Bail Amounts Research Articles

OBLIGATIONS RELATED TO THE APPLICATION OF A PREVENTIVE MEASURE IN THE FORM OF BAIL: PROBLEMS OF IMPLEMENTATION IN THE CONTEXT OF THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

The purpose of the article is to identify the problems in the fulfilment of the obligations related to bail as a preventive measure based on the approaches formulated in the case law of the European Court of Human Rights, as well as to offer recommendations on how to resolve them. Methods. The general philosophical basis of the study was formed by axiological and hermeneutical approaches. In particular, the first one allowed to carry out a value analysis of the fundamental human right to liberty and to assess the impact of the amount of bail to provide an effective alternative for the restriction of this right. Meanwhile, the second made it possible to apply an in-depth study and interpretation of the legal texts of the European Court of Human Rights judgments and the national legislation. When building the system of recommendations, we used the systemic and structural method, as well as the logical research method and the method of legal modelling with. Results and conclusions. The analysis of the legal positions of the ECtHR made it possible to conditionally single out the following standards and recommendations for national judges for ensuring the legality and reasonableness of the determination the amount of bail in criminal proceedings: 1) the main purpose of bail is to ensure the appearance of a person, not to punish him or her or to create conditions for compensation for the damage caused by a criminal offence; 2) the accuracy in determining the amount of bail as an alternative to possible keeping in custody should be equal to the thoroughness in justifying the continued keeping of a person in custody; 3) if the bail is provided by the suspect/accused, the key thing to consider when determining the optimal amount of bail is his/her assets (property status) and solvency. However, if the bail is provided by another person (the bail bondsman), the relationship between the bail bondsman and the suspect/accused should be taken into account to determine the effective bail amount; 4) the extent of the damage caused by the criminal offence may be taken into account as an exception when determining the bail amount - but this cannot be applied as a general rule due to the different purpose of the bail; 5) a suspect/accused person who is being considered the possibility of being granted bail must provide the court with information that may be necessary to adequately determine the amount of potential bail and be verified for this aim; 6) the amount of bail must be substantiated in the decision of the investigating judge or court, which will serve as an important guarantee of preventing arbitrariness; 7) failure of a person to fulfil the obligation to provide bail after it has been set may be a sign that the amount of bail is excessive and disproportionate for the suspect/accused.

Right to counsel? A mixed‐methods evaluation of the St. Louis County initial appearance program

AbstractResearch summaryLegal representation is a critical right in the criminal legal process, yet it is unclear when representation is guaranteed. Further, many individuals find obtaining legal representation difficult and expensive. The current study is an evaluation of an initial appearance program implemented in St. Louis County, Missouri. This mixed‐methods study focuses on understanding if and how providing counsel at initial appearance affects the bond amount, release type, and length of pretrial detention. Data from official court records and interviews with project staff and stakeholders suggest that early, free representation at arraignment can facilitate release on recognizance and lowered bail amounts. Results from a series of interaction models suggest that this type of programming may be able to help reduce some racial disparities. Our thematic analysis indicates that courtroom stakeholders see value in the program for the defendants, the criminal process, and the courtroom workgroup dynamics during pretrial stages.Policy implicationsThe results reflect the need for early representation in the legal process. Representation can potentially reduce some of the racial and ethnic disparities in case processing, which are relatively stark and can lead to downstream effects like a greater likelihood of recidivism and conviction. Currently, most funding for public defenders is inequitable to that of the prosecutor's office, and this work speaks to the necessity of providing representation that begins with the initial appearance and continues throughout the life of the case. This work also highlights how outside funding can be used to support more equitable and fair case processing in the criminal legal system.

Direct Individual Access to the Constitutional Judiciary: A Comparative Study of Iraqi and Kuwaiti Laws

Objectives: A few Arab constitutions have adopted direct individual access to the constitutional judiciary, most notably the Kuwaiti and Iraqi constitutions. This study aims to show how Kuwaiti and Iraqi laws regulate the requirements and procedures for individual access to the constitutional judiciary. It also aims to identify the best regulation for direct individual access to the constitutional judiciary. Methods: The study adopted the analytical and comparative method by conducting comparative analyses to identify the strengths and weaknesses of the legal texts covering direct individual access in the Kuwaiti and Iraqi constitutions, laws, and regulations. Results: Kuwaiti and Iraqi law made sure to organize individuals’ right to direct individual access by imposing certain requirements and clarifying the related procedures to prevent the constitutional judiciary from being overburdened with complaints. However, there is a need for better legal regulation for individual access to the constitutional judiciary by amending some requirements concerning the bail amount, legal representation, and procedures. Conclusions: There is incompetency in legally regulating direct individual access to the constitutional judiciary in Kuwait and Iraq. Kuwaiti and Iraqi laws should be amended to avoid impeding access to constitutional justice, which will develop the constitutional judiciary in Kuwait and Iraq to be able to carry out its duties in overseeing the constitutionality of laws and regulations.

Comparing the relationships between money bail, pretrial risk scores, and pretrial outcomes.

There has been much discussion around the use of both money bail and pretrial risk assessment instruments. We examine how bail and risk scores compare in terms of their associations with failure to appear in court and rearrest during the pretrial period. Our research questions included whether bail and risk scores differed between people who did and did not experience pretrial outcomes and whether pretrial scores were associated with outcomes when controlling for bail and other relevant covariates. To examine these associations, we drew a sample of 492 people (33% women; 60% Black) booked into county jail in a jurisdiction not yet using a pretrial risk assessment instrument to inform release decisions. We completed the Public Safety Assessment (PSA) for this sample and collected data on failure-to-appear and rearrest incidents for 1 year following initial bookings. We examined the associations between bail amount, failure to appear, and rearrest and between PSA subscale scores, failure to appear, and rearrest. Bail amount was not associated with either failure to appear or rearrest. People who failed to appear or were rearrested had higher bail amounts, on average, than people who did not. In contrast, PSA subscale scores were significantly associated with outcomes in the expected direction. Our findings do not support the use of money bail for ensuring that people return to court and avoid rearrest. Instead, our findings suggest that using pretrial risk assessment, instruments could result in more accurate and appropriate release decisions. (PsycInfo Database Record (c) 2022 APA, all rights reserved).

Tired Judges? An Examination of the Effect of Decision Fatigue in Bail Proceedings

The current study begins to answer the recent call for scholars to reinvigorate the use of observational data to understand courtroom decisions. Drawing on the psychological effects of decision fatigue, the current study examines 284 bail hearing cases from two New Jersey jurisdictions to explore the role of decision fatigue on judges’ engagement, judicial deviations from prosecutors’ recommendations, and set bail amounts. The results suggest that judicial fatigue, measured as case order and session duration, limited the engagement for one judge, affected set bail amounts for both judges, and that proceeding modality may play some role in fatigue and engagement. Findings also suggest that observational data can work in tandem with administrative data to give better insight into the court process and decisions. Limitations and future research are discussed.

Time to Bail out: Examining Gender Differences in the Length of Pretrial Detention Using Survival Analysis

Sixty-six percent of the total U.S. jailed population (over 400,000 people) are being held in pretrial detention, not convicted of any crime. Most remain in jail simply because neither they nor their families can afford the bail that a judge has assigned to them. Previous research shows that the assignment of bail is both biased and that being detained in jail negatively impacts later justice outcomes. Women, in general, have been more adversely affected in this area due to their overall fewer social and economic resources compared to men. A sample of 150 women and 150 men was used to compare how gender impacted the length of time it took defendants to bail out of a rural county jail in the southeastern U.S. Using previous literature, pathways theory, and the theoretical lens of an architecture of gendered violence, the authors tested for gendered differences in how quickly women and men posted bail once in pretrial detention. A combination of a Kaplan-Meier survival analysis and Cox proportional multiple-regression analysis indicated that women took significantly longer than men to post bail, while controlling for bail amount, age, and race. Implications for policy and research are discussed.

Examining the Relationship between the Lethality Assessment/Domestic Violence High-risk Team Monitoring (LAP/DVHRT) Program and Prosecution Outcomes.

Lethality assessment (LAP) and team monitoring of high-risk offenders (DVHRT) are recent U.S. policy innovations designed to identify domestic violence offenders who are at high risk for perpetrating serious or lethal violence against their intimate partners. One goal of LAP/DVHRT is to increase offenders' accountability for domestic violence within the legal system. This study examines associations between LAP/DVHRT and prosecution and sentencing outcomes using data on domestic violence offenses (n = 88) involving 37 offenders monitored by a DVHRT and 51 nonmonitored comparison offenders who were identified as high risk on the LAP. We use logistic and OLS regression to estimate models of six prosecution and sentencing outcomes for the full sample and for a sample matched using the coarsened exact matching technique (n = 73). Multivariate results indicate that when the treatment and comparison samples are matched and control variables are included in regression models, the LAP/DVHRT program is not associated with prosecution or conviction rates, number of charges, or bail amount. DVHRT monitoring is positively associated with sentence length in multivariate analysis and in models using the matched sample. Findings suggest that the LAP/DVHRT program increases offender accountability in the form of incapacitation at the sentencing stages.

Get Jailed, Jump Bail? The Impacts of Cash Bail on Failure to Appear and re-Arrest in Orleans Parish

Cash bail has come under increasing scrutiny because of the high number of defendants who remain detained pretrial when they are unable to afford their release. According to critics, this amounts to punishment on the basis of poverty, not crime. As a result, releasing defendants on their own recognizance (ROR) is becoming an increasingly popular reform implemented by cities and states. In this paper, we study individuals released pretrial by Orleans Parish Sheriff’s Office between December 2018 and November 2019 to understand the role and impacts of cash bail and ROR on failure to appear (FTA) and re-arrest rates. We find that ROR does not increase an individual’s likelihood of FTA, but drug tests, a common condition attached to ROR, do increase the chances of FTA. Additionally, larger cash bail amounts and longer times spent awaiting release are correlated with increased rates of re-arrest. We also find substantial disparities in pre-release conditions based on a defendant’s race. These results indicate that reducing or eliminating cash bail will not have a substantial impact on public safety and may have other benefits associated with justice and equity.

Compounding Injustice: The Cascading Effect of Algorithmic Bias in Risk Assessments

The increasing pervasiveness of algorithmic tools in criminal justice has led to an increase in research, legal scholarship, and escalating scrutiny of automated approaches to consequential decision making. A key element of examination in literature focuses on racial bias in algorithmic risk assessment tools and the correlation to higher likelihoods of high bail amounts and/or pretrial detention. These two phenomena combine to initiate a cascading effect of increased likelihoods for conviction, incarceration, harsher sentencing, higher custody levels, and barriers to parole, leading to negative impacts on other factors unrelated to criminal history, all of which feed into subsequent assessment instruments for defendants who are re-arrested. This escalating cascade of algorithmic bias errors has particularly dire consequences for Black defendants, who are statistically more likely to receive higher failure-to-appear (FTA) and recidivism risk scores than white defendants, and who are thus more likely to be negatively impacted by subsequent decisions, both human and computer-aided, throughout the criminal justice process. This is periodically referred to in literature as ‘disparate impact’ but lacks a deeper examination of broad-based effects. This Article endeavors to advance that examination by looking across multiple elements of criminal procedure and beyond to aid in understanding cascading effects and consequent injustices suffered by Black defendants due to the continued automation and encoding of societal biases into the criminal justice process.

The Impact of Counsel at First Appearance on Pretrial Release in Felony Arraignments: The Case of Rural Jurisdictions

This article examines the impact of early provision of counsel on judges’ pretrial release and bail decisions in two rural counties in upstate New York, in cases involving felony charges. This study builds upon previously reported research on misdemeanor cases. We note that although the stakes are higher in felony cases, few studies have investigated the dynamics of first appearance decisions at either level. We investigate the hypotheses that when defendants are represented by attorneys at their first appearances in court, (a) judges are more inclined to release on recognizance or under supervision, (b) judges impose less restrictive bail amounts, and (c) as a consequence, defendants spend less time detained prior to disposition. We find mixed support for these hypotheses, although some evidence that counsel at first appearance (CAFA) produces the expected outcomes. We conclude that the implementation of programs intended to ensure CAFA may be tempered by courthouse cultures, and that future research on court reform should include the study of rural jurisdictions.

Brief of National Law Professors of Criminal, Procedural, and Constitutional Law, In re Humphrey, California Supreme Court, Regarding the Imposition of Money Bail and Conditions of Pretrial Release

When the government proposes to incarcerate a person before trial, it must provide thorough justification, whether the mechanism of detention is a transparent detention order or its functional equivalent, the imposition of unaffordable money bail. A court contemplating money bail must determine whether it is likely to result in detention. If so, and the court nonetheless wishes to impose it, the court must find, by clear and convincing evidence established through an adversary hearing, that the unaffordable bail amount serves a compelling interest of the state that no less restrictive condition of release can meet. This will rarely be the case. Few defendants pose an acute risk of willful flight or of committing serious harm in the pretrial phase. For the vast majority, attainable conditions of release can adequately protect the state’s interests in ensuring appearance and protecting public safety, while also preserving the fundamental right to pretrial liberty. The principle that the government must thoroughly justify any order of pretrial detention is not radical. Rather, it is continuous with the historical commitments of the bail system. Clarification of this core constitutional mandate is essential to recovering a rational system of pretrial detention and release, and the freedom it protects.

Bail and Pretrial Detention: Contours and Causes of Temporal and County Variation

Despite growing interest in bail and pretrial detention among both academic researchers and policymakers, systematic research on pretrial release remains limited. In this article, we examine bail and pretrial release practices across seventy-five large U.S. counties from 1990 to 2009 and look at the contextual correlates of bail regime severity. We find tremendous intra-county variation in bail practices, as well as a nationwide decline in the use of nonfinancial release and doubling of bail amounts during this period. This variation is not accounted for by differences in case composition across jurisdictions or over time. Patterns of bail practices are associated with political, socioeconomic, and demographic factors, however. Implications of these findings for future research on bail and pretrial detention are discussed.

An Examination of the Impacts of Gender, Race, and Ethnicity on the Judicial Processing of Offenders in Family Violence Cases

Using the focal concerns perspective, the present study examined possible gender, race, and ethnic disparities on judges’ pretrial release, incarceration, and sentence length decisions in family violence cases. The results indicate that males were more likely to receive an order of bail (as opposed to release on own recognizance), received higher bail amounts, were less likely to make bail, were more likely to receive prison opposed to jail, and were incarcerated for significantly longer periods of time than women. Hispanic defendants were more likely than White defendants to receive higher bail amounts and were more likely to be detained until sentencing. Black defendants, on the other hand, were more likely to receive prison as opposed to jail than White offenders.

PERSPEKTIF FIKIH EKONOMI TERHADAP PELAKSANAAN AKAD “UTANG PIUTANG” PADA PERBANKAN SYARIAH DI SUMATERA BARAT

Th is study was purpose d at identify ing the various transactions in Islamic banking of West Sumat e ra were categorized on the “ debts ”; describing the implementation of the transaction ; and analyzing the various transactions we re based on the economic fiqh perspective. This study belongs to qualitative case study by using in-depth interviews as research instrument. The data were analyzed qualitatively based on the economic fiqh perspective, Al-Qur'an, Sunnah, Ijtihad the scholars, and the Fatwa of National Sharia Council (DSN) and Indonesian Council of Scholars (MUI). The results of this study revealed that the types of transactions we re categorized “ debts ” was murabaha h , qardh (bailout pilgrimage ), hiwalah, and rahn (pawn ing gold). Murabahah was present ed on all Islamic Bank but not all transactions on Islamic banking of West Sumat e ra based on the economic fiqh perspective such the calculation of the margin murabaha h based on the amount of banks financing. Then the calculation of ujrah on the bailout pilgrimage was still based on the amount of bail. Furthermore, the calculation of ujrah on pawn ing gold wa s not based on the calculation of the treatment period but to the amount of “debt” funds. The conclusion was the implementation of the “ debts ” contract in Islamic banking of West Sumat e ra not run well as the economic fiqh perspective. Kata kunci : akad “utang piutang”, perpektif fikih ekonomi, perbankan syariah, Sumatera Barat

The Impact of Neighborhood Status on Imprisonment for Firearm Offenses

Burgeoning research on criminal case processing has revealed persistent effects of the race and ethnicity of defendants on case outcomes up to and including imprisonment. But prior studies have devoted relatively little attention to how the characteristics of the communities in which crimes are committed affect imprisonment and antecedent legal outcomes such as bail amount and pretrial detention. Guided by the group threat and focal concerns perspectives, the current study examines the impact of community racial and socioeconomic composition on the likelihood that African American male defendants are sentenced to prison rather than probation for firearm offenses in a large Midwestern city. We find that defendants arrested in neighborhoods with higher proportions of non-poor residents received higher bail and, in turn, spent more time in jail and were more likely to be sentenced to prison than those arrested in lower status neighborhoods. We find no significant effect of neighborhood racial composition on bail, pretrial confinement, or imprisonment. We recommend that the community context of crime receive high priority in future research on the impact of extralegal factors on imprisonment.

The Downstream Consequences of Misdemeanor Pretrial Detention

In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the causal effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.

From Bail to Jail: The Effect of Jail Capacity on Bail Decisions

One of the more important decisions made by judges in the criminal justice system is the bail decision. Factors that judges take into consideration when making a bail decision, such as seriousness of the offense, flight risk, and public safety, are typically seen by researchers as the primary determinants of such a decision. However, one aspect that researchers have not studied extensively—rated jail capacity – could play an important role in a judge’s decision. Overcrowding in jails leads to numerous problems, both for the offender and the system itself, so judges may be more willing to release offenders into the community during the pretrial period if the local jails are overcrowded. The current study examines the effect of rated jail capacity on decisions regarding bail amounts, release on recognizance (ROR), financial release, and conditional release in eight Florida counties. Results indicate that rated jail capacity plays a role in judges’ bail decisions, suggesting that judges are concerned about housing more pretrial offenders in crowded jails.

Is the Impact of Cumulative Disadvantage on Sentencing Greater for Black Defendants?

Research Summary We examined race-group differences in the effects of how felony defendants are treated at earlier decision points in case processing on case outcomes. Multilevel analyses of 3,459 defendants nested within 123 prosecutors and 34 judges in a large, northern U.S. jurisdiction revealed significant main and interaction effects of a defendant's race on bond amounts, pretrial detention, and nonsuspended prison sentences, but no significant effects on charge reductions and prison sentence length. Evidence of greater “cumulative disadvantages” for Black defendants in general and young Black men in particular was revealed by significant indirect race effects on the odds of pretrial detention via type of attorney, prior imprisonment, and bond amounts, as well as by indirect race effects on prison sentences via pretrial detention and prior imprisonment. Policy Implications The consideration of cumulative disadvantage is important for a more complete understanding of the overincarceration of Blacks in the United States. Toward the end of reducing racial disparities in the distribution of prison sentences, courts might (a) reduce reliance on money bail, (b) consider bail amounts for indigent defendants more carefully, and (c) increase the structure of pretrial decision making to reduce the stronger effects of imprisonment history and type of attorney on the odds of pretrial detention for Black suspects.

Causally Valid Relationships That Invoke the Wrong Causal Agent: Construct Validity of the Cause in Policy Research

Internal validity relates to whether the relationship between two variables is causal. Various identification devices are used to infer the validity of this relationship, such as random assignment or regression discontinuity. However, these devices are irrelevant to validly identifying the name, label, or word that should be attached to the cause or to the effect. Yet, a valid causal relationship has little practical value for theory development or practical action unless the cause and effect are correctly labeled. This paper addresses the theory and practice of correctly labeling interventions. We examine the case study of a reform that was universally labeled as video contact with a judge during bail bond hearings. This reform replaced the practice of face-to-face contact between the judge and person charged. A daily comparative interrupted time series with 530 judges over 17 years shows that various indicators of managerial performance improved after the reform but that bail amounts unexpectedly increased. After almost 9 years, the reform was abandoned. In part, this was because the higher bail amounts were thought to result from the video method used to hear cases and not because of the case details themselves, thus compromising fair treatment under the law. A small subset of judges was chosen to implement the new video system, and analysis of the time-varying composition of judges shows that the selected judges set exceptionally high bail amounts even before the reform and also exercised a virtual monopoly of cases immediately after the reform. Since no increase in bail bond amounts was detected in longitudinal analyses of the judges hearing cases both before and after the new system was put in place, it seems that the higher bail amounts were due to time-varying changes in the kinds of judges implementing the new system and not the new system itself. If the valid increase in bail amounts had been correctly attributed to the judges rather than to the video, would the positive management gains of the new system have been foregone?

Domestic violence case processing: a matter of local legal culture

As one enters a courthouse, its culture is communicated to its listening visitors. The manner in which the security guards speak; the length of time victims are kept waiting; the amount of bail a defendant is assessed; communicate messages to those who are paying attention. Domestic violence cases have long suffered from lenient treatment and dismissals in our criminal courts. This paper examines a unique explanation for this problem: the court’s local legal culture. The elements of two courts’ local legal culture that most profoundly impacted their processing of domestic violence cases are examined. Over a six month period, 23 in depth interviews were conducted with court workgroup members in two courts, one with a specialized domestic violence session and one without. Court room observations were used to supplement these interviews. The results were insightful and telling about how a court’s culture can, at times, be more influential on case processing than the law itself.