Empiricism and the Misdemeanor Courts: Promoting Wider, Deeper, and Interdisciplinary Study

Since 1956, there have been three waves of scholarly attention on the misdemeanor courts. Despite this attention, misdemeanor courts remain understudied and overlooked. The object of this paper is to summarize the empirical research conducted over the last sixty years and identify the scholarly work that should be undertaken on the processing of misdemeanor offenders in our courts. Buoyed by the current interest in studying the misdemeanor courts, scholars should widen and deepen their study by replicating the work of others in a variety of jurisdictions, observing court proceedings, interviewing defendants and the courtroom workgroup, and assessing whether constitutional ideals are being upheld by our misdemeanor courts

Federal White Collar Sentencing in the United States: A Work in Progress

At first blush, it seems odd for an American contributor to an international conference on sentencing to focus on high end federal white collar sentencing. After all, federal cases make up a relatively small part of the U.S. criminal justice system. (Between October 2005 and September 2006, about 1,132,290 people were sentenced for a felony in state courts, and 73,009 in federal courts.) Even within the federal system, white collar cases of all sorts are a relatively small part of a criminal docket dominated by immigration, drug, and gun cases, which together comprised nearly 73% of all federal cases in 2009. And the crimes involving fraud, deceit, theft, embezzlement, insider trading, and other forms of deception that accounted for 9.5% of 2009 cases includes a great many offenders and offenses of the middling sort. Moreover, what is meant by high end anyway? Does a vague directional reference allow one to sidestep the longstanding scholarly debate about defining white collar crime

Open the Jail Cell Doors, HAL: A Guarded Embrace of Pretrial Risk Assessment Instruments

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for protecting individual constitutional rights, mitigating racial disparities, and avoiding the drawbacks of machine learning are the key challenges facing reformers and jurisdictions adopting pretrial risk assessment instruments. Absent proper precautions, risk assessment instruments can reinforce, rather than alleviate, modern criminal justice disparities. Drawing from a case study of New Jersey’s recent bail reform program, this Note examines the efficacy, impact, and pitfalls of risk assessment instrument adoption. Finally, this Note offers a broad framework for policymakers seeking to thoughtfully experiment with risk assessment instruments in their own jurisdictions

Problem-solving courts, therapeutic jurisprudence and the Constitution: If two is company, is three a crowd?

Court costs, resource-intensive trials, booming prison populations and the obduracy of recidivism rates all present as ugly excesses of the criminal law adversarial paradigm. To combat these excesses, problem-solving courts have evolved with an edict to address the underlying issues that have caused an individual to commit a crime. When a judge seeks to help a problem-solving court participant deal with issues like addiction, mental health or poverty, they are performing a very different role to that of a judicial officer in the traditional court hierarchy. They are no longer the removed, independent arbiter — a problem-solving court judge steps into the ‘arena’ with the participant and makes active use of their judicial authority to assist in rehabilitation and positive behavioural change. Problem-solving court judges employing the principles of therapeutic jurisprudence appreciate that their interaction with participants can have therapeutic and anti-therapeutic consequences. This article will consider how the deployment of therapeutic measures (albeit with good intention) can lead to the behavioural manifestation of partiality and bias on the part of problem-solving court judges. Chapter III of the Commonwealth Constitution will then be analysed to highlight why the operation and functioning of problem solving courts may be deemed unconstitutional. Part IV of this article will explain how a problem-solving court judge who is not acting impartially or independently will potentially contravene the requirements of the Constitution. It will finally be suggested that judges who possess a high level of emotional intelligence will be the most successful in administering an independent and impartial problem solving court

Juvenile Mental Health Courts: An Emerging Strategy

Examines the benefits and drawbacks in using juvenile mental health courts. Includes how the courts are funded, which agencies administer them, criteria used for including youth in the programs, and community services that are provided to participants