“The roughest form of social work:” How court officials justify bail decisions

Growing research has analyzed quantitative patterns of bail decisions and outcomes, but we know far less about how court officials justify their bail decisions. To enhance understanding of how bail decisions—and their resulting pretrial outcomes—are generated, we interviewed 104 judges, prosecutors, and public defenders in a northeastern state. Court officials in our study reported three primary justifications at bail: ensuring defendants return to court, preventing crime, and lessening harm. The first two justifications have been suggested in the literature, but the latter is novel and encompasses two secondary justifications: lessening criminal legal system harm and lessening societal harm. We show how these justifications and the decisions they enable blend risk management with rehabilitation and emerge from court officials’ shared assumption of defendants’ social marginality but varied beliefs about what to do about such marginality pretrial. Each justification allows for distinct, but at times overlapping, bail decisions. We discuss the implications of our findings for theories of court official decision-making, research on racial and socioeconomic inequality, and bail reform policy.     

RACIAL AND ETHNIC DIFFERENCES IN PRETRIAL RELEASE DECISIONS AND OUTCOMES: A COMPARISON OF HISPANIC,BLACK, AND WHITE FELONY ARRESTEES*

The present study uses data on the processing of felony defendants in large urban courts to examine Hispanic, black, and white differences at the pretrial release stage. The major finding is that Hispanic defendants are more likely to be detained than white and black defendants. And, racial/ethnic differences are most pronounced in drug cases. In fact, Hispanic defendants suffer a triple burden at the pretrial release stage as they are the group most likely to be required to pay bail to gain release, the group that receives the highest bail amounts, and the group least able to pay bail. These findings are consistent with a focal concerns perspective of criminal case processing that suggests Hispanics as a newly immigrated group are especially prone to harsher treatment in the criminal case process.     

The Impact of Race on the Pretrial Decision

This study examined the effect of race on the pretrial release decision for drug offenders. Although this decision point has not been examined as extensively as the final sentencing decision, it is a critical discretion point which impacts defendants’ future sentencing outcomes. The results found that race had a significant impact on judges’ decisions to release a defendant on recognizance, with black defendants less likely to receive this release status. Race was not significant, however, in the decision of bail amount or in the likelihood to post bail. These results are consistent with the focal concerns perspective which suggests that black defendants are viewed by courts as more dangerous and blameworthy and thereby, less likely to be released on their own recognizance.     

Determining an optimum percentage of defendants to release before trial: Applying inventory modeling concepts to legal policy problems

Some aspects of determining what proportion of defendants to release before trial are discussed using cost and other data obtained from judges, prosecutors, defense attorneys, and bail project directors in twenty-three cities. Various holding costs, releasing costs, and percentages of defendants held are used. Smooth curves are fitted to the data points to determine at what percentage of defendants held the total cost curve bottoms out. The effects of varying the costs and the cities, the causal implications of why the optimum percentage differs substantially from the actual percentage, and the policy implications of using the analysis in pretrial release policy and in reducing the total costs are shown. Ways in which the model can be expanded to obtain insights into the optimum level of various kinds of due process and law enforcement are also indicated.     

PRETRIAL RELEASE AND BAIL DECISIONS

This study examines the relative effects of a number of legal and extralegal factors on (1) the decision to release on recognizance and (2) the decision on amount of money bail. Social science research on these issues has been sparse compared to that on other phases of the criminal justice process. Findings from a regression analysis show that the first step of the bond disposition process, the recognizance decision, is influenced by several factors. The demeanor of defendants in open court is the most important. Net of other influences, good demeanor increases the probability of release on recognizance by 34.8%. In cases where recognizance is denied, only two variables are related significantly to the amount of money bond. Net of other influences, a felony offense (as opposed to a misdemeanor) increases predicted bail by $2300, and poor demeanor increases the predicted bail required by $1600.     

A comparison of bail amounts for hispanics, whites, and african americans: A single county analysis

Using 1996 data on defendants accused of felony offenses derived from a district court in a Midwestern jurisdiction, the authors employ bivariate and multivariate analyses to examine for significant differences between Hispanics and other racial and ethnic groups in the dependent variable, bail amount set by judge. To predict differences in the bail amount set by judges for Hispanic and other defendants, the multiple regression controls for two independent “legal” variables, prior arrest and seriousness of the instant offense, and for the “extra-legal” variables of age, gender, type of attorney, residency, and race. Our research shows that Hispanics receive higher bail amounts than White or African Americans; leading the authors to cast doubt on the tenets of “legal theory” which has gained attention as a model for explaining why members of racial or ethnic minorities receive harsher treatment at various stages of the criminal and juvenile justice system.     

Bail agents and bounty hunters: Adversaries or allies of the justice system?

Bounty hunters are employed by the bail industry to locate and apprehend criminal defendants who “skip” bail and, subsequently, fail to appear for court appointments. While some scholars have examined bounty hunters, this work is concerned primarily with the origins, history, and legal challenges to the industry and its practices. Popular literature on this subject has created the “myth” of the bounty hunter, but it has failed to provide an accurate portrayal of the activities these individuals perform. Through the use of field research methods, this study provides a better understanding of the role that bail agents and bounty hunters play in the criminal justice system.     

Race as a Factor in the Judicial Decision of Bail Amount in a Midwestern Jurisdiction

Abstract

Data collected on all felony defendants during 1996 from a district court in a Midwestern county were examined for racial differences in the setting of bail. While we hypothesized that African Americans would receive higher bail amounts than whites, we found no independent effect of race on bail amounts either before or after applying controls for legal variables-seriousness of offense and prior arrests-and extralegal variables-sex, age, residency, and type of attorney. Thus, we were compelled to reject our hypothesis. Seriousness of offense and the interaction between offense seriousness and race were statistically significant in the regressions.     

The effect of race and gender on bail outcomes: A test of an interactive model

This paper responds to suggestions that researchers interested in the relationship between defendant race, defendant gender, and criminal justice outcomes broaden their focus to include pretrial decision making. We used data on defendants charged with violent felonies in Detroit Recorder’s Court to analyze the effect of race and gender on the amount of bail imposed by the judge and on the defendant’s pretrial status. We found that judges take gender, but not race, into account in determining the amount of bail for certain types of cases; more specifically, Black females faced lower bail than Black males in less serious cases. In contrast, we found that both race and gender affected the likelihood of pretrial release. White defendants were more likely than black defendants to be released pending trial and females were more likely than males to be released prior to trial. In fact, white females, white males, and black females all were more likely than black males to be released. An earlier version of this mansucript was presented at the annual meeting of the American Society of Criminology, Phoenix, AZ, October, 1993.     

He Versus She: A Gender-Specific Analysis of Legal and Extralegal Effects on Pretrial Release for Felony Defendants

The current study sought to identify significant predictors of pretrial processing for both male and female defendants in an aggregate sample. The data used in this study were taken from the State Court Processing Statistics, 1990–2000: Felony Defendants in Large Urban Counties (Bureau of Justice Statistics, 2004 Bureau of Justice Statistics . ( 2004 ). State court processing statistics, 1990–2000: Felony defendants in large urban counties [ Computer file ]. Ann Arbor , MI : Inter-University Consortium for Political and Social Research . [Google Scholar]). The original sample included a total of 87,437 felony cases. The relationships between relevant independent variables and 5 separate dependent variables (denial of bail, non-financial release, amount of bail set, making bail, and pretrial incarceration) were analyzed using both multivariate regression and Z-score comparisons within gender-specific models. Findings suggest that the effects of certain independent variables on pretrial release decisions and outcomes are different between the gender-specific models.     

Speedy trial and the legal process

The role of speedy trial in state proceedings is empirically investigated for defendants in criminal homicide (N=444). Employing multiple regression techniques, an assessment is made of the relationship between the length of time involved in defendants' legal processing, their sociolegal status, and the final dispositions awarded by the court. The findings show that blacks and jailed defendants are processed more swiftly than their white and bailed counterparts. The consitutional guarantee of speedy trial also appears to be a state resource, in that cases adjudicated promptly result in higher conviction rates than those which are delayed. This is especially so for defendants who are not released on bail, and may be attributed to the prosecutorial success that accompanies the availability of witnesses whose memories are unclouded by time and the existence of a social climate that calls for retribution. While not related to postponement in the present study, it is suggested that the efforts of counsel in obtaining delay may become increasingly important with the adoption of the new federal guidelines.     

Incompetency to stand trial: As status,as label,and as potential source of sentencing disparity

Criminal defendants are considered to be incompetent to stand trial if they are unable to understand the proceedings against them and unable to cooperate adequately with their attorneys. The purpose of this study was to compare the sentencing patterns of a group of defendants who had raised this issue and been returned to court as competent, with those of a group of defendants who had not raised the issue. Results showed that raising the issue of incompetency seemed to be a significant factor in the consumption of court resources, and lessened a defendant's likelihood of having his or her case dismissed. It did not make a significant contribution to the explanation of the variance associated with sentence length or with the granting of probation.     

Defending the Accused: The Impact of Legal Representation on Criminal Trial Outcomes in Victoria,Australia 1861–1961

Access to legal representation by accused felons was entrenched as part of the adversarial system from the early nineteenth century, but a substantial minority of defendants remained undefended at superior court level well into the twentieth century. Using a sample of criminal trials collected across a crucial hundred-year period that saw the development of incipient legal assistance schemes, this article seeks to examine what effect the presence of defence counsel had on individual trial results. It is shown that there was a significant association between defence status and a variety of outcomes, including pleas, verdicts, trial length, bail status and sentencing. This relationship was to some extent affected by the specific offence with which the accused was charged, but remains evident across various other factors, including defendant ethnicity, sex, occupation and age, and lawyer assigned to the case. The results suggest that representation was highly desirable for defendants throughout this period.     

Racial and ethnic disparity in pretrial criminal processing

This study uses data on the processing of felony defendants in large urban courts to analyze racial and ethnic disparities in pretrial processing. There are three major findings. First, racial disparity is most notable during the decision to deny bail and for defendants charged with violent crimes. Second, ethnic disparity is most notable during the decision to grant a non‐financial release and for defendants charged with drug crimes. Third, when there is disparity in the treatment of Black and Latino defendants with similar legal characteristics, Latinos always receive the less beneficial decisions. These findings are consistent with the theoretical perspective offered, which suggests that stereotypes influence criminal processing when their specific content is made salient by either the concerns relevant to a particular processing decision or the crime type of a defendant’s primary charge.     

Forms of Bail in Common Law Systems

Although the system of commercial bail bonding which prevails in most jurisdictions in the United States has been condemned by scholars for over fifty years, little awareness exists in this country about the alternative forms of pre-trial release practiced in the other common law countries. Nevertheless, these countries share a common origin of their bail systems in that found in England in the Seventeenth and Eighteenth Centuries. This common root renders their respective practices mutual alternatives to each other.

Only one of these countries has followed the American example of a commercialized system. The systems employed by the other countries can be classified into one of four types depending on the principal means used to secure the appearance of the accused in court. Each type is examined through a study of a jurisdiction providing a typical example of the type. The recognizance based systems are represented by India. The criminalization systems are typified by the English example. The state of New South Wales in Australia exemplifies the non-financially based systems. Finally, the Union of South Africa provides an illustration of the non-commercial cash deposit alternative. Reference is made to other countries sharing each type where possible.     

The feasibility of a brief evaluation of mental state at the time of the offense

If psychological evaluations of criminal defendants could be performed in the community on an outpatient basis rather than in a distant state hospital on an inpatient basis, substantial savings could result and defendants' rights to speedy trial, bail, and the least restrictive alternative would more likely be respected. The authors thus developed a protocol, the mental state at the time of the offense screening evaluation (MSE), designed to enable outpatient evaluatiors to “screen out,” in the course of a brief interview, those defendants whose alleged criminal conduct clearly was not caused by “significant mental abnormality.” They tested the validity of the MSE by having pairs of mental health professionals use the MSE to evaluate 36 criminal defendants. The professionals' conclusions were then compared with the conclusions of state hospital professionals who performed a comprehensive evaluation of each defendant. They were also compared to court adjudications of the defendant's criminal charges. They found that the MSE screened out a large proportion of defendants (sufficient to suggest an improvement in cost-efficiency) without prejudice to those defendants who might have a valid legal defense.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

比较法视野中的刑事强制措施

从比较法的角度看,我国刑事强制措施制度具有立法授权的分散性和实际权力的集中性、适用对象的特定性和适用目的的单一性等特点,但在体系上过度依赖羁押性手段,在制度设计上未能充分体现人权保障的精神,司法实践中"惩罚性"地适用强制措施以及追诉机关自我授权和执法违法的现象比较突出。为了保障公民的人身自由不受非法侵犯,应当对适用强制措施的权力进行重新分配,形成以强制到案的措施和强制候审的措施为基本类型的强制措施新体系,将取保候审设计为最常用的一种强制措施,并且完善相关的配套制度,健全适用强制措施过程中的权利救济机制。     

TOWARD A THEORY OF BAIL RISK

Criteria which are commonly employed in the assessment of the bail risk (failure to appear) are examined. based on samples of defendants released in Philadelphia, Delaware. and Delaware County, Pennsylvania. The original release on recognizance criteria offered by the Manhattan Bail Project is contrasted with a factor analytical model of bail risk produced through the present study. Counter to the original construct, community ties are reflected in two separate factors rather than one. Findings suggest a reassessment of the meaning of community ties with respect to bail risk. In contrast to the original interpretation, basedprincipally on length of time in a community and contacts with friends and relatives, successful performance of adult male roles in the community reflected by marriage and its associated responsibilities appears to be more important in assessing bail risk. The community ties factor, however, may be a byproduct of differential local community social structure and process.     

The processing and disposition of incompetent mentally ill offenders

Pretrial hospitalization of mentally ill offenders has been increasing in recent years and a number of abuses have been noted with respect to competency to stand trial. This is a report on 431 male felony defendants who were found incompetent to stand trial, hospitalized, and returned to court for a final disposition. Approximately one-half of those brought back to the court gained release to the community, with one-half continuing to be held in a hospital or a prison, and with 70% continuing in treatment in one setting or another. Disposition was significantly related to race, criminal history, severity of charges, and the recommendations of mental health professionals. Offenders were found to have spent unnecessarily long periods of time in jail and in the hospital awaiting court processing, raising questions about the fairness and efficiency of current procedures.