By Joshua Grossman, Julian Nyarko, Sharad Goel

  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 has 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 the 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

Journal of Empirical Legal Studies, 2023;1–48.

By Chloe Anderson Golub, Melanie Skemer

On any given day, nearly 450,000 people in the United States—still legally innocent—are detained while awaiting the resolution of their criminal charges, many because they could not afford to pay the bail amount set as a condition of their release. In response, jurisdictions across the United States are making changes to their pretrial systems to reduce the number of people who are held in pretrial detention. As part of this effort, many jurisdictions are moving away from money bail as a primary means of encouraging people to return for future court dates. Instead, they are increasingly relying on strategies such as pretrial supervision, which requires released people to meet regularly with supervision staff members, and special conditions, such as electronic monitoring and sobriety monitoring. In theory, the added layer of oversight that these release conditions provide would encourage people to appear for court dates and avoid new arrests. Yet until the last two years, research on the effectiveness of these conditions was either limited (in the case of pretrial supervision) or had faced methodological limitations and yielded mixed findings (in the case of special conditions). A more rigorous understanding of the effectiveness of these release conditions is critical, particularly given their immense burdens and costs to both jurisdictions and people awaiting the resolution of their criminal charges. This brief synthesizes findings from three recent impact studies that assessed the effectiveness of varying intensities and modes of pretrial supervision, as well as electronic monitoring and sobriety monitoring, at ensuring court appearances and preventing new arrests. Among the most rigorous evaluations of pretrial monitoring conducted to date, these studies were set across five geographically diverse U.S. jurisdictions. Findings from each of the three studies are presented in the sections below, followed by a discussion of overarching policy and practice implications. In sum, these analyses suggest that more restrictive levels and modes of pretrial supervision and special conditions do not improve the rates at which clients appear in court or avoid arrest, at least among those assessed as having a low to moderate probability of pretrial noncompliance (that is, failing to appear in court or being rearrested during the pretrial period). Jurisdictions should consider reducing their reliance on these release conditions and instead seek less restrictive requirements to support pretrial compliance among this population. 

New York: MDRC,   2024. 7p.

By: Oded Oren, Chad M. Topaz, and Courtney Machi Oliva.

Key Findings:

1. An analysis of public pretrial data from 2020 - 2022 reveals that some New York City judges are disproportionately carceral, i.e., these judges are substantially more likely to order pretrial detention than their peers, even when accounting for factors such as the severity of the case and the defendant’s prior criminal history.

2. The fourteen judges who exhibited the most carceral discretion compared to their peers are Felicia Mennin, Gerald Lebovits, Quynda Santacroce, Josh Hanshaft, Kerry Ward, Bruna DiBiase, Gerianne Abriano, Beth Beller, Phyllis Chu, Alan Schiff, Tara Collins, Derefim Neckles, Joseph McCormack, and Lumarie Maldonado-Cruz.

3. These fourteen judges’ disproportionately carceral decisions over 2.5 years resulted in an estimated 580 additional people detained, 154 additional years of pretrial detention, and over $77 million of additional costs borne by New York City taxpayers

Key Recommendations:

1. Closer scrutiny of judges’ bail decisions is crucial because of the link between pretrial detention and increased recidivism rates, exacerbated racial disparities, and influence over case outcomes.

2. New York (and other jurisdictions) must evaluate whether judicial discretion should be constrained given that legislative efforts to reform bail have not prevented some judges from exercising discretion in disproportionately carceral ways.

3. New York lawmakers should consider the following approaches to constraining disproportionately carceral judges:

• Making additional judge-level data publicly available to all New Yorkers.

• Removing disproportionately carceral judges from overseeing criminal cases.

• Limiting judges’ discretion to detain, including by mandating release from detention upon the preparation of a release plan by holistic teams of experts.

Scrutinize, Institute for the Quantitative Study of Inclusion, Diversity, and Equity Zimroth Center on the Administration of Criminal Law at NYU School of Law, 2023. 29p.