THE DOWNSTREAM EFFECTS OF BAIL AND PRETRIAL DETENTION ON RACIAL DISPARITIES IN INCARCERATION.

• Author: Donnelly, Ellen A.
• Position: Special Issue on Bail and Pretrial Detention

TABLE OF CONTENTS INTRODUCTION 777 I. RACIAL DISPARITIES IN CRIMINAL PROCESSING AND PRIOR EMPIRICAL LITERATURE 781 A. Racial Disparity in Incarceration Sentencing 781 B. Cumulative Disadvantage: An Alternative Approach to Understanding Racial Disparity 786 C. Bail and Pretrial Detention as Contributors to Cumulative Disadvantage 788 II. RESEARCH CONTEXT: RACE AND JUSTICE IN THE DELAWARE CRIMINAL JUSTICE SYSTEM 792 III. ANALYTIC STRATEGY 795 IV. DATA 798 A. Outcomes 799 B. Demographics 799 C. Pretrial Detention and Bail Information 799 D. Legal and Contextual Characteristics 800 E. Criminal History 800 V. RESULTS 800 A. Regression Findings of Race Effects on Criminal Processing Outcomes 804 B. Decomposition of Racial Disparities in Criminal Processing 805 C. Limitations 810 CONCLUSION 810 INTRODUCTION

Race is one of the most glaring, yet complicated forms of disparity in the U.S. criminal justice system. Blacks and Latinos make up the majority (57%) of prisoners incarcerated in U.S. federal and state prisons. (1) Overrepresentation is especially serious for Blacks, who represented under 15% of the U.S. population but 35% of the nation's nearly 1.5 million state and federal prisoners in 2015. (2) At peak incarceration levels in 2009, about one in eleven Black citizens was under correctional supervision on any given day. (3) Incarceration has serious effects on the lives of offenders, changing one's eligibility for public services, access to housing, rights to vote and serve on juries, and ability to obtain employment. (4) The severity of racial disparities in incarceration necessitates a clearer understanding of its origins and areas for reform.

A priority in the scholarship on incarceration is to determine the size and sources of racial disparities as criminal cases move through various stages of the judicial process. (5) Racial disparity studies most often focus on the imposition of incarceration sentences (6) and whether differences in the average incarceration sentence length remain after one statistically controls for current case conditions, criminal history, and other contextual differences like age and gender. (7) These studies may underestimate sentencing disparities between Blacks and Latinos relative to Whites if racial disparities occur at previous decision-making points. Blacks and Latinos may receive harsher sentences than Whites as a result of disadvantages that accumulate as their case progresses. (8)

Determinations of bail and detention before trial are crucial decisions that are made before final court dispositions. Shortly after a defendant's arrest, a magistrate, judge, or other judicial officer determines conditions of release from detention to ensure the defendant's appearance in court and reduce the risk to public safety. (9) Provided that release is an option, magistrates set bail in terms of type and amount. (10) The bail set from this initial appearance can affect a defendant's likelihood of pretrial detention, as higher bail amounts may prevent defendants from posting bond and being released." In turn, detention before trial and the "stress of confinement" can change a defendant's ability to prepare for a case or her willingness to go to trial. (12) A growing body of research has underscored how the inability to make bail and the experience of pretrial detention produces more guilty pleas, higher rates of conviction, and harsher sentences. (13) By extension, racial differences in bail decision-making and pretrial detention may then impact the racial composition of incarcerated populations. (14)

This study examines the effects of bail and pretrial detention on Black-White disparities in incarceration in Delaware. We rely on original criminal processing data for arrests that occurred between 2012 and 2014. Our study first identifies the size of Black-White disparities at multiple criminal processing decision-points that begin at arrest and end with sentencing. Second, the study distinguishes the case and defendant factors that are associated with Black-White disparities in case outcomes. We take a special interest in determining the relative importance of bail and pretrial detention in explaining Black-White disparities in case outcomes. Addressing these two aims, the study provides a sense of direct and indirect effects of race on criminal court decisions.

We use conditional decomposition methods introduced by Jonah Gelbach, a University of Pennsylvania economist, to locate and understand Black-White disparities in criminal processing. (15) We define disparity as any difference in a criminal justice outcome between Blacks and Whites that can be caused by legal and extralegal factors. Legal factors include the seriousness of the charge, prior criminal record, and other aspects of a case that judicial officials can consider based upon statutory and constitutional law. Extralegal factors include race, ethnicity, age, gender, and other aspects of a defendant's background that have no legal basis for impacting criminal justice outcomes. For instance, race is not a legal factor in determining a sentence due to U.S. constitutional protections guaranteeing equal protection of the law. (16) Based on the omitted variable bias formula, the decomposition determines how the effect of race on criminal court dispositions changes when one takes into account legal factors and other extralegal factors of a case. (17) The decomposition also shows the relative contributions of each measured legal and extralegal factor, such as bail type (e.g. secured and cash-only bail), bail amount, and pretrial detention to the observed racial differences in court outcomes. (18) The approach allows us to make precise estimates of Black-White disparities in conviction and sentencing, as well as highlights the importance of the pretrial process in shaping racial disparities at later processing stages. Recognizing the roles of bail and pretrial detention in contributing to Black-White disparities in incarceration may offer some promise as an area of racial disparity reform in criminal justice.

We present two key findings from our decomposition analysis. First, Black-White disparities are not consistent across criminal processing stages. At adjudication, Blacks are 14% less likely than Whites to be convicted and 10% less likely to enter into guilty pleas. (19) There is no substantive unexplained Black-White disparity in incarceration sentencing, as Black and White defendants receive incarceration sentences at similar rates and comparable sentence lengths when all case factors have been considered. (20) Second, bail and pretrial detention absorb much of the criminal processing disparities between Blacks and Whites. Pretrial conditions contribute to 43.5% of explainable Black-White disparity in convictions and 37.2% of the disparity in guilty pleas. These processes explain nearly 30% of the Black-White disparity in the decision to sentence a defendant to any period of incarceration and under a quarter of the disparity in average incarceration sentence length. (21) When broken down into specific factors, pretrial detention is an important contributor to the Black-White disparity in conviction, but plays a lesser role in sentencing. Cash-only bail consistently explains 10-13% of Black-White disparities in criminal adjudications and incarceration sentencing. Bail amount explains a small share of the racial disparity in incarceration sentence length. (22) In all, pretrial decisions appear to be an important source of Black-White disparities in court processing and Blacks being overrepresented in the jail and prison population in Delaware.

This article proceeds in four parts. First, we provide an overview of prior empirical literature on racial disparities in incarceration and the downstream consequences of pretrial detention on case processing. Second, we address issues of racial disparities in Delaware and prior research in this setting. Third, we describe our analytic strategy and present results showing the contributions of bail, pretrial detention, and other factors in explaining average Black-White disparities at adjudication and sentencing. The article concludes with a discussion of potential implications for pretrial and sentencing reform that may help redress racial disparities injudicial processing and imprisonment.

1. RACIAL DISPARITIES IN CRIMINAL PROCESSING AND PRIOR EMPIRICAL LITERATURE

   1. RACIAL DISPARITY IN INCARCERATION SENTENCING

      Minority overrepresentation in incarceration has been a longstanding and prevalent problem throughout federal and state criminal justice systems. (23) Blacks have the highest rates of incarceration per population among all racial and ethnic groups. (24) Imprisonment rates are greatest for Black men between the ages of thirty and thirty-four. (25) Despite recent declines in the U.S. jail and prison population, the racial composition of incarceration population remains skewed. (26) Arrest patterns in terms of frequency and type of offending consistently fail to explain the disproportionate number of Blacks in U.S. correctional institutions. (27) In response, scholars have sought to understand why racial disparities in jail and prison occur by looking into the fairness of court procedures.

      The bulk of research on racial disparities in incarceration has concentrated on sentencing. (28) Typically studies examine sentencing by estimating racial disparities in the decision to sentence someone to any jail or prison (i.e. the in/out decision) and the average length of an incarceration sentence (i.e. the sentence length decision). (29) These outcomes work in tandem, as the racial composition of an incarcerated population depends on how many individuals are sentenced to prison and how long these individuals will serve a sentence. (30) Since the 1970s, scholars have examined whether racial disparities in incarceration rates can be explained by differences in criminal involvement or...