Racial and Ethnic Disparity in Pretrial Criminal Processing
Abstract
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.
... Research on judicial decisions at pretrial is more limited and tends to emphasize stereotypes, organizational norms, and risk avoidance (Schlesinger, 2005;Sutton, 2013). The uncertainty avoidance perspective suggests judges rely on criminal history and severity of current charges that become connected to attributions of an individual's demographic characteristics (e.g., age, race, and sex; Albonetti, 1991). ...
... Attribution theory focuses on the application of negative racial and ethnic stereotypes as relevant legal factors increase their salience. This can result in racialized attributions being applied to People of Color resulting in judges finding certain individuals more blameworthy or culpable for certain crimes (e.g., drugs and violence; Schlesinger, 2005). ...
... We highlight three important features of pretrial decision making (Schlesinger, 2005). First, judges have incomplete information such that they may rely on an availability heuristic to reduce uncertainty by connecting prior criminal history and current offense with attributions related to someone's demographics. ...
This paper provides the results of a thought experiment to see what would have happened if a jurisdiction made release decisions solely based on risk assessment predictions of new arrests. Random forest imputation is used with data from all admissions to a large county jail system (n = 28,188) to forecast new arrests for individuals detained by the court. After imputing outcome rates for the detained, we rank order everyone by their predicted probability of future arrest from lowest to highest probability and compare release and new arrest rates between the predicted outcomes and observed release decisions. The results show the risk-based release approach has the potential to reduce the detained population by 7% and reduce new arrests by 13% compared to current practices.
... For example, Black individuals are more likely to be held pretrial than similarly situated White persons (Demuth & Steffensmeier, 2004). In addition, Black individuals are less likely to be released on recognizance than White individuals (Freiburger & Hilinski, 2010) and more likely to be denied bail, and when bail is set, Black individuals are significantly less able to afford bail (Demuth, 2003;Schlesinger, 2005). Most research on pretrial detention suggests that women are less likely to be held in jail awaiting trial (Demuth & Steffensmeier, 2004). ...
... Prior research has shown pretrial detention and its consequences disproportionately impact Black individuals, men, and economically disadvantaged persons (Demuth, 2003;Demuth & Steffensmeier, 2004;Schlesinger, 2005). Given the documented disparities in jail incarceration and pretrial processing, we focus on understanding how race, gender, and living in a high-poverty neighborhood intersect to shape an individual's length of stay. ...
... Our analysis focuses only on individuals booked into jail via pretrial admission. The study thus centers on the pretrial population that has been highlighted as the source of racial disparities, particularly around the bail and release processes (Ball & Growette Bostaph, 2009;Demuth & Steffensmeier, 2004;Freiburger & Hilinski, 2010;Schlesinger, 2005). Individuals who were admitted to jail for a probation or parole violation, an outstanding warrant from another agency, or a hold for another agency (i.e., U.S. Immigration and Customs Enforcement) were omitted from this analysis because they typically will not have bail set and are subject to different legal processes than the traditional pretrial population (e.g., Kentucky Supreme Court Order 2017-2019, 2017; Missouri Rules of Criminal Procedure, 1979;U.S. v. Salerno, 1987). ...
Research Summary
The average length of jail stays is increasing despite national efforts to reduce these populations. The current study examines variations in lengths of stay, differentiating between short and long pretrial stays. Using data from two large jails in metropolitan jurisdictions, we take an intersectional perspective and model potential differences among race, gender, and residing in a high‐poverty area. In both locations, we find that Black men are the most likely to have long lengths of stay, but that length of stay varies depending on the intersection of gender, race, and neighborhood poverty.
Policy Implications
The human costs of pretrial detention are paid unequally by different groups of people. Given the downstream costs of pretrial detention, this work suggests that focusing policy efforts on the barriers to release among people of color, particularly Black men, would be fruitful. There is evidence that bail reform can reduce some barriers to release without increases in crime. Further, attending to obstacles to case processing could lead to pretrial system reform. This work also highlights another area of the criminal legal system where Black males, compared to their White counterparts, are disparately affected and denotes the continuing need for intersectional perspectives on reform.
... Racial and socioeconomic disparities in bail practices mean the health risks of pre-trial detention disproportionately affect low-income, nonwhite communities. Research has revealed that Black individuals arrested for violent crimes are 33 percent more likely to be denied bail than comparable white defendants (Schlesinger, 2005). Among those given bail, bond amounts differ by race, such that Black, Asian, and Hispanic defendants face bond amounts averaging $15,352, $34,258, and $13,529 higher than white defendants, respectively (McDowell, 2019). ...
... Most concerningly, the 1984 Act left assessment of "danger" and bail assignment to judges without provisions to prevent bias (Bail Reform Act of 1984, 1984. This leeway 4 United States v. Salerno, (481 U.S. 739 1987) effectively allowed courts to punish accused individuals regardless of guilt, and judge evaluations of "dangerousness" were often biased, as racial bias alters impressions of flight risk and potential danger (Arnold et al., 2018;Riley, 2020;Schlesinger, 2005). The 1984 Act was unsuccessfully challenged in the 1987 United States v. Salerno (Carlucci, 2020). ...
... Актуарные методы, использующие технологию искусственного интеллекта, обещают стать эффективным способом снижения предвзятости при освобождении под поручительство и вынесении приговора. Однако искусственный интеллект хорош лишь настолько, насколько хороши данные, на которых его обучали; но в течение многих лет мы систематически наблюдаем расовую предвзятость при освобождении под поручительство (Demuth & Steffensmeier, 2004b;Schlesinger, 2005;Turner & Johnson, 2005) и вынесении приговора (Demuth & Steffensmeier, 2004a;Spohn & Holleran, 2000;Western, 2006). ...
Objective: to analyze the positions of judges on risk assessment tools using artificial intelligence. Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological. Results: Artificial intelligence (AI) uses computer programming to make predictions (e.g., bail decisions) and has the potential to benefit the justice system (e.g., save time and reduce bias). This secondary data analysis assessed 381 judges’ responses to the question, “Do you feel that artificial intelligence (using computer programs and algorithms) holds promise to remove bias from bail and sentencing decisions?” Scientific novelty: The authors created apriori themes based on the literature, which included judges’ algorithm aversion and appreciation, locus of control, procedural justice, and legitimacy. Results suggest that judges experience algorithm aversion, have significant concerns about bias being exacerbated by AI, and worry about being replaced by computers. Judges believe that AI has the potential to inform their decisions about bail and sentencing; however, it must be empirically tested and follow guidelines. Using the data gathered about judges’ sentiments toward AI, the authors discuss the integration of AI into the legal system and future research. Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the legal risks of using artificial intelligence.
Research summary
This study provides a rigorous assessment of the public safety benefits of pretrial detention by estimating the criminogenic and punitive effects of spending at least 1 week in pretrial detention across three jail systems in two states. We use a doubly robust difference‐in‐differences design to show that pretrial detention increases the odds for someone to miss a court appearance or be arrested by roughly 50% and increases the odds of convictions by 36%. This evidence was support by a series of supplemental analyses demonstrating that spending more than 1 day and spending more than 3 days in pretrial detention increased the odds of negative pretrial outcomes compared to someone who was booked and released from jail. The findings of this study provide evidence that pretrial detention can be counterproductive to public safety in that it leads to increased likelihood that individuals will miss court and be arrested for new crimes.
Policy implications
Jails are a unique criminal justice contact point because they hold individuals at different stages of case processing, including individuals awaiting trial, and those serving shorter sentences or waiting to be transferred to prison. Pretrial release is arguably one of the most consequential decisions in case processing for an individual. Combining our findings with the punitive and collateral effects of time spent in pretrial detention signals a need for policies to identify effective methods of release that maximize liberty, safety, and equity and minimize the criminogenic effects of pretrial detention. Jails are inhabited with pretrial detainees, detention makes outcomes worse for these detainees, and detention does not deliver on public safety as intended. We argue that a more limited and targeted use of pretrial detention is needed and more research attention on alternatives to pretrial detention.
The United States Constitution guarantees every citizen access to counsel to fundamentally preserve the right to a fair trial. Over two-thirds of criminal defendants lack the resources to secure an attorney and are thereby deemed indigent by the court. The dearth of generalizable data for indigent defendant outcomes leads legal scholars to cite the pragmatic and theoretical mechanisms for evaluating the effectiveness, or lack thereof, of publicly funded defenders. Empirical evidence is restricted by studies conducted in specific jurisdictions and on particular stages within criminal processing. Consequently, a broad understanding of indigent defendants’ outcomes is limited and often disjointed; thus, underscoring the need for a systemic evaluation of the current empirical literature. The goal of the current study was to conduct a meta-analysis on studies of outcomes for people with public defenders, assigned counsel, and retained attorneys to better understand what (if any) discrepancies exist in criminal legal outcomes as a function of indigent defense status. Specifically, this study examined the current empirical literature on pretrial, case, sentencing, and post-case outcomes for indigent defendants compared to defendants with private/retained attorneys and for those with public defenders compared to assigned counsel. Overall, results showed that indigent defendants experience worse outcomes across court processing stages than defendants with retained counsel. Results showed fewer discrepancies between defendants with public defenders and assigned counsel. Findings suggest that the disadvantages indigent defendants experience in criminal legal outcomes are likely an effect of systemic and individual biases rather than a consequence of ineffective counsel.
Using federal court data collected by the U.S. Sentencing Commission for the years 1993-1996, this study examines racial/ethnic differences-white versus black versus white-Hispanic versus black-Hispanic-in sentencing outcomes and criteria under the federal sentencing guidelines. Regression analyses of incarceration and term-length decisions reveal considerable judicial consistency in the use of sentencing criteria for all defendants; however, important racial/ethnic disparities in sentencing emerge. Consistent with theoretical hypotheses, the authors find that ethnicity has a small to moderate effect on sentencing outcomes that favors white defendants and penalizes Hispanic defendants; black defendants are in an intermediate position. Hispanic drug offenders are most at risk of receiving the harshest penalties, and their harsher treatment is most pronounced in prosecutor-controlled guidelines departure cases. These findings highlight both a classic organizational tension noted by Weber and a fundamental dilemma in policy efforts to structure sentencing processes (formal rationality) while allowing for judicial and prosecutorial discretion (substantive rationality). The findings also broaden our view of the continuing significance of race in American society-as a matter confronting not only blacks but also Hispanics and perhaps other ethnic groups as well.
Although the possible effect of race on sentencing decisions is a much-studied question, even recent studies suffer from methodological problems. This paper attempts to correct these problems by using a large number of cases and a large number of offenses, by dividing the sentencing decision into two separate decisions, by using an appropriate scale to measure sentence severity, by including controls for relevant legal and extra-legal factors, and by using multivariate analysis. Our major findings are that race does not have a direct effect on sentence severity, but that blacks are more likely than whites to be incarcerated.
It is well known that crime rates, when examined by residential area, are positively correlated with racial composition. This is usually interpreted to mean that racial composition affects crime rates, although there is debate over why. We consider an alternative interpretation: that reciprocal causal effects exist between these two variables. The crime rate itself may change the racial composition of an area by making it a less desirable place in which to live and invest. This hypothesis is tested with longitudinal data for a national sample of suburbs for the period 1970 to 1990. We find significant and approximately equal causal effects in both directions; specifically, it is the robbery component of crime that affects racial composition. High robbery rates are associated with black population growth while stimulating white flight.
This study analyzes data for state criminal defendants prosecuted in New York to determine the bases upon which judges make pretrial release decisions for these defendants. Treating statutory law as defining the category of legal variables, it finds legal factors substantially affect decisions about whether to release a defendant on recognizance, the amount of bail required, and whether to offer a defendant a cash alternative to a surety bond. The impact of these factors varies, however, depending upon the particular decision being made. Factors not prescribed in the statute-extra-legal factors-are also found to affect these pretrial release decisions. Their impact, too, is decision context specific. Among the extra-legal factors that affect pretrial release decisions, the effects of status characteristics of the defendant pale in comparison to the effects of bench bias and measures of the defendant's dangerousness.
Studies of juvenile court processing are reviewed and found generally to contradict a discrimination argument Nevertheless,
enough evidence of disparity exists to justify a search for contingencies under which discrimination is more or less likely
to occur. The literature yields five contingent hypotheses which we test using data from 31 counties in Florida. The results
suggest that differential sanctioning is not a pervasive phenomenon but rather that it is contingent on whether the individual
is a member of an aggregate which poses a threat to elites. But it appears that the relevant threats are not strictly political
but are mostly of a symbolic, social-psychological nature wherein white adults react to resented youthful traits often stereotypically
associated with nonwhites. The results suggest that theoretical development about differential sanctioning will require deemphasis
on the ability of individuals to resist power and a strengthened focus on the contingencies under which power is wielded.
Despite extensive sociological research, little evidence exists on how court officials' perceptions of offenders influence their classification, assessment, and final recommendations for punishment. We examine the links among these factors, focusing specifically on the race of the accused. Our analysis combines information from probation officers' written accounts of juvenile offenders and their crimes and court records about the offenders. We find pronounced differences in officers' attributions about the causes of crime by white versus minority youths. Further, these differences contribute significantly to differential assessments of the risk of reoffending and to sentence recommendations, even after adjusting for legally relevant case and offender characteristics. These results suggest that differential attributions about the causes of crime act as a mediating factor between race and sentencing recommendations.
Explorations of differential justice suggest that apparent relationships between class, race, and legal treatment may be explained by the more extensive conviction histories found among lower class and minority populations. But these findings have emerged without adequate exploration of the antecedents of a defendant's criminal record. This article examines the determinants of accumulated criminal histories, viewing the conviction awarded a defendant as the first stage in the construction of a prior offense record. Path analytic techniques were applied to data drawn from a sample of persons arrested for murder in order to examine the nature of relationships among the demographic characteristics of defendants, their prior offense records, access to legal resources, and ultimate dispositions. Patterns evident from the analysis suggest that the operation of the criminal record in the legal system constitutes a continual cycle in the confirmation of criminality. Prior record, itself partly a product of discretionary treatment, becomes a salient factor in the accumulation of additional convictions not only through its direct effect but also through its influence on access to private counsel and bail, which in turn significantly affect outcome.