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.