Criminal Justice Decisions Research Articles

Focal Concerns and Intimate Partner Violence Case Processing: Predicting Arrest Using a Stratified Random Sample of Police Case File Data

Focal concerns has utility for explaining criminal justice decisions, including among police. At present, there is no research that has examined focal concerns and arrest decisions in non-sexual, intimate partner violence (IPV) cases. This study used a stratified random sample of 776 IPV incidents from an urban police department in one of the five largest and most diverse US cities to assess the effect of focal concerns on arrest. A multivariate binary logistic regression model demonstrated victim injury, suspect IPV and general criminal history, evidence, witnesses, victim preference for formal intervention, women victims, and intoxicated suspects predicted arrest. When the suspect was on scene, this was the strongest predictor of arrest. Implications and future research are discussed.

Evaluating Algorithmic Risk Assessment

Algorithmic risk assessment is hailed as offering criminal justice officials a science-led system to triage offender populations to better manage low- versus high-risk individuals. Risk algorithms have reached the pretrial world as a best practices method to aid in reforms to reduce reliance upon money bail and to moderate pretrial detention’s material contribution to mass incarceration. Still, these promises are elusive if algorithmic tools are unable to achieve sufficient accurate rates in predicting criminal justice failure. This article presents an empirical study of the most popular pretrial risk tool used in the United States. Developers promote the Public Safety Assessment (PSA) as a national tool. Little information is known about the PSA’s developmental methodologies or performance statistics. The dearth of intelligence is alarming as the tool is being used in high-stakes decisions as to whether to detain individuals who have not yet been convicted of any crime. This study uncovers evidence of performance accuracy using a variety of validity metrics and, as a novel contribution, investigates the use of the tool in three diverse jurisdictions to evaluate how well the tool generalizes in real-world settings. Policy implications of the findings may be enlightening to officials, practitioners, and other stakeholders interested in pretrial justice as well as in the use of algorithmic risk across criminal justice decision points.

The Influence of Latino Ethnicity on the Imposition of the Death Penalty

With respect to African Americans, the history of racial discrimination in the imposition of the death penalty is well-known, and the persistence of racial disparities in the modern era of capital punishment is well-documented. In contrast, the influence of Latino ethnicity on the imposition of the death penalty has been studied very little. A review of the limited literature reveals evidence of discrimination against Latinos. Archival studies generally find ethnicity-of-victim discrimination, and some of those studies find ethnicity-of-defendant discrimination disadvantaging Latino defendants; these findings parallel the findings of the much more robust literature investigating bias against African American defendants and victims. The controlled experimental studies generally show both ethnicity-of-defendant and ethnicity-of-victim discrimination disadvantaging Latinos. Related literature investigating stereotypes, animosity, and discrimination in other criminal justice decisions further suggests the likelihood of ethnicity discrimination in the imposition of capital punishment, as well as the need for further research.

Race and Reasonable Suspicion

The current political moment requires us to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect’s race when conducting criminal investigations. The civil rights movement and the progressive criminal justice decisions of the Warren Court mitigated the explicit use of race as a factor, but there is ample evidence that many modern police officers still openly or implicitly use race to guide their investigative decisions. This article examines and critiques how courts have historically analyzed the question of race in the context of determining reasonable suspicion or probable cause. There are two constitutional provisions that regulate whether and how the police can use race as a factor to meet the legal standards. Under the Fourth Amendment, police can only use race as a factor if race is relevant to the likelihood that the suspect is engaged in criminal activity. In theory, there could be a relationship between race and criminal activity in a narrow subset of cases. But in reality, police and courts rely on dubious anecdotal data to support this relationship, and conduct flawed statistical analysis to calculate the strength of the relationship. Also, much of the data that exists is tainted by decades of biased policing and prosecution practices. Because there are a small subset of cases in which a correlation between race and crime may exist; we need a legal reform that requires prosecutors to demonstrate the existence and strength of the correlation through empirical data rather than through the subjective experiences of law enforcement. Under the Equal Protection Clause, police officers may only explicitly use race to support individualized suspicion if the use of race is narrowly tailored to serve a compelling state interest and there is no race-neutral factor that would also satisfy that interest. Although one would expect this standard to severely limit the use of race in criminal investigations, courts have allowed police to use race in a surprising number of cases. In many cases, courts do not even find that the explicit use of race triggers strict scrutiny. In other cases, when so-called race neutral factors trigger disparate impact, the evidentiary burden shifts to criminal defendants to prove that the race-neutral factor was applied with discriminatory purpose, a standard which is nearly impossible to establish. Even when strict scrutiny is triggered, courts have often been willing to conclude that crime control is a compelling state interest and that the use of race is narrowly tailored to meet that interest. This article argues that courts in criminal cases must apply an Equal Protection test identical to the test used in civil cases in order to limit the use of race in criminal investigations, thereby limiting the practice to the rare instances when it is truly necessary.

Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court, 2019 Term

Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court, 2019 Term

Making sense of risk.

Although actuarial risk prediction tools are widely used in the American criminal justice system, the lawyers, judges, and correctional workers who consult these products in making decisions often misunderstand fundamental aspects of how they work and what information they provide. This article suggests that the best way to ensure risk assessment tools are being used in ways that are just and equitable is to ensure that those who use them better understand three key aspects of what information they do - and do not - reveal. Doing so requires clarifying what risk is being predicted, explaining what risk levels signify, and enumerating how risk-related information is and is not relevant to specific criminal justice decisions.

Big Data and Procedural Justice: Legitimizing Algorithms in the Criminal Justice System

Big data algorithms are becoming more common in the criminal justice system: they are used to provide more effective allocation of police resources, to notify police of potentially dangerous individuals at specific locations, to guide efforts to intervene with individuals before they engage in criminal activity, to advise judges making decisions about pre-trial detention, and to provide guidance to judges at sentencing. The debate about the propriety of using these algorithms has primarily focused on whether they are fair to the defendants they are evaluating. However, those in favor of using these tools in the criminal justice system must also consider another potential hurdle: whether these new tools will be accepted by the general public. For centuries, decisions in the criminal justice system have been made by individuals: police officers, judges, bureaucrats, and legislators. The general public is accustomed to these decision-makers and, for the most part, accepts their legitimacy. However, the public may not be as comfortable with the idea that critical criminal justice decisions are made or heavily influenced by computer programs instead of human beings. This question is a critical one for big data supporters: even if these tools can provide predictions that are more fair, efficient, and accurate than the clinical judgments made by human beings, they will never become widespread if they cannot gain public support.

Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court, 2018 Term

In this article, we review and analyze the criminal justice–related decisions of the 2018 term of the U.S. Supreme Court. We also provide a summary of the Court’s voting patterns and opinion authorship. Eighteen of the Court’s 72 decisions touched on criminal justice. There were significant decisions involving due process, sentencing, and federal criminal statutes. Each of these is discussed in turn.

Criminal justice decision making in social and legal context

Criminal justice decision making in social and legal context

Some Doubts About 'Democratizing' Criminal Justice

The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportionately across racial groups, and police that seem to antagonize and hurt the now-distrustful communities they are tasked to serve and protect. Systemic social ailments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal academy’s “democratizers”—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves. Neighborhood juries, for example, internalize the costs of punishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives. Across the gamut of criminal justice decision-making, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one. A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet. This Article’s warning is plain: don’t take the medicine. “Democratization” wields undeniable rhetorical appeal but will not really fix what ails us—and may just make it worse. The democratization movement, this Article argues, rests on conceptually problematic and empirically dubious premises about the makeup, preferences, and independence of local “communities.” It relies on the proudly counterintuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence. And ultimately, democratization’s dual commitments are on a collision course. The democratizers simultaneously devote themselves to particular ends—amelioration of the biased and outsized carceral state—and to particular means—participatory democracy. What happens if, as this Article predicts, the means do not produce the ends? Which commitment prevails? Worse yet, venerating lay opinion distracts from alternative visions of “democratic” criminal justice that more credibly tackle the critical question of how best to blend public accountability with evidence and expertise.

Narrative criminal justice

Criminal justice is replete with positivistic theories of decision making. However, such theories fail to acknowledge the interpretive nature of criminal justice agents and their decisions. This paper outlines a narrative approach to criminal justice decision making hinged on the philosophical works of Paul Ricoeur. The paper argues that criminal justice professionals are “story-telling animals” whose decisions and actions are teleologically determined through narratives or stories, which are primary meaning-making tools. Decision making is placed under the quasi-causal model of action where action is described, narrated, and prescribed. To arrive at a decision, however, there is a need for a dialectical interweaving operation between narrative interpretation and argumentation with which one arrives at a decision. A research agenda to move “narrative criminal justice” forward is suggested.

Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court, 2017 Term

Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court, 2017 Term

Layers of Bias: A Unified Approach for Understanding Problems With Risk Assessment

Scholars in several fields, including quantitative methodologists, legal scholars, and theoretically oriented criminologists, have launched robust debates about the fairness of quantitative risk assessment. As the Supreme Court considers addressing constitutional questions on the issue, we propose a framework for understanding the relationships among these debates: layers of bias. In the top layer, we identify challenges to fairness within the risk-assessment models themselves. We explain types of statistical fairness and the tradeoffs between them. The second layer covers biases embedded in data. Using data from a racially biased criminal justice system can lead to unmeasurable biases in both risk scores and outcome measures. The final layer engages conceptual problems with risk models: Is it fair to make criminal justice decisions about individuals based on groups? We show that each layer depends on the layers below it: Without assurances about the foundational layers, the fairness of the top layers is irrelevant.

Modelling the effects of crime type and evidence on judgments about guilt

Concerns over wrongful convictions have spurred an increased focus on understanding criminal justice decision-making. This study describes an experimental approach that complements conventional mock-juror experiments and case studies by providing a rapid, high-throughput screen for identifying preconceptions and biases that can influence how jurors and lawyers evaluate evidence in criminal cases. The approach combines an experimental decision task derived from marketing research with statistical modeling to explore how subjects evaluate the strength of the case against a defendant. The results show that, in the absence of explicit information about potential error rates or objective reliability, subjects tend to overweight widely used types of forensic evidence, but give much less weight than expected to a defendant's criminal history. Notably, for mock jurors, the type of crime also biases their confidence in guilt independent of the evidence. This bias is positively correlated with the seriousness of the crime. For practicing prosecutors and other lawyers, the crime-type bias is much smaller, yet still correlates with the seriousness of the crime.

Improving crime count forecasts using Twitter and taxi data

Crime prediction is crucial to criminal justice decision makers and efforts to prevent crime. The paper evaluates the explanatory and predictive value of human activity patterns derived from taxi trip, Twitter and Foursquare data. Analysis of a six-month period of crime data for New York City shows that these data sources improve predictive accuracy for property crime by 19% compared to using only demographic data. This effect is strongest when the novel features are used together, yielding new insights into crime prediction. Notably and in line with social disorganisation theory, the novel features cannot improve predictions for violent crimes.

The Blame Game

Although in recent years it has become a bit easier to discuss mental health challenges in public, mental illness is still somehow viewed by many in the public as a moral failing. It is that underlying judgement, that unwillingness to look at the many sources that leads to profound misunderstandings by the public, particularly in the context of a criminal trial. In this article I examine these issues in that context in order to better identify, and come to a better understanding of where our shared biases get in the way of a reasoned view of such evidence. The article examines some broad policy questions regarding what we, as a society, do with our mentally ill, and then looks at public perceptions and their impact on criminal justice decision making.

The Best Interests of the Child and the Sentencing of Offenders with Parental Responsibilities

There is a growing body of empirical research demonstrating that sentencing and other criminal justice decisions often have a detrimental, even traumatic impact upon an offender’s dependent children. Judges must balance numerous factors when making sentencing decisions, generally encompassing the protection of the public, the seriousness of the offence, and the personal circumstances of the offender. Should the probable impact of a sentence on an offender’s dependents be a significant factor to be weighed with these other factors in the process of sentencing? More specifically, when a court is sentencing an offender with parental responsibilities, does it have a duty to inquire about the potential impact of the sanction on the offender’s dependent child or children? Must it consider the principle of the best interests of the child or a child’s right to family life as a separate legal consideration in constructing a sentence? International human rights standards suggest that it does. After reviewing existing evidence on the potential hardship of sentencing decisions for an offender’s dependent children, the authors examine the experience of six countries in interpreting and applying these standards in their domestic laws, policies, and practices. They discuss some options for sentencing reforms in the broader context of efforts to reduce high rates of imprisonment in many countries and the need to address the differential impacts of criminal sanctions for primary caregivers and their children.

Trenutak realizacije konfrontacijskog prava u kontinuumu kaznenog postupka

The fairness of the proceedings for the defendant as the central point of the prosecution of the criminal prosecution and prosecution body is one of the requirements of the convention law, embodied in the Croatian criminal procedural law. The process of stigma occasionally appearing in relevant criminal justice decisions points to the fact that legal certainty has not yet been established regarding judicial practice in terms of the time of the conflicting rights of defense, but also of the worrying arbitrariness of the decisions, particularly as regards non-compliance with a higher court. In this paper, the author uses a case-study method to study the recent decisions of Croatian criminal courts regarding the interpretation of the moment when, according to procedural legal requirements, the realization of the right of defense must necessarily be examined by prosecution witnesses. Finally, it points to the inequality of the court practice of the lower courts with the highest court in Croatia, the unenforceability of certain court decisions and interpretations for which it is not possible to invest (regular) legal remedies and imposing obligations on criminal prosecution bodies that are not subject to a criminal procedural law.

Does GPS supervision of intimate partner violence defendants reduce pretrial misconduct? Evidence from a quasi-experimental study

This research examines the effect global positioning system (GPS) technology supervision has on pretrial misconduct for defendants facing intimate partner violence charges. Drawing on data from one pretrial services division, a retrospective quasi-experimental design was constructed to examine failure to appear to court, failure to appear to meetings with pretrial services, and rearrest outcomes between defendants ordered to pretrial GPS supervision and a comparison group of defendants ordered to pretrial supervision without the use of monitoring technology. Cox regression models were used to assess differences between quasi-experimental conditions. To enhance internal validity and mitigate model dependence, we utilized and compared results across four counterfactual comparison groups (propensity score matching, Mahalanobis distance matching, inverse probability of treatment weighting, and marginal mean weighting through stratification). Pretrial GPS supervision was no more or less effective than traditional, non-technology based pretrial supervision in reducing the risk of failure to appear to court or the risk of rearrest. GPS supervision did reduce the risk of failing to appear to meetings with pretrial services staff. The results suggest that GPS supervision may hold untapped case management benefits for pretrial probation officers, a pragmatic focus that may be overshadowed by efforts to mitigate the risk of pretrial misconduct. Further, the results contribute to ongoing discussions on bail reform, pretrial practice, and the movement to reduce local jail populations. Although the cost savings are not entirely clear, relatively higher risk defendants can be managed in the community and produce outcomes that are comparable to other defendants. The results also call into question the ability of matching procedures to construct appropriate counterfactuals in an era where risk assessment informs criminal justice decision-making. Weighting techniques outperformed matching strategies.

Correctional shorthands: Focal concerns and the decision to administer solitary confinement

PurposePrior studies of policing and sentencing often find racial disparities in criminal justice decision-making. However, there is limited research on the existence of racial disparities within correctional facilities. MethodsUsing a nationally representative survey of federal and state institutions, the impact of race and ethnicity on the use of solitary confinement is examined through logistic regression and multilevel logistic regression. ResultsInitially, black inmates are 20% more likely to report being punished with solitary confinement than whites, but this effect is completely mediated once social and criminal histories, as well as various forms of prison misbehavior are taken into account. Conversely, inmates of other racial groups (primarily Asian) were less likely than whites to be punished with solitary confinement. Hispanic ethnicity may be associated with 25% increase in the risk of being punished with solitary confinement than non-Hispanic whites, but the pattern is not consistent across models. ConclusionsThese findings suggest that assaultive behavior against staff and other inmates along with drug and alcohol violations are paramount in correctional officer decision-making. Future research should consider these infractions, institutional context, and inmate history when examining the potential indirect effect of race in prison.