After an individual has been ordered to stand trial for a criminal offense, a court often has several options on deciding a defendant’s disposition. The court may release defendants on their own recognizance or with the posting of bail, or it can detain them until trial. When making pretrial detention and release decisions, the court must weigh its responsibility to protect victims and the community against its responsibility to protect the defendant’s rights to due process. Research shows that pretrial detention “may interfere with the defendant’s ability to prepare an adequate defense and may lead to more severe sanctions upon conviction” (Demuth, 2003). For these reasons, advocates for defendants’ rights argue that the courts should try to impose the least restrictive pretrial situation possible to limit punishment before a verdict of guilt or innocence.
Pretrial detainment and release decisions are based on the type of offense, the defendant’s criminal history, employment history, and ties to the community; however, judges and prosecutors have a great deal of latitude in deciding individual cases. Some researchers believe that judges may also rely on social position and racial and ethnic stereotypes to inform their pretrial incarceration decisions (Schlesinger, 2005). This is especially important because of the personal and economic disadvantages associated with pretrial detention, particularly as it affects the ability to mount a successful defense. That the effect of pretrial detention can extend beyond detention itself can be seen in a study of defendants in 40 urban counties, in which Latino and black felony defendants were found to be about 26 percent more likely to go to prison than white defendants in similar circumstances, and the researcher concluded that a higher likelihood of pretrial detention was the major driver of this disparity (Sutton, 2013).
According to Demuth’s study of male defendants charged with similar felonies in the nation’s 75 most populous counties, Hispanic defendants are less likely to be released on bail, less likely to be released on their own recognizance (non-financial release), and more likely to have higher bail amounts imposed upon them (Demuth, 2003). Traci Schlesinger’s 2005 study of the processing of male felony defendants in large urban courts supported these findings. As in the Demuth study, Schlesinger found that Latino males were less likely to be released on their own recognizance and more likely to be denied bail than white males. Furthermore, their bail was set at significantly higher amounts (on average about 12 percent higher) than whites under similar circumstances (Schlesinger, 2005). In the group of defendants studied, the average bail amount for Latino defendants was $54,031, compared with just $28,340 for their white counterparts (See Figure 1).
These higher bail amounts compound the fact that Latino defendants often have fewer economic resources and networks, negatively affecting their likelihood of making bail. Figure 2 illustrates that of Latino defendants that were given the option to post bail only 33 percent were able to post bail, compared with 47 percent of blacks and 58 percent of whites (Schlesinger, 2005). The Schlesinger study also found that 51 percent of Latinos were incarcerated prior to trial, compared with just 32 percent of whites (Schlesinger, 2005). This finding was confirmed in analysis of Manhattan cases from 2010 and 2011, which showed that Latinos were three percent more likely to be detained pretrial than whites being tried under similar circumstances, due to either being denied bail or being unable to post it (Kutateladze, Tymas, & Crowley, 2014). Analyzing state court processing data from 1998 to 2004, Cohen and Reaves found similar disparities. After controlling for offense factors and criminal history, they found that Hispanics were less likely than non-Hispanic defendants to be released and that they were more likely to be charged with pretrial misconduct, including failure to appear and fugitive status (Cohen & Reaves, 2007).
In 2008, the U.S. Justice Department released a study it had funded on the probability of pretrial release for Latinos using various types of data from 1988 to 2004. It found that criminal history, failure to appear, and seriousness of current offense are the most significant predictors of eligibility for pretrial release. Nonetheless, Latinos and blacks are almost always less likely to be eligible for pretrial release than whites when differences are statistically significant (Levin, 2008). The report also noted, “what is of great concern is that these defendant-level disparities are increasing, not decreasing over time” (Levin, 2008). Further, the study found that Latinos are “being disproportionately placed on monetary bail” (Levin, 2008). Contrary to other researchers, Levin concluded that bail amounts were not influenced by defendants’ ethnicities, and that Latinos were more likely to post bail than whites.
Recent research, however, raises important doubts about risk assessments that fail to take account of race and ethnicity. A 2013 study examining predictors of success in federal pretrial release programs found factors that reliably predict outcomes for white and black defendants but not for Latino defendants. Latino defendants did not display any significant patterns of supervision success (Fennessy & Huss, 2013). The authors of the study attributed the variability found within the Latino group to its unique social and economic characteristics, such as immigration status. Only 23 percent of the Latino participants in the study were U.S. citizens, compared with more than 97 percent of black and white participants. Aside from the lack of predictability measures, the study found that Latino defendants had higher failure rates in supervision outcomes than their white and black counterparts. These two findings for Latino defendants—higher failure rates and lack of significant results in predicting outcomes—invalidates the “one size fits all” model of risk assessment for racial/ethnic groups (Fennessy & Huss, 2013).
Disparities between Latinos and whites during the pretrial release stage are magnified when immigration status is factored in. Immigration offenders who have committed immigration violations have one of the lowest pretrial release rates of any offense type. Only 16 percent of immigration offenders were released at some point before case disposition. This compares with about 35 percent of all defendants being released in cases terminated in U.S. federal court in 2010 (Bureau of Justice Statistics, 2012). An individual’s citizenship status plays a critical determining factor in the pretrial decision process. About 90 percent of undocumented defendants were detained pretrial (Cohen, 2012). Nearly 75 percent of Hispanic defendants in the federal courts between 2008 and 2010 were undocumented non-U.S. citizens, while only 20 percent of Hispanic defendants in the federal courts were U.S. citizens (Cohen, 2012).
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