Tuesday, June 25, 2019
Doherty on Testing Periods
Fiona Doherty (Yale University - Law School) has posted Testing Periods and Outcome Determination in Criminal Cases (Minnesota Law Review, Vol. 103, No. 1699, 2019) on SSRN. Here is the abstract:
This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining “clean” from drugs and alcohol), typically, but not always, as a function of plea bargaining. Prosecutors and judges set the rules, and defendants must demonstrate that they can follow the rules to pass the test and successfully avoid prison. Juries play no role in the system, and due process requirements diverge sharply from traditional norms.
The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication.
The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication.
https://lawprofessors.typepad.com/crimprof_blog/2019/06/doherty-on-testing-periods.html