Factors of pretrial release conditions in a felony and misdemeanor court: An analysis of six models
vii TABLE OF CONTENTS
Chapter I: INTRODUCTION 1 Statement of the Problem 3 Description of Study 7
Chapter II: LITERATURE REVIEW 9 Bail in America 12 History of Bail in America 12 Role of Bail Bonds Industry 14 Relationship between Race & Bail Decisions 18 Bail and Class 23 Bail and Gender 26 Bail Reform in America 28 Implications of 1966 Reform Act 32 Identifying Predictors of Pretrial Release 41 Development of Bail Empirical Studies 44 Bail Guidelines 52 Summary 55 Contribution to the Literature 58
Chapter III: RESEARCH QUESTIONS & HYPOTHESES 62
Chapter IV: METHODS 66 Description of Data Collection Site 66 Description of Court Jurisdiction- City and County 67 Population and Sample Selection 68 Pretrial Service Interview Protocol 69 Pretrial Release Guidelines 71 Data Collection 72 Data Collection Instrument 73 Analysis of Logistic Regression 74 Models to be analyzed: Logistic Regression 76 Limitations of the Study 79
Chapter V: RESULTS OF LOGISTIC REGRESSION ANALYSIS 81 Descriptive Data of Independent and Dependent Variables 83
Chapter VI: DISCUSSION 97 Results of Hypotheses tested 97 Current Charge 100 Criminal History 102 Impact of Community Ties 103 Demographic Factors 105 Non-Significant Outcomes 107 Summary: The direction of Judicial Decision-making 107 Contribution to the literature 112
Chapter VII: RECOMMENDATIONS AND CONCLUSION 112
ix LIST OF TABLES
Table 1. Rate of release by offense 10
Table 2. Crime rate: county and national comparison 68
Table 3. Description of logistic regression models 76
Table 4. Descriptive information: Independent variables (Defendant information) 82
Table 5. Descriptive information: Independent variables (Criminal information) 84
Table 6. Descriptive information: Dependent variables 87
Table 7. Logistic regression model: Misdemeanor Released on own recognizance 88
Table 8. Logistic regression model: Felony defendants Released on own recognizance 90
Table 9 Logistic regression model: Misdemeanor & Felony defendants Released on bail 91
Table 10. Logistic regression model: Misdemeanants who remained in custody 92
Table 11. Logistic regression model: Felony defendants Who remained in custody 94
x Table 12. Logistic regression model: Defendants who failed to appear after Pretrial release bail from custody 95
Table 13. Status of hypotheses tested 99
LIST OF FIGURES
Figure 1. Distribution of bail issued by percentage 86
Appendix A. County bail schedule 121
Appendix B. Charges eligible for preventive detention in the State of California 124
Appendix C. Data collection instrument 126
Appendix D. County criminal court process 129
Appendix E. SPSS syntax 130
CHAPTER 1 INTRODUCTION
In most non capital felony and in nearly all misdemeanor offenses, defendants are assigned bail as a financial or conditional guarantee that they will return for future court appearances. Constitutional protections under the Eighth Amendment and legislation under the Bail Reform Acts direct that bail and release conditions should not be excessive and should be least restrictive based upon the circumstances surrounding the criminal charge and characteristics of the defendant. Under the Bail Reform legislation, judges have the discretion to detain defendants without bail if they have been charged with certain capital or serious felonies that carry penalties of lengthy prison sentences or if they are considered a flight risk if they were to be released prior to trial. Pretrial release has an effect among all parties involved in the criminal court process. The judge must take into consideration the crime allegedly committed, the perception of dangerousness, and the likelihood that the defendant will return for future
2 appearances (Demuth, 2003, p. 873). The defendant is most directly affected by the pretrial release decision. The consideration of pretrial release has a tremendous impact on his or her ability to be connected to family and community, to maintain employment, and to be an agent in his or her own defense. Typically, defendants who remain in custody while their cases are heard in court have limited options, are confined in the same conditions as convicted inmates which arguably, is deemed an unjust punishment (Feeley, 1979). Finally release decisions can deeply impact the level of punishment during the penalty phase (Dhami, 2005, p. 368). Defendants who are detained at pretrial are more likely to receive harsher sentences that defendants who bailed out. Also, the dynamics of race, class and gender in pretrial court processing is important to consider as well. According to the National Institute of Justice (2002), minority defendants represented nearly 70% of defendants who were processed through American courts in addition to the overwhelming rate of indigent defendants who are represented by the public defender’s office or who
3 remain in jail because of their inability to secure bail. Statement of the Problem
The Bail Reform Acts of 1966 and 1984 have provided the courts with the discretion to release defendants with the least restrictive pretrial release condition or detain them because of concerns of dangerousness; there are still three problems that remain. The first is that it is not clearly understood how municipal and superior courts have interpreted these Acts as a foundation in making decisions about the release conditions of their defendants. Bail guidelines are designed to inform (or regulate) judges in determining pretrial release conditions based upon a defendant’s likelihood of being a danger to the community or flight risk. In fact, both case law and empirical studies have suggested that in some jurisdictions, bail guidelines are extremely broad and fail to provide the courts with structure in minimizing risk of defendant misconduct. It is also unclear as to what extent non legal factors such as race, gender or class influence release decisions. This is particularly important in
4 court jurisdictions where there is no clear rubric as to how release decisions are made. A second problem is the concern that there is little understanding as to how judges determine the release conditions of misdemeanants. Certainly, misdemeanor convictions yield lesser punishments than felony charges and are generally assigned bail in most situations. However, misdemeanor charges of domestic violence, drug possession, and assault are offenses that can bring about serious harm to the defendant, witnesses and victims. While misdemeanor charges may not be as serious as felony charges, such offenses can still create the potential for danger to the victim, danger to society and can create a situation where defendants are likely to fail to appear for court appearances. The third problem involves the accuracy of the judicial decision in determining release conditions. If judges are making release decisions hastily it may lead to poor outcomes of defendant misconduct after release or it may lead to defendants who do not pose a future threat to society yet remain detained because they cannot make bail. These problems are relevant in understanding pretrial release decisions for several reasons. First,
5 county criminal courts process criminal cases at exceedingly high volumes each year and it is important to assess the factors that judges use in determining release conditions. Moreover, the general public have become increasingly attentive with the criminal processing of defendants in their communities based upon world events such as terrorism, the increase in legislation pertaining to dangerous offenders (such as three strike laws, sex offender registries and sexually violent civil commitment laws) and the increase in “real crime” media programming (such as Tru TV, prison documentaries, and high profile criminal cases). Recent celebrity involvement in the criminal justice system has led to scrutiny over the privilege and equitable treatment in the criminal justice system. There is a demand from both community and academic circles to assess (or reevaluate) this area of the judicial making process clearly. Secondly, these problems are relevant in understanding release decisions of misdemeanor defendants because defendants who are charged with misdemeanor crimes may not be distinct from defendants who are charged with felony crimes. A defendant who is arrested on felony charges for a dangerous offense
6 may be arraigned on misdemeanor charges because of the lack of evidence or the prosecution’s assessment that felony charges are unlikely to yield a conviction. It is also possible that a defendant who is charged with a misdemeanor may have an extensive criminal history of violent behavior and numerous felony convictions. Finally, it is relevant to identify whether judges are making good predictions based on the type of release condition that is rendered. The judge is making a clinical diagnosis of the defendant’s likelihood to return to court (Feeley, 1979). The result of this decision can evolve into several realties. The ideal situation would be that the judge predicted correctly in releasing defendants who posed no greater risk than someone currently at liberty and detaining the defendant who posed the greatest dangerousness to the community. Other results remain problematic. One outcome could be that the defendant is denied pretrial release but in fact would not have committed any other crime while on release and would return to all court appearances. The result of this error could be an inefficient use of taxpayer resources in detaining the defendant in custody and a denial of freedom when the arrestee is regarded as
7 innocent until proven guilty. In an opposite outcome, a defendant is released from custody and commits an illegal act (or harms someone) while on release or failure to appear. This could pose a threat to the safety of the victim and general community. Pretrial release decisions have both immediate and long-term effects and it is worth investigating the patterns of judicial decision-making on pretrial release. Description of Present Study This study will engage the previously stated problems associated with the judicial determination of pretrial release conditions and their outcomes. Specifically, the purpose of this study is threefold: 1.
To identify the factors that judges consider in making decisions about the pretrial release conditions of misdemeanor or felony defendants. 2.
To determine whether non legal factors such as race, class, or gender influence pretrial release conditions. 3.
To assess if the pretrial release condition that was rendered was the correct decision as determined by the pretrial performance of the defendant.
8 To respond to these concerns, the study will analyze from a dataset comprised of defendants considered for pretrial release in a county Superior Court (N=1076). The dataset includes several categories of variables which include the demographic characteristics of the defendant, current and prior criminal history, the pretrial release decision type and pretrial misconduct of defendants who were released. Findings will shed light on the factors that influence release decisions in local courts. This study will provide an overview of the history of bail, bail reform legislation and case law. The literature review will also present prior research that has explored the factors of pretrial release in state and local court decisions and the role that non legal factors such as race, gender or class may also play in the determination of pretrial release decisions. The methods section will offer a thorough description of how the study will be carried out. A detailed account of the population to be studied, sampling frame, data collection, variables to be analyzed and the statistical techniques to be employed will also be discussed.
9 CHAPTER 2 LITERATURE REVIEW
The central element surrounding the judicial determination of pretrial release is the issue of bail. Bail refers to the general financial or conditional guarantee that a defendant secures in order to be released from custody. The purpose of bail is to guarantee that the defendant will return for future court appearances. The financial guarantees of bail are divided among four categories: surety bond, deposit bond, property bond, and full cash bond. A surety bond is a financial agreement between the defendant and the bail bondsmen. The defendant pays a non refundable premium (generally 10% of the bail) to the bondsman and the bondsman pays the entire bail to the court. If the defendant does not appear in court, the bondsmen will forfeit the entire amount. Defendants assigned a deposit bond pay a percentage of the assigned bail to the court as a condition of release. Defendants who utilize property bonds as a condition of release must surrender the deed and insurance policies of their property to the court.
requires that the full amount of the bond be posted before release. Non-financial forms of bail are divided among own recognizance, conditional and unsecured release. Release on own recognizance (ROR) is the release on the defendants’ written promise to return for future court appearances. Unsecured bail is the written promise that the defendant will return to court but that the judge will impose the full cash amount of bail if the defendant fails to appear. A conditional bond also releases the defendant without a financial guarantee; however, the court may impose conditions such as a restraining order, curfew, or abstaining from the possession of firearms and alcohol . Table 1. Rate of Release by Offense
On Bail Non- Financial Release Unable to Bail Out Denied Bail Violent offenses 34% 17% 41% 8% Property offenses 27% 29% 37% 6% Drug offenses 32% 28% 35% 5% Public-order offenses 38% 27% 30% 5% Driving-related 46% 24% 27% 4% Other public- order 30% 36% 28% 6% Source: Bureau of Justice Statistics 2004
According to the Bureau of Justice Statistics (2004), most defendants, regardless of their current criminal charge, will be issued a condition for pretrial
11 release. However, a third of all defendants (regardless of the offense they are charged) will be held in custody because of their inability to make bail (i.e. to pay the money the court requires as represented in Table 1). From the judge’s perspective, he or she must consider many factors in deciding the pretrial release condition, most often in a short period of time. In addition to making decisions quickly, judges may not have the complete information regarding the case or of the defendants before them (Schlesinger, 2005). At the heart of this is actuarial criminology where judges either depend on structured or informal guidelines in order to assess the risk of a defendant’s flight or danger to the community to make such decisions. Steffensmeier and Demuth (2004), Albonetti (1991) and Schlesinger (2005) have suggested that judges use focal concerns in determining release and sentencing. The “focal concern” hypothesis takes into account three important areas that judges consider: the blameworthiness of the defendant, the severity of the offense charged and the defendant’s criminal history. With the exception of the first focal concern, this project has operationalized the severity of offense by
12 analyzing release decisions of misdemeanor and felony courts. The defendant’s criminal history is measured by analyzing a series of variables including prior convictions, prior imprisonment and prior failure to appear for previous court appearances. History of Bail in America The development of policies in the United States pertaining to bail stem from England’s Common Laws and more specifically the English Habeas Corpus Act of 1679 and Bill of Rights of 1689. The transfer of these English provisions to the U.S. Bill of Rights protected the rights of the accused from judicial abuse and reinforced their rights to liberty while their cases were heard in court. It was based on these concerns that that led to the drafting of the Eighth Amendment of the American Bill of Rights that asserted that “Excessive bail shall not be required…” (U.S. Const., amend. XIII, § 1.).
The excessive bail clause does not state that there is a right to bail. Foote (1965) suggests that the absence to the right to bail in the Bill of Rights was an error carelessly omitted by the drafters of the constitution. He argues that George Mason, the drafter of the Virginia Declaration of Independence
13 (which later became the template for the Bill of Rights), made the assumption that the right to be free of excessive bail was synonymous with the right to bail (p.986). The Eighth Amendment states that it is unconstitutional for courts to warrant bail amounts that are disproportional to the charged offense. However, there is no clear definition as to what is considered proportional or excessive. These decisions are decentralized, left to the individual states to determine, and therefore there is great variability in the definition and operationalization of bail. In fact, “…there is widespread disagreement about the exact social control function that the bail system should serve, most agree that the bail system is in need of reform” (Ebbesen & Koncêni, 1985, p.180). Most defendants in custody in county detention facilities are unable to pay for their bail. For indigent defendants in jail, a bail that is set between five hundred and one thousand dollars is just as impossible to secure as bail that is set at one million dollars. Such failure to pay bail has been a leading factor in jail overcrowding and unsafe conditions in city and county facilities (Feeley,
14 1979; Goldkamp, 1977; Phillips, 2004). Ability to secure release hinges on financial resources regardless of whether the accused is charged with serious or minor crimes. Bail can create a clear division between the affluent and the indigent. Defendants who are charged with dangerous or socially offensive crimes are released because of their ability to pay, whereas individuals who are charged with minor vagrancy are imposed to bail jail conditions due to indigence. Not only do these concerns call into question the issues of fairness and equity, but it creates a logistical issue of overcrowding conditions in the criminal justice system because of the high rate of poor defendants who cannot afford bail (Goldkamp, 1986).
Role of the Bail Bond Industry The bail bonds industry has a unique role within the criminal justice system and pretrial release. Bail agents are (arguably) in a better position than judges to determine which defendants will be released from custody. With certain exceptions (such as parole or probation violations where judges may deny bail altogether), most defendants will be granted bail at arrest and arraignment, but it is up to the bail agent
15 to establish the terms of the bail agreement and for the defendant to meet these obligations. The role of the judge is to grant pretrial release conditions on the basis of the flight risk and danger to the community; the objective of the bondsmen is solely financial gain. Despite these differences, the courts rely on bondsmen to minimize the overcrowding jail population as well as “assisting the courts administratively by clearing up mistakes and by identifying mandated court dates” (Baker et. al, 2008, p.125). In popular culture and particularly in the genre of reality television, society has come to look at bail agents as integral members of the criminal justice system that hold defendants accountable in meeting their responsibilities in appearing in court. Despite certain benefits of the services from bail bondsmen (i.e. the ability to pay a fraction of the cost of bail), the bail bonds industry has had a much longer storied and controversial past. A great deal of scrutiny has been targeted at skip tracers and/or bounty hunters (either the bail agent themselves or other personnel contracted through the bail agent who locate defendants who jump bail) and their practices in locating and returning defendants
16 back to court. Critics argue that bail bondsmen pursue absconders beyond the scope of the rule of law through the use of “excessive use of force, and apprehend suspects without government authorization” (Baker, et al. p.128). Additionally, allegations of corruption involving bribery among bail agents and judges have called into question the ethical nature of their business practices (Baker, 2008). The greatest concern, however, is whether the bail industry is able to provide liberty to the accused at a fair market price. Caleb Foote, a legal critic of the social inequities of bail, has written extensively on the quasi criminal justice role that the industry plays in determining freedom. One of Foote’s major criticisms is the line between what constitutes appropriate and excessive amounts of bail as stated in the Eighth Amendment. It is a matter that remains largely unsettled as the courts continue to have a lot of latitude in setting bail as established in the ruling of Stack v. Boyle (342 U.S. 1, 5 (1951),). The reality is that not every defendant is able to meet the financial obligation of bail. However, a defendant’s inability to secure bail does not make the bail amount unconstitutional:
17 Bail must be in a prohibitory amount, more than the accused can reasonably be expected under the circumstances to give, for if so it is substantially a denial of bail within the constitutional provision. However, a mere inability to procure bail in a certain amount does not itself make such amount excessive (Foote, 1965, p.960).
Indigent defendants face the greatest obstacles in securing bail. Foote argued this group of socially disadvantaged defendants is less likely to be released and is more likely to experience the severity of punishment through incarceration before being convicted (Foote, 1965, p.960). Foote had further expressed in a series of articles (1956, 1960, and 1965) that the unintended purpose of bail is the means to socially control the undesirables in society. Due to the ability of the courts to set bail without significant oversight, judges have set bail high enough to make it impossible for defendants (or their associates) to be able to afford it. In his observations of the courts in Philadelphia he noted the overt discriminatory practices where Judges were quick to throw unkempt, intoxicated, or out of town loiterers in the Philadelphia House of Detention without much thought or due process (Foote, 1956). This haphazard and
18 questionably unconstitutional response to defendants in Philadelphia (as well as other jurisdictions across the country) was perhaps responsible for the overpopulation of many of America’s county jails. The Relationship between the Race and Bail Decisions The role and impact of race, gender and class in bail decisions is a complicated issue to assess concretely for several reasons. In one sense, American jurisprudence requires as a matter of due process rights of the accused, equal protection under the law for any defendant who comes before the court without regard to race, gender or class membership. The Bill of Rights provides the accused with explicit protections such as the right to an attorney, the right to remain silent, the right to a trial by one’s peers without consideration to the “extralegal” factors of the accused. 1 In the interest of justice a judge or bail commissioner would not publicly admit that they take such factors into consideration for risk of professional and ethical scrutiny and public concern.
1 “Extralegal,” as Nagel (1983) and Zatz (2002) characterize it, is not synonymous will illegality but factors that, as Nagel defines, as “extra to the law, not specifically prescribed in the relevant statutory law” (Nagel, 1983, p.482).
19 In another sense, the United States has a rich, documented history of discrimination and the violation of civil rights among the socially disenfranchised populations. Such injustices were not limited to isolated incidents but were mirrored and reproduced within the criminal justice system and particularly within the courts. In many respects, gone are the overt days of Jim Crow and de jure segregation and in its place are the [S]ubtler matter, proceeding with a series of screens that filter [minorities] into more or less promising statuses, progressively dividing them along the lines full of implications for the economic futures and in the face of natural disaster, their very lives (Katz and Stern, 2008, p.63)
The impact of race permeates through all areas of life and subsequent life chances. Racial minorities are more likely to live below the poverty line, more likely to attend inferior schools and receive subpar educational opportunities. Racial minorities are more likely to face barriers to employment, healthcare, housing and citizenship. Such communities are more likely to be under greater surveillance of law enforcement and are also in greater likelihood of
20 being arrested in comparison to their White counterparts. Race carries tremendous weight within the larger context of society and subsequently affects relevant issues that are constantly raised within the criminal justice system. Attribution theory as tested in Schlesinger’s (2005) article explains that judges assign cultural stereotypes and generalizations to defendants when defendants are charged with offenses that are often carried out by members of that racial or ethnic group (p.173). When a defendant’s criminal behavior is inline with the stereotype of the ethnic group, the defendant is less likely to be seen as favorable in the court (Schlesinger, 2005). Similar to attribution theory, racial threat perspective (Albonetti, 1991; Free, 2005) suggests that defendants of color are more likely to receive harsher pretrial release conditions as a means to maintain racial dominance by the White establishment. Hinderaker and Johnson (2001) directly assert that racial injustice in the courts is commonplace and “…has become so widely accepted that it is no longer subject to debate” (p.26). Racial discrimination manifests in many opportunities particularly in
21 “racial profiling by the police, disproportionate poverty, incarceration and capital punishment” (Katz, & Stern, 2008, p.62). The literature on the influence of race on pretrial release offers varying theories and measures as to how race is factored into the bail decision process. By some accounts, the findings remain inconsistent (Albonetti, 1991, 247). Zatz (2000) points out that race affects bail decisions based on the type of crime that is alleged. In her work, the race of the defendant has a greater influence in bail decisions that involve less serious cases without the use of a firearm than defendants who are charged with serious felony cases where a gun is involved and when the victim is black. Petee’s (1994) research points out that Non- White defendants are collectively less likely to be released on own recognizance than White defendants. Demuth (2004) argues that race is not a significant factor to pretrial release decisions but is a factor that is entangled with socioeconomic status. In this work, Demuth sums up that “…if minority defendants are less able to pay for bail, then this disparate impact may amount to a form of de facto racial and ethnic discrimination”(Demuth, 2000,