criminal Justice System (NCCD 2009)
"This report documents DMC [disproportionate minority contact] in the adult criminal justice system by tabulating the most reliable data available. It does not seek to thoroughly describe the causes of DMC nor does it perform an advanced statistical analysis of how various factors impact disparity. Disproportionate representation most likely stems from a combination of many different circumstances and decisions. It is difficult to ascertain definitive causes; the nature of offenses, differential policing policies and practices, sentencing laws, or racial bias are just some of the possible contributors to disparities in the system. Some studies have begun to explore these issues and are so cited, but the purpose of this report is to describe the nature and extent of the problem."

Criminal Justice Primer 2009 (The Sentencing Project 2009)
"The Sentencing Project's Criminal Justice Primer for the 111th Congress provides an overview of nine policy priorities in criminal and juvenile justice reform that address issues of reentry, sentencing, racial disparity and crime prevention."

Hearing on: Representation of Indigent Defendants in Criminal Cases: A Constitutional Crisis in Michigan and Other States? (U.S. House of Representatives 2009)

Testimony from practitioners, academics and advocates about public defense reform before the Subcommittee on Crime, Terrorism and Homeland Security, Committee on the Judiciary.

 

Hispanics and the Criminal Justice System: Low Confidence, High Exposure (Pew Hispanic Center 2009)
"The 2008 National Survey of Latinos asked Hispanic adults about their views of the police and courts in their communities, their perceptions of crime and any interaction they or their immediate family members have had with the criminal justice system. The survey was conducted from June 9 through July 13, 2008, among a randomly selected, nationally representative sample of 2,015 Hispanic adults. The survey was conducted in both English and Spanish."

Model Legislation, 2009 State Legislative Sessions (The Innocence Project 2009)
"An act creating a (state) criminal justice reform commission."

National Criminal Justice Commission Act of 2009
"The National Criminal Justice Commission Act of 2009 that I [Senator Jim Webb] introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I [Senator Jim Webb] believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process."

Separate Branches, Shared Responsibilities: A National Survey of Public Expectations on Solving Justice Issues (NCSC 2009)
"This report presents the results of a new National Center for State Courts (NCSC) study about public perceptions of how the three branches of state government should work together in forging and supporting policies affecting the administration of justice."

DISCOVERY

Criminal Discovery Reform in New York (The Legal Aid Society 2009)

"This report first sets forth in detail the main arguments in support of criminal discovery reform in New York State. Then it proposes the full statutory language for a new 'Article 245.' Next it reiterates the provisions of 'Article 245' with explanatory commentaries interspersed after each provision. It summarizes five past proposals for discovery reform in New York. Finally it surveys the discovery rules of several states that have successfully practiced more fair and more efficient criminal discovery."

Deregulating Guilt: The Information Culture of the Criminal System, 30 Cardozo L. Rev. 965 (2008)
"The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or 'snitching,' in which the government trades guilt for information, largely outside the purview of rule-based constraints, judicial review, or public scrutiny. With a special focus on the Supreme Court's decision in United States v. Ruiz, this Article explores the criminal system's putative stance towards the proper use of information in generating convictions, in contrast with actual information practices that undermine some of the system's foundational commitments to accuracy, fairness, and transparency. It concludes that the evolution of this deregulated information culture is altering the functional meaning of criminal guilt."

FORENSICS

Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009)
"This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included testimony concerning serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing."

Investigating Forensic Problems in the United States (Innocence Project 2009)

"The report describes the federal forensic oversight program; outlines the problems that have plagued the program since its inception (with specific examples); explains the consequences of the federal government's inadequate administration of the program; shows how forensic negligence and misconduct lead to wrongful convictions; and gives specific recommendations for what the federal government, states and individuals can do to strengthen forensic oversight."

Strengthening Forensic Science in the United States: A Path Forward (NAS 2009).

"It is clear that change and advancements, both systematic and scientific, are needed in a number of forensic science disciplines to ensure the reliability of work, establish enforceable standards, and promote best practices with consistent application. Strengthening Forensic Science in the United States: A Path Forward provides a detailed plan for addressing these needs and suggests the creation of a new government entity, the National Institute of Forensic Science, to establish and enforce standards within the forensic science community."

JUVENILE JUSTICE

Federal Advisory Committee on Juvenile Justice Annual Report 2008 (FACJJ 2008)
"The Federal Advisory Committee on Juvenile Justice (FACJJ) was established by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) in 2004 to comply with requirements of the Juvenile Justice and Delinquency Prevention (JJDP) Act that there be a national conference of member representatives of the State Advisory Groups to provide advice to the President, Congress, and the OJJDP Administrator regarding juvenile justice. Each year, FACJJ prepares two reports (one to the President and Congress and one to the Administrator of OJJDP) to inform Federal leaders of current concerns and recommendations emanating from the States, the five U.S. territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands), and the District of Columbia."

Rethinking the Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult Punishment and Adult Process, Hastings Law Journal (forthcoming) (SSRN 2009)

"This article makes valuable new contributions to the burgeoning scholarly discourse on Apprendi v. New Jersey--a landmark decision that celebrates its tenth anniversary this year. It builds on the author's experience as a public defender, during which she pioneered the surprising but straightforward argument that under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt. Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found by a jury using a beyond a reasonable doubt standard. This tenet applies directly to juvenile transfer hearings, which rely on a consideration of facts to determine whether a juvenile should face trial and sentence in adult court. The facts that serve as a basis for transfer result in exposure to a higher sentence than could be imposed if the offender remained in juvenile court. Despite Apprendi's readily apparent application, juvenile courts have refused to apply Apprendi to juvenile transfer hearings. This article presents this argument and critiques the reasoning of courts that have refused to apply Apprendi in this context. It then explores the theoretical underpinnings of courts' reluctance to apply Apprendi, filling a scholarly void that exists at the intersection of Apprendi and the juvenile justice system."

Right to Education in the Juvenile and Criminal Justice Systems in the United States (ACLU 2009)
"The report documents the school to prison pipeline; demographic and educational characteristics of the juvenile and adult incarcerated populations; the lack of adequate access to quality education programs in juvenile facilities and state and federal prisons; and examples of youth detention facilities in New York, Texas, and Louisiana that violate the rights of youth to education and to be treated with dignity. The report was submitted to the Special Rapporteur, who is currently preparing a report to the United Nations Human Rights Council about prisoner education worldwide to be released in June 2009."

What's Wrong with Victims' Rights in Juvenile Court?: Retributive v. Rehabilitative Systems of Justice, California Law Review (forthcoming) (SSRN 2008)
"In this article, I [Prof. Kristin N. Henning] contend that victim impact statements move the juvenile court too far away from its original mission and ignore the child's often diminished culpability in delinquent behavior. I [Prof. Kristin N. Henning] also argue that victim impact statements delivered in the highly charged environment of the courtroom are unlikely to achieve the satisfaction and catharsis victims seek after crime. To better serve the needs of the victim and the offender, I [Prof. Kristin N. Henning] propose that victim impact statements be excluded from the juvenile disposition hearing and incorporated into the child's long-term treatment plan. Interactive victim awareness programs, such as victim-offender mediation and victim impact panels that take place after disposition, allow victims to express pain and fear to the offender, foster greater empathy and remorse from the child, and encourage forgiveness and reconciliation by the victim. Delaying victim impact statements until after the child's disposition also preserves the child's due process rights at sentencing and allows the court to focus on the child's need for rehabilitation."

PROSECUTORIAL MISCONDUCT

Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 Geo. Mason L. Rev. 257 (2008)

"Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred by the North Carolina State Bar in June 2007 principally for withholding exculpatory DNA evidence and for making false statements about his conduct. This article relates the central details of his actions and the process that led to disbarment. Its key overall insight is that full open-file discovery was the figurative workhorse and hero in the Nifong disbarment saga. That saga was itself strongly affected by two earlier death penalty cases where prosecutors also failed to provide exculpatory information to the defense. The constitutional doctrine in Brady v. Maryland that requires the disclosure of exculpatory evidence and the related ethics rule produced no evidence in the Duke lacrosse case or the other two prosecutions. Indeed, these cases show that it is exceedingly difficult for a prosecutor committed to his or her case and/or who sincerely believes in the guilt of the accused to recognize the exculpatory nature of evidence and disclose it. The reversal of nine North Carolina capital cases in the last decade, since open-file discovery was mandated for capital post-conviction litigation, demonstrates the ineffectiveness of solely relying on voluntary Brady disclosures, even when the consequence of an unjust conviction would be execution."

Improving Prosecutorial Accountability: A Policy Review (The Justice Project 2009)
"In this report, the Justice Project offers solutions to the systemic problems that lead to prosecutorial misconduct. By increasing transparency and improving the accountability of prosecutors, states can prevent the kind of misconduct and abuses of power that lead to wrongful convictions. The policy review also profiles cases of injustice, highlights jurisdictions that have enacted reforms in this area, and presents a model policy."

PUBLIC DEFENSE

Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (The Constitution Project 2009)
"Justice Denied breaks new ground in setting out a road map for those seeking to improve their indigent defense systems. Besides a comprehensive discussion of the approaches that have been successful in achieving improvements, the report contains a number of recommendations for achieving reform."

Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts (NACDL 2009)
"Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools. These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense. This report explains, in depth, these and other problems observed in misdemeanor courts and offers recommendations for reform, while highlighting best practices from across the country."

Race to the Bottom, Speed & Savings Over Due Process: A Constitutional Crisis (NLADA 2008)

"The report opens with a retelling of the first right to counsel case in America – the case of the 'Scottsboro Boys' in 1932, (Powell v. Alabama). Chapter I (pp. 1-4) presents an overview of our findings and concludes that many of the systemic deficiencies identified over three quarters of a century ago in the Scottsboro Boys' story permeate the criminal courts of Michigan today: judges hand- picking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trials or sentencings; attorneys violating their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused; and, a lack of sufficient time, training, investigators, experts and resources to properly prepare a case in the face of a state court system that values the speed with which cases are disposed of over the needs of clients for competent representation."

SENTENCING

Crime Costs and the State of Corrections (NCSL 2009)
"In September [2008], NCSL and the Public Safety Performance Project of the Pew Center on the States convened a group of state lawmakers to discuss sentencing and corrections policies. This discussion included the size of the problem states face, policies that have contributed to the burgeoning prison population, political considerations, new approaches and how the recession affects potential solutions."

One in 31: The Long Reach of American Corrections (PEW 2009)
"This report examines the scale and cost of prison, jail, probation and parole in each of the 50 states, and provides a blueprint for states to cut both crime and spending by reallocating prison expenses to fund stronger supervision of the large number of offenders in the community."

One in 100: Behind Bars in America 2008 (PEW 2008)
"A new report by Pew's Public Safety Performance Project details how, for the first time in history, more than one in every 100 adults in America are in jail or prison—a fact that significantly impacts state budgets without delivering a clear return on public safety."

Rockefeller Drug Laws: Unjust, Irrational, Ineffective (NYCLU 2009) 1
"The report concludes by proposing a paradigm shift toward a public health approach to drug policy. In this new model, prison is a last resort, reserved for the truly violent. The public health approach seeks to reinvest dollars, otherwise spent on prisons, to promote safe and stable communities. In practice, this approach diverts individuals with substance abuse problems from prison to programs that promote and facilitate life success."

Sentencing 2008: Developments in Policy and Practice (The Sentencing Project 2009)

"This report highlights a number of key state-level criminal justice policy developments that occurred during 2008. This report is not intended to be an exhaustive collection of state criminal justice legislation and policy reforms implemented during 2008. Rather, it is meant to highlight selected legislative and policy developments that address critical challenges in the field of criminal justice."

WRONGFUL CONVICTION

Convicting the Innocent: Texas Justice Derailed (The Justice Project 2009)
"Since 1994,Texas has exonerated thirty-nine innocent people who served over 500 years in prison for crimes they did not commit. This report contains brief overviews of these thirty-nine cases, all of which have been exposed by DNA evidence, and analyzes the systemic problems that have resulted in the wrongful convictions of the innocent. By identifying the causes of wrongful convictions and implementing practical reforms, Texas can increase the fairness, accuracy, and reliability of its criminal justice system."

Final Report of the New York State Bar Association's Task Force on Wrongful Convictions (NYSBA 2009)
"The results of the Task Force's case studies, in which 53 people were wrongfully convicted, reveal that government practices, by police or prosecutors, were possible causes of the wrongful convictions in over 50% of the cases. Even if cases do not reveal an actually innocent person being wrongfully convicted, they nonetheless often reveal troubling due process violations that may result in a defendant being denied a fair trial. The analysis and recommendations presented in this report reflect concern for the application of due process principles in all cases--not just those that involve a wrongful conviction."

Innocentrism, 2008 U. Ill. L. Rev. 1549

"Many observers, including this author, have praised the evolving focus on actual innocence in the criminal law discourse and advocated the passage of legislative reforms geared toward eradicating or at least curtailing the factors that contribute to wrongful convictions. Several prominent commentators, however, have reacted less sympathetically and have mounted a series of attacks on the innocence movement, both from the right and the left. In this Essay, I [Prof. Daniel S. Medwed] aim to respond to those skeptical of (and antagonistic toward) the emerging centrality of innocence-based arguments in criminal law: in effect, to critique the critics. In doing so, I [Prof. Daniel S. Medwed] hope to demonstrate that innocentrism, while far from a panacea to the criminal justice system's many ills, is a positive occurrence and one that ultimately can complement, rather than replace, the emphasis on substantive and procedural rights that for good reason rests at the core of American criminal law."



1 On April 7, 2009, the New York drug law reform bill (S56-B/A156-B) was signed into law (Chapter 56 of the Laws of 2009), as part of the budget legislation for 2009-2010. For more information, see Rockefeller Drug Law Reform (Center for Community Alternatives).