Why are we Failing in Scaling Up our Successful Pilot Projects?

My name is Dayaar Singla and I am an international exchange student from India’s National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad. My interest in this course was piqued by Prof. Ball’s description of how this is a “class as a think-tank”. Further, it is extremely interesting for me to study the Foster Care System in California as the entire concept is extremely alien for someone from India. This helps me in providing an outsider’s perspective to the class discussions.

In my understanding, resolution of any policy issue follows a 4 step process which can be shown as:

While my colleagues will be working on identifying the various problems that exist with the Foster Care System in California and attempt to propose solutions to rectify some of them, I due to my lack of understanding of the US socio-cultural and political system have decided to look at a broader problem that policymakers seem to be facing. In a number of social programs, we seem to be coming across the replication crisis which has been previously documented in scientific research. While some solutions proposed at Stage II seem to give successful results when they are tested in a pilot project, policymakers seem to be failing in being able to replicate the results when these projects are scaled up.

Over the series of my blog posts, I will first be introducing the replication crisis, as has been observed in other fields; then I will analyze successful pilot projects which failed to replicate their success when they were scaled up and attempt to draw out the commonalities between them. Finally, I will try to provide best practices that might help policymakers in designing pilot projects which eliminate some of the commonly observed factors leading to their failure on being scaled up.

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The Indian Child Welfare Act: Past Acts and Future Reform

My name is Nandini Ruparel, and I am a second-year student at Santa Clara University Law School. This semester, I will be focusing my research on the Indian Child Welfare Act (ICWA), enacted by Congress in 1978. ICWA requires that, if a child becomes a dependent of the court and may be eligible for membership in a federally recognized tribe, the tribe has primary jurisdiction over the proceedings. In a practical sense, it means that if the child is eligible for membership in a Native American tribe, it is likely that the child will end up with a family from that tribe. Each individual tribe has different eligibility requirements for membership.

ICWA was enacted in response to a disproportionate amount of Native American children being taken from their homes and placed in non-Native families. Congress found that local social services–and the social workers they employ–lacked cultural and historical understanding of tribal customs and familial child-raising practices.

Currently, there are only two Supreme Court cases that set precedent regarding tribal rights within ICWA; Adoptive Couple v. Baby Girl, decided in 2013; and Miss. Band of Choctaw Indians v Holyfield, decided in 1989. Neither concerned equal protection questions or the constitutionality of ICWA. Last year, in October, however, a federal judge in Texas struck down ICWA as unconstitutional because it uses a race-based classification. The 5th Circuit issued a stay of proceedings, meaning that ICWA, as written, is still in force until the court hears the expedited appeal in March of this year.

In my exploration of the topic, I will be researching the following questions:

  1. What happens to children who are put back in tribal families because of ICWA? Do they feel less/more connected to their heritage? What does the research say, and is there any research that compares the outcomes of these children as compared to foster care kids in general?
  2. What are some policy ideas that have been suggested regarding ICWA? Currently, ICWA remains unchanged from its enactment in 1978, despite bills from congressmen and women over the years to amend the act—some as recently as 2003 (pdf, J-STOR).
  3. Who does support ICWA, and why? Who does not, and why? For example, some research says that ICWA puts the best interests of tribes over the best interest of the child and is unconstitutional under the equal protection doctrine. Others say that the act is the only way to protect Indian tribes from discriminatory acts by social service agencies.

Ultimately, I want to use this research to answer this key question: if we were going to propose policy changes to ICWA, what would be the best changes to benefit both children and their Native American families?

New Criminal Law and Policy Focus: Foster Care

Welcome to this year’s edition of the Criminal Law and Policy Blog, a product of the Criminal Law and Policy Seminar at Santa Clara University School of Law. We will be focusing on the legal and policy implications of the foster care system in California. As with my past courses on marijuana legalization and bail reform, both of which resulted in statewide policy changes, the goal for this class is for students to produce work that informs policymakers and interest groups. I decided that I wanted the class to focus on this subject because I think it’s important–and tragic–that we, as a society, can know the statistics about the life outcomes of foster children and not do better than we are doing. Despite the subject’s importance, I actually don’t know much about the foster care system other than two things: first, that we sometimes unnecessarily terminate parental rights, we sometimes unnecessarily don’t, and it’s hard to tell the difference, and second, that children who are placed in foster care often end up in the criminal legal system.

Continue reading “New Criminal Law and Policy Focus: Foster Care”

Scientifically Assessed “Risk-Based” Bail isn’t Perfect! (But It’s Still a lot Better than Money Bail)

My series (part 1, part 2,) of posts have sought not to focus on the flaws of the money bail system (my colleagues have done an admirable job), but to highlight an alternative – risk-based bail.  I’ve discussed tools that are better indicators of a defendant’s risk than the proverbial gut, the history of national bail reform and the 4 elements that make up risk-based bail, and an insider’s look into effective implementation of risk-based bail here in the federal Northern District of California. However, there are still those who believe a risk-based bail system is not as effective as money bail. This post assesses the arguments proposed by the status-quo crowd.

There are a wide variety of arguments by proponents of the money bail system. The sources of these arguments are similarly varied, from bail bond associations, legislators, judges, and even civilian comments on websites (First Amendment exercise at its finest). However, the two most prominent arguments seem to be the following:

  • Money bail is a great incentive for defendants to show up to court
  • A money bail system is free to society and taxpayers

When assessing the system (in practice not just theory) it is still clear, money bail is a bad deal, and one we can no longer afford.

Continue reading “Scientifically Assessed “Risk-Based” Bail isn’t Perfect! (But It’s Still a lot Better than Money Bail)”

The Socioeconomic Consequences of Being Accused of a Crime

The leading arguments in favor of restricting bail and pretrial release are that those who are accused of crimes pose a danger to society and will fail to appear at their court date. Former Attorney General Holder, the highest ranking legal officer in the country, recently noted that non-violent defendants “could be released . . . and allowed to pursue or maintain employment, and participate in educational opportunities and their normal family lives—without risk of endangering their fellow citizens or fleeing from justice.” Yet two-thirds of the 500,000 un-sentenced individuals currently awaiting trial in jail are low risk, meaning they are identified as “posing no significant risk to themselves or the community with a likelihood of reappearance at subsequent court dates.” These “low risk” individuals, when forced to remain in jail due to their financial status, face very high risks to their socioeconomic status. The purpose of this post is to explore the socioeconomic consequences pretrial detainees are forced to endure due to their incarceration.

The Supreme Court has endorsed the idea that an arrest is an act that can “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and friends.” It logically follows that that excessive, and even short term, pretrial detention can make these problems exponentially worse. Continue reading “The Socioeconomic Consequences of Being Accused of a Crime”

¿HA SIDO DETENIDO POR UN DELITO MENOR?

Este semestre, la clase del derecho penal investigó la forma de fianza que opera en el condado de Santa Clara. La clase descubrió que las personas que han sido detenidos y llevados a la cárcel principal no tienen acceso a la información necesaria sobre la liberación durante el proceso de reserva (booking). Mientras que hay anuncios con información de las empresas comerciales de fianza, no hay nada publicado en “el tanque” para explicarle a la gente que es posible ser liberado sin necesitar que pagar nada pagar por su liberación antes de la conclusión de su caso. Erin Callahan escribió acerca de los posibles problemas que esto podría causar a las personas acusadas de un delito menor.

Después de aprender acerca de este problema, mi colega Ruby Renteria y yo decidimos crear un documento que les explique a los individuos que pueden ser elegibles para salir automáticamente con una promesa de regresar a corte y la liberación propia (OR) que podría ser publicado en el tanque. Hicimos la hoja que se encuentra abajo y se la presentamos a el Grupo de Fianza y Liberación (Bail and Release Work Group) de el condado de Santa Clara. Esperamos que esto marque el inicio para asegurarnos que esta hoja se agá disponible para las personas que necesitan esta información.

OR Worksheet_SPANISH

Lose your job or lose your freedom?

Imagine that you were arrested on an alleged misdemeanor offense and the court has allowed your release from custody on a promise to appear (own-recognizance) to your scheduled court date. You work full-time, are the primary or only breadwinner of your family, and you live on a low-wage paycheck-to-paycheck basis. You’ve told your boss in advance that you have a mandatory court proceeding to attend and, based on that conversation, you now fear that your boss will fire you if you miss that day of work to attend court. As the day of your court hearing approaches, you must make a critical decision between attending court or attending work. No matter which one you choose, the consequences for not choosing the other are grave; if you miss work you will potentially get fired and struggle with meeting basic life necessities for you and your family, if you miss court an arrest warrant will likely be issued against you along with additional charges pursuant to your failure to appear (FTA).

The Problem

There is no empirical data in California that demonstrates how often individuals fail to appear as a result of fearing employer retaliations. There is also no empirical data to show how often individuals are terminated after they have missed work to attend a court hearing. This data may be difficult to obtain for two reasons: first, employer motives are challenging to track, and second, there is the possibility that employees do not tell their employers about their court dates for a variety of reasons.

A survey in Nebraska of about 8,000 misdemeanants from different counties found that “the highest-rated reasons for non-appearance reflect very practical, instrumental factors (e.g., “had scheduling [or work] conflicts.”) (pdf, go to page 24). The Bail and Release Work Group of Santa Clara County stated that individuals miss court appearances “for many reasons unrelated to a desire to avoid justice—including inability to miss work” (pdf, go to page 20). From both my personal observations in court and my interviews with professionals in the criminal justice system in Santa Clara County, it appears common for defendants to miss their court date out of fear that they will lose their job for missing work. (Class/personal interview with Public Defender Ms. Panteha Saban, 4/13/16. Email interview with pretrial service agent, 4/15/16.) So what if there was legal protection that would prohibit an employer from retaliating against an individual who gave advance notice and missed work in order to attend a mandatory criminal court proceeding? Continue reading “Lose your job or lose your freedom?”