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.
... There are further growing concerns about the influence of a person's sex in combination with their race-ethnicity on judicial decision-making during the pretrial release process. Pretrial scholarship routinely shows that racial-ethnic minorities are more likely to be detained prior to trial than White individuals (Demuth, 2003;Schlesinger, 2005). Research further suggests that while White females are the most likely to be released during pretrial, racial-ethnic minority males are the most likely to remain detained (Demuth, 2003;Schlesinger, 2005). ...
... Pretrial scholarship routinely shows that racial-ethnic minorities are more likely to be detained prior to trial than White individuals (Demuth, 2003;Schlesinger, 2005). Research further suggests that while White females are the most likely to be released during pretrial, racial-ethnic minority males are the most likely to remain detained (Demuth, 2003;Schlesinger, 2005). One of the leading theoretical explanations for these disparities is that pretrial decisions are governed more by informal norms and organizational practices than by formal legal rules (Sutton, 2013). ...
... It is particularly alarming to consider that these courtroom actors may rely on cognitive heuristics, including stereotypes about criminal behavior and dangerousness to inform their decisions about pretrial release (Kang et al., 2011). If judges and prosecutors unwittingly associate males and racial-ethnic minorities with criminality, for instance, they may be more likely to take actions to detain rather than release individuals with these characteristics prior to trial, which stands in stark contrast to the public expectations that judicial officials should make decisions that are free from bias (Hochschild & Weaver, 2007;Schlesinger, 2005). ...
... These consequences are not evenly distributed; Black and Latino people disproportionately experience pretrial detention (e.g., Demuth, 2003;Demuth & Steffensmeier, 2004;Martinez et al., 2020;Peterson & Omori, 2020), and thus disproportionately experience the immediate and long-term tolls associated with existing pretrial practices (e.g., Dobbie et al., 2018;Kutateladze et al., 2014;Wooldredge et al., 2015). For instance, prior research demonstrates that Black and Latino people are more likely than White people to be detained pretrial (e.g., Demuth, 2003;Freiburger et al., 2010;Schlesinger, 2005). This work also documents that Latino people are more likely to have money bail required, and to be assigned a higher bail amount, despite being less able to pay (Demuth, 2003;Demuth & Steffensmeier, 2004;Schlesinger, 2005). ...
... For instance, prior research demonstrates that Black and Latino people are more likely than White people to be detained pretrial (e.g., Demuth, 2003;Freiburger et al., 2010;Schlesinger, 2005). This work also documents that Latino people are more likely to have money bail required, and to be assigned a higher bail amount, despite being less able to pay (Demuth, 2003;Demuth & Steffensmeier, 2004;Schlesinger, 2005). Explanations of this "triple burden" experienced by Latino individuals center on the perceptions of courtroom workgroup members that Latinos pose a greater risk of flight or are more dangerous, perhaps due in part to stereotypes connecting Latinos to crime (and drug crime in particular) or their perceived dissimilarity due to their status as noncitizens or recent arrivals (Demuth, 2003). ...
... by members of racial and ethnic minority groups, Black and Latino individuals may be less able to pay bail, and as a result, the cash bail system may result in disparities even when judges make unbiased decisions (Demuth, 2003). Finally, judges may view certain groups as more dangerous and/or as having a higher flight risk due to stereotypes associated with race, ethnicity, and citizenship status (Arnold et al., 2018;Schlesinger, 2005). As such, judges may make more punitive decisions when the defendant is Black, Latino, and/or a noncitizen. ...
Prior work establishes that Black and Latino people face harsher treatment during the pretrial phase of the justice system. Yet, the mechanisms underlying pretrial racial and ethnic disparities remain unclear. Using multiple administrative data sources from a large jurisdiction in the southeast, we examined the influence of race, ethnicity, and citizenship on judicial decisions and defendant outcomes among people booked for a felony (n = 29,735). Of particular interest was the extent to which previously observed racial and ethnic disparities may be attributable to citizenship. Our results indicate that (1) Black and Latino people receive more punitive judicial decisions and experience worse pretrial outcomes than Whites, net of citizenship status; (2) noncitizens receive more lenient judicial decisions and experience better pretrial outcomes than citizens; and (3) citizenship status interacts with ethnicity, such that among noncitizens, Latinos suffer the worst outcomes of all groups. Implications for research and theorizing are discussed.
... Actuarial methods using AI technology hold promise as an effective way to help reduce bias in bail and sentencing; however, AI is only as good as its trained data, and there have been years of systemic racial bias within bail (Demuth & Steffensmeier, 2004b;Schlesinger, 2005;Turner & Johnson, 2005) and sentencing decisions (Demuth & Steffensmeier, 2004a;Spohn & Holleran, 2000;Western, 2006). Therefore, it is essential to understand the limitations of AI. ...
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?” 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, we discuss the integration of AI into the legal system and future research.
... These consequences of pretrial detention are not experienced equally by all. Research consistently demonstrates disparities in pretrial release decision-making, in that people of color-and Black men, in particular-are more likely to receive stricter conditions for release or be detained during the pretrial period (Arnold et al., 2018;Demuth & Steffensmeier, 2004;Pinchevsky & Steiner, 2016;Schlesinger, 2005;wooldredge et al., 2015). ...
We examined how the presentation of risk assessment results and the race of the person charged affected pretrial court actors’ recommendations to release a person with or without conditions. A sample of 246 pretrial court actors read vignettes that varied risk framing (success, failure), risk format (probability, frequency), risk level (low, high), and race of the person charged (Black, White). Pretrial release recommendations did not differ as a function of framing or format overall or by race. Pretrial court actors were more likely to recommend release with conditions compared with release without conditions in the high- versus low-risk groups when the person was White but not when the person was Black. Findings fail to support changes to the presentation of pretrial risk assessment results as strategies to enhance their impact on release recommendations and underscore the need for efforts to ensure equitable application of risk assessment results for people of color.
... Third, incarcerating someone prior to their trial is arguably one of the most consequential decisions in case processing for an individual (Schlesinger, 2005). Surveys and interviews reveal that respondent's view pretrial detention as more uncertain, hectic, and painful than serving prison time (May, Applegate, Ruddell, and Wood, 2014). ...
... To that end, sentencing researchers have adopted different methodological strategies. Some have attempted to pinpoint the sources of disproportionality by measuring the effects of decisions throughout the course of a criminal case (Kutateladze et al., 2014;Schlesinger, 2005;Wooldredge et al., 2015). Other researchers have examined the structural and contextual conditions under which ethnicity and race come into play (e.g., Spohn, 2015). ...
Objectives:
Hispanic individuals are a growing proportion of the general and carceral populations in the United States. This study examined the relationship between the type of sentences (prison, jail/probation) given to White, non-Hispanic individuals and to similarly situated individuals who were perceived to be Hispanic (any race) or perceived to be White but, based on validated estimates, self-identified as Hispanic.
Hypotheses:
Psychological theory indicates that, for group-based stereotypes and attitudes to impact decisions, decisionmakers must first identify and categorize target individuals as members of the relevant group. Following this theory, we predicted that individuals perceived by members of the criminal justice system to be Hispanic will be more likely to be sentenced to prison than similarly situated individuals perceived to be White. However, sentences of individuals predicted to have been misperceived as White but to self-identify as Hispanic will not differ from those of individuals accurately perceived as White.
Method:
We analyzed official state records of more than 220,000 unique sentencing decisions for nearly 200,000 individuals under state correctional supervision between 2005 and 2018, including demographic characteristics, statutory crime-seriousness and criminal-history scores from state sentencing guidelines, and sentencing outcomes.
Results:
Even after controlling for crime severity and criminal history, we found that individuals who were labeled as Hispanic in criminal justice records were nearly twice as likely to be sentenced to prison as those who were labeled as White (odds ratio [OR] = 1.95, 95% confidence interval [CI] [1.86, 2.04]). By comparison, individuals who were labeled in criminal justice records as White but, on the basis of validated estimates, were predicted to self-identify as Hispanic had the same likelihood of being sentenced to prison as individuals who were accurately perceived to be White (OR = 1.01, 95% CI [0.94, 1.07]).
Conclusions:
Results suggest that ethnic stereotypes or attitudes regarding Hispanic individuals may negatively impact criminal sentencing decisions regarding people perceived as Hispanic by actors in the legal system. (PsycInfo Database Record (c) 2023 APA, all rights reserved).
... Data from policecivilian encounters indicate that Black individuals are more likely than White individuals to be stopped by police (e.g., Gelman et al., 2007;Pierson et al., 2020), searched after having been stopped (e.g., Baumgartner et al., 2018;Fagan et al., 2016;Langton & Durose, 2013), subjected to police use of force (e.g., Morrow et al., 2017;Scott et al., 2017), and arrested (e.g., Kochel et al., 2011;Mitchell & Caudy, 2015). Once arrested, Black individuals are more likely than White individuals to be charged with crimes that have mandatory minimum sentences (Rehavi & Starr, 2014) and assigned higher bail amounts or denied bail entirely (Schlesinger, 2005(Schlesinger, , 2007. At trial, Black defendants are issued longer sentences than White defendants (e.g., Spohn, 2000Spohn, , 2015 and are disproportionately sentenced to death (Death Penalty Information Center, 2020). ...
Objective:
Despite documented racial disparities in all facets of the criminal justice system, recent laboratory attempts to investigate racial bias in legal settings have produced null effects or racial-bias reversals. These counterintuitive findings may be an artifact of laboratory participants' attempts to appear unprejudiced in response to social norms that proscribe expressions of racial bias against Black individuals. Furthermore, given pervasive stereotypes linking Black people with crime and heightened attention to issues of racial injustice in the legal system, laboratory participants may be especially likely to attempt to appear unprejudiced in studies examining judgments of Black individuals in legal as opposed to nonlegal contexts.
Hypotheses:
We predicted that counterintuitive race effects (null and pro-Black effects) are more likely to occur in laboratory research examining race in legal than in nonlegal contexts.
Method:
We conducted a quantitative review of race effects in three leading social psychology and legal psychology journals over the last four decades (Personality and Social Psychology Bulletin [PSPB]; Law and Human Behavior [LHB]; Psychology, Public Policy, and Law [PPPL]). We then conducted two experiments in which students (N = 314; Experiment 1) and Mechanical Turk workers (N = 695; Experiment 2) read descriptions of White and Black targets in either legal or nonlegal contexts and rated each target along various characteristics (e.g., dangerous, trustworthy).
Results:
Our analysis of the literature indicated that counterintuitive race effects were more frequent in studies examining race in legal compared with nonlegal contexts. Our experiments likewise revealed that pro-Black race effects were stronger in legal than in nonlegal contexts.
Conclusions:
Laboratory research on racial bias against Black people-especially in legal settings-may produce misleading conclusions about the effects of race on important real-world outcomes. Methodological innovations for studying racial bias are needed. (PsycInfo Database Record (c) 2023 APA, all rights reserved).
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.
In New Mexico and many other jurisdictions, judges may detain defendants pretrial if the prosecutor proves, through clear and convincing evidence, that releasing them would pose a danger to the public. However, some policymakers argue that certain classes of defendants should have a “rebuttable presumption” of dangerousness, shifting the burden of proof to the defense. Using data on over 15,000 felony defendants who were released pretrial in a 4‐year period in New Mexico, we measure how many of them would have been detained by various presumptions, and what fraction of these defendants in fact posed a danger in the sense that they were charged with a new crime during pretrial supervision. We consider presumptions based on the current charge, past convictions, past failures to appear, past violations of conditions of release, and combinations of these drawn from recent legislative proposals. We find that for all these criteria, at most 8% of the defendants they identify are charged pretrial with a new violent crime (felony or misdemeanor), and at most 5% are charged with a new violent felony. The false‐positive rate, that is, the fraction of defendants these policies would detain who are not charged with any new crime pretrial, ranges from 71% to 90%. The broadest legislative proposals, such as detaining all defendants charged with a violent felony, are little more accurate than detaining a random sample of defendants released under the current system, and would jail 20 or more people to prevent a single violent felony. We also consider detention recommendations based on risk scores from the Arnold Public Safety Assessment (PSA). Among released defendants with the highest risk score and the “violence flag,” 7% are charged with a new violent felony and 71% are false positives. We conclude that these criteria for rebuttable presumptions do not accurately target dangerous defendants: they cast wide nets and recommend detention for many pretrial defendants who do not pose a danger to the public.
After arrest, criminal defendants are often detained before trial to mitigate potential risks to public safety. There is widespread concern, however, that detention decisions are biased against racial minorities. When assessing potential racial discrimination in pretrial detention, past studies have typically worked to quantify the extent to which the ultimate judicial decision is conditioned on the defendant's race. Although often useful, this approach suffers from three important limitations. First, it ignores the multi‐stage nature of the pretrial process, in which decisions and recommendations are made over multiple court appearances that influence the final judgment. Second, it does not consider the multiple actors involved, including prosecutors, defense attorneys, and judges, each of whom have different responsibilities and incentives. Finally, a narrow focus on disparate treatment fails to consider potential disparate impact arising from facially neutral policies and practices. Addressing these limitations, here we present a framework for quantifying disparate impact in multi‐stage, multi‐actor settings, illustrating our approach using 10 years of data on pretrial decisions from a federal district court. We find that Hispanic defendants are released at lower rates than white defendants of similar safety and nonappearance risk. We trace these disparities to decisions of assistant US attorneys at the initial hearings, decisions driven in part by a statutory mandate that lowers the procedural bar for moving for detention of defendants in certain types of cases. We also find that the Pretrial Services Agency recommends detention of Black defendants at higher rates than white defendants of similar risk, though we do not find evidence that these recommendations translate to disparities in actual release rates. Finally, we find that traditional disparate treatment analyses yield more modest evidence of discrimination in pretrial detention outcomes, highlighting the value of our more expansive analysis for identifying, and ultimately remediating, unjust disparities in the pretrial process. We conclude with a discussion of how risk‐based threshold release policies could help to mitigate observed disparities, and the estimated impact of various policies on violation rates in the partner jurisdiction.
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.