ASSESSING DANGEROUSNESS AMIDST RACIAL STEREOTYPES: AN ANALYSIS OF THE ROLE OF RACIAL BIAS IN BOND DECISIONS AND IDEAS FOR REFORM.

• Author: Assefa, Lydette S.
• Position: Special Issue on Bail and Pretrial Detention

TABLE OF CONTENTS INTRODUCTION 654 I. THE PURPOSES, PRACTICES, AND IMPLICATIONS OF BOND 659 A. Background of the Bond System 659 B. Recent Changes to Bond in Cook County 665 C. The Consequences of Pretrial Detention 667 D. Racial Bias in Bond Decisions 671 II. IDEAS FOR REFORM 672 CONCLUSION 677 INTRODUCTION

In the past couple of decades, the United States has imprisoned more people, both in real numbers and as a percentage of the total population, than any other country. (1) As of 2008, the U.S. has 2.3 million people, (2) nearly 1 % of the U.S. adult population, behind bars. (3) Despite the 50% decrease in national crime rates since the 1990s, the rate of incarceration has grown at approximately 3% each year from the early 1990s through the early 2000s, (4) though in recent years the incarceration rate nationally has shown early signs of slowing down. (5) These persistently high incarceration rates strain correctional facilities and stretch state budgets to accommodate the enlarging population. (6) In a 2012 nationwide study of county jails, 15% of responding jails reported that confined jail populations were at or above the facility's capacity at the beginning of the year, and over 40% of the jails were operating at over 80% capacity. (7)

The impact of mass incarceration on prison and jail facilities is exceptionally evident in Illinois and Cook County, in particular. (8) Situated on ninety-six acres of Chicago's southwest side, the Cook County Jail is one of the largest, single-site jail facilities in the country and as recently as 2012 has routinely operated at approximately 90% capacity at all times. (9) The issue of severe overcrowding and its attendant impact on jail conditions for inmates and the strain on county resources has been documented as early as the 1920s (10) and has been the subject of decades of litigation in federal courts. (11) In Cook County, the jail population rose considerably from around 8,700 in early 2011 to more than 10,000 at its peak in August 2013. (12) In addition to the human costs of mass incarceration on the social and economic welfare of the community, the costs to operate crowded jails and prisons are exorbitant. As of 2017, the estimated cost to taxpayers to operate the Cook County Jail was $550 million annually, an average of more than $61,000 a year per detainee. (13) Greater attention to a defendant's access to release from jail and prison can alleviate the ballooning burdens of the carceral state.

The rate at which defendants are eligible for pretrial release contributes to this rise in incarceration. The bond process represents the beginning of a defendant's contact with the criminal court system and pretrial detainees make up nearly two-thirds of the total defendants confined in jails nationwide. (14) As overall incarceration rates increased, the share of confined pretrial detainees in jails also rose from 56% of the total jail population in 2000 to 63% of the total jail population in 2014. (15) Bond determinations involve assessments of a defendant's risk pretrial when the defendant is presumed innocent. (16) Unlike a judge's sentencing decision in the aftermath of a guilty verdict, bond decisions are unique moments in the criminal system in which there is a presumption towards release, sometimes explicitly written in the state statute. (17) The bond process provides a special opportunity to alleviate the problems with overcrowding and mass incarceration by reexamining the decision makers' assessments of the defendant's risks and their decisions about release versus detention.

A detailed examination of bond decisions across the country is important not only to address the burdens of mass incarceration, but to address the way that bond decisions fuel racial disparities already evident in other areas of the criminal legal system. Racial inequalities exist at every phase of the U.S. criminal legal system. (18) Compared to similarly situated white defendants, black defendants are more likely to be searched for contraband, (19) more likely to experience police force, (20) more likely to be charged with a serious offense, (21) more likely to be convicted of serious crimes, (22) more likely to be incarcerated, (23) more likely to receive longer sentences, (24) and more likely to be sentenced to death. (25) Black male defendants, in particular, are more likely to receive upward departures from the sentencing guidelines and less likely to receive downward departures than any other group. (26)

As this Article will later demonstrate, these racial disparities exist in equal force in the bond system. (27) Moreover, the nature of the bond process itself is particularly susceptible to racial bias because the type of assessments made of a defendant's dangerousness implicate established stereotypes of blackness and criminality. (28) In bond decisions, judges must quickly consider the risk a defendant poses to the safety of persons in the community if released and the likelihood that the defendant will appear for future court dates. (29) Constrained by an avalanche of cases, (30) judges make rapid, but complex, predictive decisions about a defendant's threat to the community and his or her reliability to return to court based on very limited information using amorphous criteria. (31) In many jurisdictions, judges have no training to make accurate predictions and have wide discretion in their decision-making with little accountability. (32) The considerable time pressures, limited information available to judges, lack of training or oversight, and the nuanced analysis required present potent ingredients for racial bias, specifically implicit bias. (33)

Research in cognitive psychology demonstrates that implicit biases are hidden attitudes and stereotypes that are "not consciously accessible through introspection" and can therefore impact a person's behavior and decision-making without the person's awareness. (34) Implicit bias often occurs when people are asked to resolve a complex issue with limited time and must resort to stereotypes, mental shortcuts, or other rules of thumb to quickly solve the issue. (35) This cognitive process that relies on mental shortcuts or existing schemas is rapid, intuitive, automatic, and error-prone. (36) Researchers have long demonstrated the persistent stereotypes of black people as criminal or threatening, as well as the association of black men, in particular, with danger and criminality. (37) Violent crimes, but not nonviolent crimes, are associated more frequently with black people than white people. (38) In the bond context, where judges make on-the-spot decisions about a defendant's dangerousness with little to no interaction with the defendant and minimal accountability, judges subconsciously resort to established stereotypes and existing schemas of black people as dangerous. (39) This subconscious process may contribute to more restrictive bond conditions for black defendants.

This Article will analyze bond practices around the country, with a particular focus on Cook County, in order to identify specific reform ideas to lessen the burdens of mass incarceration and decrease the racial disparities present in bond decisions. Part I will outline the general background, purpose, and practices of bond nationally and within Cook County. This section will further discuss the importance and relevance of pretrial detention within the criminal legal system and explore the impact of race on bond decisions. Finally, Part II will identify solutions for reforming bond by revisiting how judges assess a defendant's risk and addressing the conditions that contribute to implicit bias in bond decisions.

1. THE PURPOSES, PRACTICES, AND IMPLICATIONS OF BOND

   1. BACKGROUND OF THE BOND SYSTEM

      The bond court judge establishes the conditions of a defendant's pretrial release by setting bail. (40) The judge determines the type of bail to issue by assessing the potential risks that arise from the release of that particular defendant. (41) The three primary objectives of bail are to release all but the most dangerous criminal defendants before trial, ensure that defendants appear at all required court proceedings, and protect the public by preventing future crime. (42) This emphasis on promoting safety and ensuring future appearances highlights that the judge's inquiry of the defendant's eligibility for release is forward-focused, reflecting the judge's assessment of the defendant's potential future actions not a judgment on the defendant's guilt or past conduct. This prospective inquiry requires a multifaceted analysis that, without proper direction and oversight, provides fertile ground for implicit bias.

      Courts have commonly recognized a general presumption towards release in the absence of contrary findings of the defendant's risk. (43) The federal bail statute requires judges to determine the "least restrictive further condition'' to reasonably assure the appearance of the defendant and the safety of the community. (44) When upholding the constitutionality of the bail statute, the U.S. Supreme Court recognized "the fundamental nature" of the defendant's strong interest in liberty. (45) This interest ensures that, consistent with the Eighth Amendment, "[e]xcessive bail shall not be required," and therefore, a detainee may not be "capriciously held" without an "informed reason for the detention." (46) In the seminal case on the rights of indigent defendants, the Supreme Court concluded that discrimination based on a defendant's poverty is unconstitutional. (47) Therefore, a defendant's access to bail, and subsequent pretrial release, cannot be conditioned on the amount of money the defendant has to post.

      The general presumption towards release is also reflected in the Illinois bail statute. (48) Like the federal bail statute, the Illinois statute directs judges to impose conditions on the defendant's release if the additional conditions are reasonably...