Bail Research Articles

Commercialising disadvantage the neoliberal discourses of commercial bail bond websites

The commercial bail bond industry is one of the most profitable as-pects of America’s highly marketized criminal justice system that is increasinglyshaped by neoliberal structures and ideologies. Drawing on a specialised corpusof “Home” and “About Us” pages from bail bond websites, this paper is the firstempirical linguistic examination of commercial bail bonds discourse grounded inits legal context. Using corpus-assisted critical discourse analysis, we examinehow bail bond companies 1) discursively present and promote their services, 2)represent the legal system and its processes, and 3) construe arrest and detentionto prospective service users. The findings show that bail bond companies positiontheir services as an unobjectionably common (Brookes and Harvey 2017a) partof legal and financial self-management by normalising, legitimising, and idealis-ing their use whilst seeking to minimise the power-imbalance between themselvesand their often financially and socially disempowered ‘clients’. By grounding ourlinguistic analysis in a legal context, we demonstrate that these discourses simul-taneously serve whilst oppress those they purport to help, offering an example ofa local form of structural violence that subtly perpetuates neoliberal agendas anda two-tier justice system.

Law of Bail under CrPC

Law of Bail under CrPC

Do the Heavens fall? Law of Bail and Economic Crimes

Do the Heavens fall? Law of Bail and Economic Crimes

Probable Cause Reform as Bail Reform

Probable Cause Reform as Bail Reform

Supplemental Material for Proxy Assessments and Early Pretrial Release: Effects on Criminal Case and Recidivism Outcomes

Supplemental Material for Proxy Assessments and Early Pretrial Release: Effects on Criminal Case and Recidivism Outcomes

Mandatory detention for criminal convictions: The reproduction of racial inequality throughU.S.immigration law

AbstractSince the late 1980s, immigrants convicted of certain criminal offenses have been subject to mandatory detention during their deportation proceedings. Due to court backlog and complicated cases, noncitizens mandatorily detained in this way can be held for years at a time, without any legal right to a bail hearing. While political rhetoric and policy aims of the past three decades have painted so‐called “criminal aliens” as a highly dangerous group from whom the American public needs protecting, the criminal convictions that invoke mandatory detention and likely deportation are actually quite diverse, in large part due to the expansion of the “aggravated felony” ground of deportation to include a wide variety of less serious crimes. Drawing from 40 interviews with lawyers and other legal actors in New York City's detained immigration court from 2017 to 2018, this article explores the effects of aggravated felony–based mandatory detention. I argue that in doubly punishing immigrants who have already served time for criminal convictions, the immigration system funnels criminalized noncitizens—particularly those from poor Black and Latinx communities—toward deportation, perpetuating inequality and upholding existing racial hierarchies.

From Bail Bonds to Foreclosures: The Financial Consequences of Pretrial Detention

From Bail Bonds to Foreclosures: The Financial Consequences of Pretrial Detention

Risk of Revocation: Assessing Correlates of Failure in a Pretrial Services Program

Personal recognizance (PR) bonds, often an option in pretrial services programs, allow defendants to be released while awaiting trial without financial backing. This offers some relief for jail overcrowding and permits the defendant the ability to maintain responsibilities of daily life. Not everyone released, however, successfully participates in these programs. This study seeks to analyze correlates and predictors of various types of non-compliance that could result in pretrial release forfeiture, operationalized by failure to appear in court and incurring new charges while on PR bond. This dependent variable is analyzed with several predictor variables that are excluded from traditional risk assessment tools and criminal history to determine the offenders most at risk for failure on pretrial release through a PR bond. Findings suggest the presence of several protective factors for program failure that are not typically considered when making release decisions such as having a passport and being the primary caregiver of children. The implications of these effects as well as variables that were collected but unable to be included in the present study are discussed.

Police officers' knowledge, understanding and implementation of the Good Samaritan Drug Overdose Act in BC, Canada.

In May 2017, the Good Samaritan Drug Overdose Act (GSDOA) was enacted in Canada - amending the Controlled Drugs and Substances Act. For people present at an overdose, the GSDOA offers legal protection from simple drug possession as well as breach of charges related to simple possession including probation, pre-trial release, conditional sentences, and parole. It is unclear if the GSDOA has been fully implemented by police officers. We conducted 22 key informant interviews with police officers across British Columbia, Canada. Convenience sampling was initially employed, followed by purposeful sampling to ensure diversity in jurisdictions and participant demographics (e.g. age, sex, policing experience). A thematic analysis was conducted RESULTS: Our findings show that awareness and knowledge of the GSDOA vary among police officers. Many officers reported being unaware of the GSDOA or could not correctly define for whom and when the GSDOA applies. Information about the GSDOA was largely disseminated via email. Many officers expressed concerns with this dissemination method given the potential that key legal information would be overlooked. Police officers reported that not arresting for simple possession at an overdose was common practice, even before the enactment of the GSDOA. Thus, some officers did not believe that the GSDOA considerably changed police practices. Finally, police officers reported that they exercised discretion applying the GSDOA. Police officer interpretation of the intention and content of the GSDOA had critical implications for how they applied it in practice. Effective education for law enforcement, including the dissemination of information beyond email, is needed to improve officers' awareness and understanding of the GSDOA. Given officers' use of discretion when applying the GSDOA, greater legal reforms, such as de jure decriminalization, may be required to fully protect persons at an overdose from simple possession for controlled substances.

Termination of Dollateralized Obligations as an Illegal Action in Case of Bankruptcy: Problems of Criminal Law Assessment

There is a general rule according to which if the claims of some creditors on the debtor’s property are knowingly satisfied to the detriment of other creditors, it constitutes an illegal action in case of bankruptcy provided that such an action inflicted major damage. In its turn, the size of the inflicted damage coincides with the size of satisfied claims minus the share that would have been due to the creditors who satisfied their claims this way if the insolvency estate has been distributed according to the insolvency law. At the same time, the corresponding crime may be committed not only through the due performance of an obligation, but also through the termination of bail bonds on other grounds. When the authors analyze illegal actions in cases of bankruptcy committed through the provision of release property, they conclude that if the market value of the release property exceeds the size of terminated obligations by the sum equaling major damage, the actions should be classified as multiple offences under Parts 1, 2, Art. 195 of the Criminal Code of the Russian Federation. As for the order of determining the size of damage when satisfying claims secured by the debtor’s property, the authors pay attention to the privileged status of the pledge holder: a part of proceeds from the sale of pledged property must be used to satisfy their claims on the principal plus interest. Thus, for the corresponding part of the value of the object of pledge, no damage is inflicted on other creditors in connection with satisfying the claims of the pledgee. In some circumstances, the claims of the pledge holder are satisfied by a part of the proceeds from the sale of the object of pledge designated for the satisfaction of other claims, which cannot be overlooked when determining the size of the inflicted damage. The exceptions are the cases when, as a result of satisfying the claims of the pledgee, their claims on compensating damages and (or) paying financial sanctions were also satisfied. The satisfaction of the abovementioned claims in the size equaling major damage constitutes a crime under Part 2, Art. 195 of the Criminal Code of the Russian Federation. At the same time, if the difference between the size of pledge requirements terminated by the provision of release property, and the value of the transferred assets equals major damage, the actions must be classified as multiple offences under Parts 1, 2, Art. 195 of the Criminal Code of the Russian Federation.

The Empirical Case for Pretrial Risk Assessment Instruments

Pretrial risk assessment instruments are used in many jurisdictions to inform decisions regarding pretrial release and conditions. Many are concerned that the use of pretrial risk assessment instruments may be contributing to worsened, not improved, pretrial outcomes, including increased rates of pretrial detention and exacerbated racial disparities in pretrial decisions. These concerns have led prominent organizations to reverse their position on the role of pretrial risk assessment instruments in pretrial system change. Reforms that centered on their use have been rolled back or have failed to be implemented in the first place. However, the scientific evidence behind these concerns is lacking. Instead, the findings of rigorous research show that the results of pretrial risk assessment instruments demonstrate good accuracy in predicting new criminal activity, including violent crime, during the pretrial period, even when there are differences between groups defined by race and ethnicity. Furthermore, the scientific evidence suggests they can be an effective strategy to help achieve pretrial system change, including reducing pretrial detention for people of color and white people, alike, when their results are actually used to inform decision-making. In this article, we review the scientific evidence in relation to three primary critiques of pretrial risk assessment instruments, namely, that their results have poor accuracy and are racially biased and that their use increases pretrial detention rates. We also provide recommendations for addressing these critiques to ensure that their use supports, rather than detracts from, the goals of pretrial reform and articulates an agenda for future research.

Reducing Pretrial Detention: A Randomized Intervention with Public Defenders in El Salvador

Approximately one third of the global prison population is in pretrial detention, waiting for trial. Overreliance on pretrial detention exposes defendants to harsh conditions, exacerbates jail overcrowding, increases recidivism, and favors criminal governance. What policies can resource-strapped countries implement to effectively address excessive pretrial detention? Based on a theoretical model focused on institutional-level efforts, we evaluate an experimental intervention implemented in El Salvador intended to increase pretrial release requests and reduce pre-trial detention. The intervention randomly assigned public defenders to receive specialized legal training, an improved interview protocol, material resources, and increased communication channels. We find that this inexpensive, scalable program increased pretrial release requests from public defenders by nearly 10% (0.228 standard deviations) and increased the success in securing pretrial release by 4.4% (0.114 standard deviations). Heterogeneous treatment effect analyses suggest that the program increased strategic litigation among the most experienced public defenders and has distinct effects for those accused of minor and severe crimes. We find no evidence that the mechanism explaining our results involves changes in public defenders’ attitudes or perceptions about their work environments. Criminal justice programs focusing on pretrial detention may help reduce prison overcrowding in high crime countries.

Justice by Algorithm: Are Artificial Intelligence Risk Assessment Tools Biased Against Minorities?

This is a review of Katherine B. Forrest’s new book When Machines Can Be Judge, Jury, and Executioner. The book does an excellent job discussing issues of fairness and racial disparities from the use of artificial intelligence risk assessment tools (hereinafter “AI”) for decisions such as pretrial release and likelihood of recidivism. This is a timely topic as the technology is currently a tipping point. While Europe has begun to implement protections for defendants regarding AI, the U.S. is increasing its reliance on AI without such safeguards. This review includes a discussion on the topics of how AI compares to human judge predictions and decisions, fairness and racial outcomes, how recidivism is frequently misunderstood and its relevance, how human decisions are inextricably intertwined with AI, and the proper understanding of an AI’s “error rate.”

Review of the Release Conditions under the U.S. Bail Reform Act during the COVID-19 Pandemic

2020년 1월 미국에서 처음 코로나 19 확진자 발생 후 다른 어떠한 곳보다도 대량으로 집단 감염이 발생한 곳은 교도소와 구치소로서 코로나 19의 집단수용시설에서의 위험이 입증되었다. 미국의 보석 개혁법은 증거우위의 증명(preponderance of evidence) 또는 명백하고 확실한 증명(clear and convincing evidence)이 가능한 경우, 법원은 구금을 명할 수 있다고 규정하고 있다. 하지만 미국 판사들은 코로나 19 발생으로 인한 요소를 석방 요건으로 추가해야 한다고 주장한다. 이에 코로나 19 상황에서도 수감자를 구금해야 한다는 의견과 석방해야 한다는 도덕적, 실제적, 법적 의견으로 나누어진다. 교정당국과 검사들은 구금자들을 석방했을 때 또 다른 추가 범죄로 인한 지역 사회에 끼칠 수 있는 가능성과 피고인 석방 시 추가적인 부담이 필요하다는 것 등을 근거로 수감자를 구금해야 한다고 주장한다. 반면 국제 인권 및 국제기구들의 성명을 통해 건강권은 제한할 수 없으며, 사회적으로 취약한 사람들을 더욱 보호해야 하는 것이 국가의 의무라는 도덕적 이유와 교도소 내에서 물리적 거리두기를 시행해야 하며, 구금자들을 보호하는 것 뿐 만 아니라 교도소 내의 일반인들도 보호해야 한다는 선언을 하였다. 이러한 석방 정책은 교정 시설의 특수성 등을 고려하여 일반적으로 수립하는 것은 지양해야 하며, 주 또는 연방 정부 차원에서 석방 정책의 개발을 위해 독립적인 위원회를 구성할 필요가 있다.Under the U.S. Bail Reform Act, a judicial officer in the United States may order the release or detention of a pre-trial detainees pending trial, depending on whether the government, in moving for detention at a detention hearing, has established either (1) that no condition or set of conditions of release will reasonably assure the appearance of the defendant in court as required; or (2) that no condition or set of conditions of release will reasonably assure the safety of any other person and the community. Under Section 3142 (g) and (i) of the Act, american courts must determine whether release has become necessary, considering the factors such as personal risk of death or suffering based on underlying conditions, personal risk of harm based on living in a jail environment, risk of harm to jail staff and the surrounding community, risk posed by the virus constitutes a “compelling reason”, and necessary for preparation of a person’s defense. Further, during the pandemic era of COVID-19, priority of the release should be given to incarcerated people who meet some combination of specific criteria. These potential criteria are risk of recidivism for a violent offense, presumption of innocence for the accused, risk of mortality from coronavirus, proportion of sentence served, and custodial responsibilities to third parties.

A Fairer, Safer, and More Just System for All New Yorkers: Domestic Violence and New York Bail Reform


 
 
 On January 1, 2020, bail reform laws went into effect in New York that eliminated cash bail for thousands of defendants across the state. In step with other reforming jurisdictions across the country, New York aimed to ensure that a defendant’s freedom before trial would not be determined by the individual’s ability to pay. Unlike other reforming jurisdictions, however, New York’s bail laws do not include public safety as a legitimate factor for judges to consider when setting release conditions. Some domestic violence advocates have expressed concern for victims’ safety during the pretrial period in domestic violence cases. This Note explores the potential impact of New York’s bail reform laws on domestic violence cases and whether any mitigating measures may be implemented to promote victims’ safety.
 
 

The Effects of Judge Race and Sex on Pretrial Detention Decisions

The pretrial detention decision has critical implications for a defendant’s employment opportunities, family ties, likelihood of conviction, and length of prison sentence. While prior researchers have assessed the disparities that exist in the bail decision based on defendant and case characteristics, little systematic empirical attention has been paid to the effects of the pretrial detention judge on decisions at this stage of criminal case proceedings. Here, we focus specifically on judge race and sex, exploring not only the unconditional effects of judge sex and race but also whether the effects of these judge characteristics at the bail decision are conditioned on the sex and race of the defendant. Using newly collected pretrial detention data from 22 federal district courts from 2003 to 2013, we empirically examine the effects of judge and defendant race and sex on whether defendants are released on their own recognizance before trial or, instead, are given a more punitive pretrial outcome. Our results indicate important judge and defendant-based differences in bail setting leniency provided to defendants including that Black judges are more likely to grant pretrial release without hefty conditions to white defendants than are white judges. We also find that female judges are more likely to detain or require monetary bail for male defendants and less likely to do so for female defendants relative to male judges.

Healthy Communities: Shifting Toward Inclusive Immigration Policy.

In this issue of Pediatrics , Cholera et a1 used a controlled interrupted time series design to examine differences in health care use of Latinx children as it relates to federal immigration policy enacted in 2017. Electronic medical record data from four major health care systems in North Carolina were analyzed before and after restrictive immigration policy was enacted after the 2016 election. Among Latinx children in the outpatient setting, they found a sustained increase in visit cancellation for the uninsured subgroup, a proxy for undocumented immigrant children in North Carolina.1 One aim of the study was to explore whether restrictive immigration policy resulted in a “chilling effect” for all Latino children. A chilling effect is defined as a deterring effect on the behavior of an individual or group through fear of legal action.2 Widely used during the 1996 welfare reform, today, like then, it refers to immigrant families’ decision not to participate in the use of public benefits and services out of fear, confusion, or perceived threat. This phenomenon is of particular concern for the public charge rule changes that were enacted in 2019 (but leaked to the public … Address correspondence to J. Raul Gutierrez, MD, Children’s Health Center, Zuckerberg San Francisco General Hospital and Trauma Center, 1001 Potrero Ave, Floor 06, Room 6E07, San Francisco, CA 94110. E-mail: juan.gutierrez{at}ucsf.edu

The Impact of Pretrial Release Programming on Rearrest: Results from an Eastern Pennsylvania County Sample

ABSTRACT Pretrial release programs are relatively common and service a broad range of offenders. Despite their widespread use, there is little research examining the impacts of pretrial release programming on offender recidivism after pretrial. This study analyzed data from 286 individuals who participated in an Eastern Pennsylvania county’s adult probation and parole pretrial supervision program between 2014 and 2016. Relevant predictors of pretrial failure as well as predicting arrest 36 months after the pretrial program were examined. Results suggested that criminal history and education level are the main predictors of pretrial failure. Those with more education and with no criminal history are less likely to fail supervised pretrial release. Unexpectedly, those with higher education were more likely to be arrested 36 months after pretrial. Younger individuals were slightly more likely to be arrested, and those who failed to complete the pretrial program were 2.5 times more likely to be arrested after pretrial. Overall, these findings provide support for the potential role of pretrial release programming in reducing recidivism beyond the pretrial phase. Limitations and suggestions for future research are discussed.

Models of Bail Reform

Bail reform is an urgent topic in the United States and internationally, but what consists in reform, and how to accomplish reform goals remains contested. Jails are a modern epicenter of mass incarceration, with a stunning growth in American jail populations over the past four decades, despite declines in arrests and crime. Prior waves of bail reform gave us a system that still largely relied upon setting secured bonds, with up-front payments required, to determine who remains in jail while pending a criminal trial. Today, pre-trial policies and practices are contested and in flux. Recent bail reform legislation has inconsistently called for both local discretion and state-imposed rules, and restrictions on conditioning release on cash bail but also restrictions on release without cash bail. This Article seeks to shed light on key distinctions in bail reform approaches, by focusing on four models: (1) the procedural due process approach; (2) the risk assessment approach; (3) the categorical approach; (4) the community services approach; (5) an equal protection model; and (6) the use of alternatives to arrest. Each reflects a different normative agenda, targets different legal actors, and raises different constitutional and legal questions. Two of these models, the equal protection and arrest alternatives models have not been widely adopted and are not often included as part of bail reform conversations. This Article recommends a composite model that adopts elements of each model, using a separation-of-powers approach to target pretrial actors whose discretion can otherwise undermine each other’s compliance. This Article concludes by discussing a comprehensive vision for bail reform outside the criminal legal system.

An Empirical Evaluation of the Impact of New York's Bail Reform on Crime Using Synthetic Controls

We conduct an empirical evaluation of the impact of New York's bail reform on crime. New York State's Bail Elimination Act went into effect on January 1, 2020, eliminating money bail and pretrial detention for nearly all misdemeanor and nonviolent felony defendants. Our analysis of effects on aggregate crime rates after the reform informs the understanding of bail reform and general deterrence. We conduct a synthetic control analysis for a comparative case study of impact of bail reform. We focus on synthetic control analysis of post-intervention changes in crime for assault, theft, burglary, robbery, and drug crimes, constructing a dataset from publicly reported crime data of 27 large municipalities. Our findings, including placebo checks and other robustness checks, show that for assault, theft, and drug crimes, there is no significant impact of bail reform on crime; for burglary and robbery, we similarly have null findings but the synthetic control is also more variable so these are deemed less conclusive.