Bail decision making and pretrial detention: Surfacing judicial policy.

Abstract

Bail practices became the target of reform efforts during the 1960's and 1970's not only because of issues concerning economic bias against indigent defendants but also because of criticism of the bail decision itself. Questions were raised about the appropriate uses of bail (e.g., to prevent flight or pretrial crime, or to inflict pretrial punishment), the rationality of the criteria relied on by judges in deciding bail, and the discretionary allocation of pretrial detention through high cash bail. In this article, case law and statutes governing bail practices in the United States are reviewed first to characterize the ambiguous legal framework from within which bail judges must operate. Then bail decisions in a large urban jurisdiction are analyzed as a case study to discover the factors most influential in determining pretrial release options. It is inferred that, even after years of reform, community-ties measures do not play a major role in the bail decision or the determination of pretrial custody; rather, the nature of the charged offense appears most influential. A finding of special significance is that a large proportion of these decisions could not be explained systematically (i.e., a large share of variance remained unexplained). The article concludes by suggesting a guidelines approach to bail that could narrow disparity in bail options and the use of detention, enhance the rationality of the decision process and contribute to more equitable pretrial practices.