The Role of Private Legal Representation and the Implicit Effect of Defendants’ Demographic Characteristics in Setting Bail and Obtaining Pretrial Release

• Author: Gerald Wheeler,Rod V. Hissong
• Published date: 01 June 2019
• Date: 01 June 2019
• DOI: http://doi.org/10.1177/0887403417714560
• Subject Matter: Articles

https://doi.org/10.1177/0887403417714560

Criminal Justice Policy Review

2019, Vol. 30(5) 708 –730

© The Author(s) 2017

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DOI: 10.1177/0887403417714560

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Article

The Role of Private Legal

Representation and the

Implicit Effect of Defendants’

Demographic Characteristics

in Setting Bail and Obtaining

Pretrial Release

Rod V. Hissong1 and Gerald Wheeler2

Abstract

Misdemeanor bail schedules use the seriousness of the alleged crime and the

defendant’s criminal history. Court officials contend the schedules ensure that only

legal factors are considered for bail. Using longitudinal data from randomly selected

misdemeanor cases filed during the first quarter of 2012 in Harris County, Texas we

use ordinary least squares (OLS) to test the influence of demographic characteristics

of defendants and their ability to retain private representation on the process

of setting the monetary amount for bail. We find evidence of implicit bias and a

distinct advantage of private representation. Using logit analysis, we estimate how

demographic factors and monetary bail influence the probability of pretrial release,

and present point estimates of making bail by demographic type. Demographics

matter but retaining private counsel increases the probability of bail by sevenfold.

Policy recommendations include expanding the use of public defenders and allowing

them access to clients much earlier in the process.

Keywords

implicit bias, wealth-based bail, bail probability, pretrial release policy

1The University of Texas at Arlington, TX, USA

2Themis Research, Katy, TX, USA

Corresponding Author:

Rod V. Hissong, University of Texas at Arlington College of Architecture Planning and Public Affairs,

The University of Texas at Arlington, 610 West Nedderman, Arlington, TX 76019, USA.

Email: hissong@uta.edu

714560CJPXXX10.1177/0887403417714560Criminal Justice Policy ReviewHissong and Wheeler

research-article2017

Hissong and Wheeler 709

Introduction

The nexus between money and pretrial release in modern misdemeanor court systems

has its origins in medieval England. Crime was considered an act between private

individuals, and conviction usually meant the accused made financial payment to the

grieved. The English were as concerned then about the accused fleeing the community

as many are today, and as the medieval legal system developed, “a system was created

in which the defendant was required to find a surety who would provide a pledge to

guarantee both the appearance of the accused in court and payment . . . upon convic-

tion” (Schnacke, Jones, & Brooker, 2010, p. 3). Typically, the surety required the

accused to pay in advance the amount to be paid if convicted. In this manner if the

accused did flee, the surety would pay the grieved with proceeds received from the

now absent accused.

Pretrial release in modern court systems operates under the same basic principle but

is more complex. The amount paid for bail is no longer connected directly to the

expected financial penalty upon the finding of guilt. Today, bail not only remains a

financial incentive to appear at some future court date but can also be a hurdle for

defendants considered a risk to public safety. The monetary amount and the formal

arrangement of bail vary across arrestees. A relatively few defendants charged with

minor offenses, who are judged not to be a flight risk, and are deemed not a threat to

society are released with no financial payment. This is known as a personal bond or a

personal recognizance bond, and is simply the promise to appear on their respective

court date. Most first-time defendants who are charged with relatively minor offenses

and are judged not to be a threat to society are typically required to pay relatively low

amounts for pretrial release. Repeat offenders charged with the same minor offense

will face a higher monetary hurdle, and defendants with criminal histories who are

charged with serious offenses face even greater amounts for release.

Funds for bail generally come from three major sources: Defendants may use per-

sonal funds to post bail with cash. Using personal funds for bail guarantees a direct con-

nection between a financial loss and failure to appear. They may make arrangements

with friends and relatives who provide the funds for bail. The connection between finan-

cial loss and failure to appear is nearly as direct if the defendant borrows from friends

and relatives. Failure to appear could severely damage or even sever those relationships.

Third, the defendant may use personal funds or funds from friends and relatives to pay a

bail bond company. The connection between failure to appear and financial loss is weak-

est when the defendant uses a bail bond company. Many defendants, as in medieval

England, avail themselves to a surety bond company to secure release.

Bail bond companies typically require1 a nonrefundable payment of at least 10% of

the bond. Ayres and Waldfogel (1994, p. 990) argue that the nonrefundable payment is

a “sunk cost,” and this weakens the connection between what the defendant pays and

the incentive to appear in court. From the perspective of the defendant, appearing or

not appearing does not affect the nonrefundable character of the bond fee. Other incen-

tives to appear remain, of course, such as complicating the current legal charges and

incurring additional financial penalties for not appearing. The bond company has the