Different but equal? Exploring potential catalysts of disparity in remand decision-making in the youth court

The disproportionate use of remand detention (i.e. pre-trial detention) for vulnerable and marginalized youth is an issue of concern globally and demographic disparities in youth remand decision outcomes have been found in many jurisdictions, including England and the Netherlands. This article aims to explore and identify potential catalysts of disparity in the collective process of remand decision-making in youth courts. Drawing from Ulmer’s ‘inhabited institutions’ perspective, and the related ‘court community model’ and ‘focal concerns model’, and empirical findings from research in Dutch and English youth remand courts, this article suggests that several distinctive mechanisms and features of the youth remand decision-making process might function as catalysts of disparity. The findings indicate that the focus on ‘risk’ and ‘welfare needs’, the distinctive context defined by time constraints, limited information, shortages of readily available services, interdependency and interdisciplinary, and high stakes, combined with the profoundly human nature of courtroom workgroup decision-making, make the remand decision-making process in youth courts particularly prone to producing unwarranted disparities. Ultimately, informed by the theoretical perspectives and empirical findings, the article provides insights into how and why disparities might occur in youth remand decisions and offers suggestions for policy, practice and future research.

Courtroom Workgroups

“Courtroom workgroup” is a term used to describe the ongoing relationships between judges, prosecutors, and defense attorneys. These three interrelated relationships define how the central figures operate and indeed how a case progresses. The authors survey the existing literature on such workgroups and conduct twelve interviews with key stakeholders in the workgroup structure at both the state and federal levels. Such interviews allow the authors to compare the literature—often decades old—to the experiences of judges and attorneys in today’s courtrooms. The authors examine how the relationships in the three courtroom roles explain some case outcomes, but also examine the host of other variables which arguably sometimes individually, and more often collectively, contribute to a richer, more nuanced, and more comprehensive understanding of court outputs and outcomes, including the nature of workgroups themselves. The authors caution against “concept hagiography”—i.e. too enthusiastically touting the explanatory power of the concept being studied, while giving shorter shrift to underlying explanatory variables. Finally, note is taken of how the recent election of exceptionally progressive prosecutors in several major jurisdictions may lead to opportunities for quasi-experimental testing of how changes in workgroups affect case outcomes.

Voice of the Victims: Accounts of Secondary Victimization With the Court System Among Homicide Co-victims

The treatment homicide co-victims receive from the criminal justice system often leaves them aggrieved and feeling alienated. A neglected but important area of investigation is the courtroom workgroup’s handling of murder cases. This exploratory study examines the nature and extent to which varying secondary victimization experiences are common among co-victims as the murder cases are processed through the court system. The sample consists of 27 co-victims connected to 24 separate cases where the murders occurred in a major metropolitan area in the southeastern United States. Drawing upon focus group data, Nvivo 10 was employed to identify themes that illustrate common secondary victimization experiences among co-victims along with positive and mixed reactions to court processes and personnel. The findings indicate that court requirements to provide notifications are infrequently met and attorney’s practice to supply information about case progress and counseling to family members regarding plea-bargaining and sentencing decisions are greatly restrictive. When information is offered, it is often perceived as highly technical and when assistance is provided, it is frequently limited or intermittent. Despite the prevalence of negative experiences, there also were reports of positive interactions with the district attorney and victim advocates. The study concludes by identifying ways in which the courtroom workgroup can uphold the rights afforded to co-victims while at the same time meeting the duties and responsibilities of the workgroup.

Do Detainees Plead Guilty Faster? A Survival Analysis of Pretrial Detention and the Timing of Guilty Pleas

Although numerous quantitative studies have linked pretrial detention to increased conviction rates, the precise mechanisms linking these decisions remain unclear. Qualitative studies shed light on these processes, revealing that many detainees plead guilty quickly to escape the pains of detention, including poor confinement conditions, strained work or family relations, and “dead time.” Moreover, these pressures to plead are often exacerbated by uncertain detention length, time-sensitive “exploding” plea deals, and temporal discounting. Utilizing data on felony defendants from large urban counties between 1990 and 2004, we assess whether pretrial detention accelerates the pace of guilty pleas. Survival analyses indicate that pretrial detainees plead guilty 2.86 times faster than released defendants do, suggesting that pretrial detention is a powerful prosecutorial tool. Moreover, local resources affect case processing time in ways that are consistent with the courtroom workgroup perspective. Implications for public policies and future research are discussed.

Who Said Anything About Justice? Bail Court and the Culture of Adjournment

The criminal court is supposed to be a place of adversarial justice; however, these formal legal values do not appear to translate into practice. The courtroom workgroup, though made up of formal adversaries with widely divergent roles and objectives, is a community of workers whose shared interests include getting through the day as quickly and efficiently as possible. Using data from 142 days of bail court observation in Ontario the author argues that a “culture of adjournment” has taken over the bail process. Rather than the court being run by an efficient adversarial group of people processing criminal cases through the system, the courtroom has developed a culture that emphasizes the importance of expeditiously disposing of the daily docket over distributing justice.

The Practice and Justifications of Plea Bargaining by Hong Kong Criminal Defence Lawyers

Unlike Western common-law jurisdictions where plea bargaining has been acknowledged, official discourse in Hong Kong denies the existence of plea bargaining. However, defence lawyers are staunch supporters of its use behind the scenes. Using in-depth, semi-structured interviews with Hong Kong criminal defence lawyers, it was found that lawyers’ justifications are based on four main grounds: it is non-coercive because the final decision is left to the accused; negotiations avoid the risks of trials; plea bargaining is a practical solution that is in the best interests of the client and the state; and the courts implicitly tolerate the practice. The findings can be explained by Eisenstein and Jacob’s (1991) courtroom workgroup model. The present study seeks to bridge the gap in the literature where plea bargaining has only been discussed predominately in the context of Western common-law jurisdictions.

The Meaning of “Short” Sentences of Imprisonment and Offences Against the Administration of Justice: A Perspective from the Court

RésuméLa prolifération de périodes relativement courtes d'emprisonnement, de 30 jours ou moins, au Canada est un sujet peu traité. Une analyse des données de determination de la peine suggère que les infractions contre l'administration de la justice sont le plus souvent reliées à des périodes d'emprisonnement de un à 15 jours. Les données suggèrent que les tribunaux répondent à la sévérité des infractions, ou selon un modèle de proportionnalité. Au-delà de l'analyse quantitative cependant, très peu est connu des objectifs et significations que ces sentences revêtent pour les procureurs de la Couronne et les juges. L'analyse se penche sur ces acteurs, qui forment ce que Eisenstein et Jacob ont appelé uncourtroom workgroup, en tant que producteurs de discours et de significations, dans le cadre de la littérature existante, des theories de determination de la peine et des contraintes organisationnelles. Je suggère que la valeur explicative des theories existantes – notamment celles voulant que la Couronne et les juges réagiraient à la sévérité des infractions contre l'administration de la justice, et visent la dissuasion générale et la dénonciation – est limitée. Les entrevues et l'observation des négociations de culpabilité, révèlent que la gestion du risque ainsi que le travail sur le caractère sont des objectifs importants tant pour les procureurs que les juges. L'étude démontre aussi que que le processus de plea bargaining ne devrait pas être analysé séparément du résultat de la determination de la peine.