Today, and in the days and weeks to come, we’re going to continue to dissect the numbers as they relate to pretrial release and bail reform. Arguments made on both sides of this issue focus, quite naturally, on human emotion. Emotion is, after all, the quickest, easiest, and most effective way to sway opinion. But should such an important issue be argued in the courts of public opinion based only on raw emotion and vitriol? Clearly the Bureau of Justice Statistics (BJS) doesn’t believe so. A report released by BJS over 10 years ago is perhaps even more relevant now than the day it was published, and goes a long way in shedding light on what’s really happening when those accused of crimes are released before their trials.
Report Title: Pretrial Release of Felony Defendants in State Courts
Authors: Thomas H. Cohen, Ph.D., Brian A. Reaves, Ph.D. (BJS Statisticians)
How Many Defendants are Actually Released Pretrial?
As the graph shows, a majority of felony defendants in state courts in the 75 largest counties in the country were released prior to their trials. Specifically, 62% were released. Prior to 1998, a larger number were released without monetary conditions (without bail). This changed in 1998, when financial release exceeded non-financial release.
How Many Were Denied Bail?
Of the remaining 38% who were not released prior to their trials, 1 in 6 had been denied bail outright. As we’ll see, those denied bail tend to meet a certain profile related to the nature of their alleged crimes committed.
How Many Had Bail Set with Financial Conditions?
The remaining 5 in 6 had bail set with financial conditions and were either unable or unwilling to meet those conditions, i.e. – they either did not wish to pay bail or were unable to do so. 70% of those granted bail posted bail when it was set at $5,000 or less. When bail was set at $100,000 or higher, this number dropped significantly, to roughly 10%.
Who Was Most Likely to be Detained Without Bail?
Murder defendants. Others with low release rates, by alleged crime, include those charged with rape, robbery, burglary, and car theft. A big factor, it appears, in whether a defendant was released on bail was a prior arrest or conviction (along with those on probation or parole) – those with a prior arrest or conviction were more likely to be held without bail, and a history of missing court appearances also increased the likelihood of not being granted bail.
What Happens When Defendants are Out on Bail?
Unfortunately, about a third of released defendants were charged with what is termed by the authors of the paper as “pretrial misconduct.” Nearly 1 in 4 had bench warrants issued for failing to appear, while almost 1 in 6 were arrested again, for a new offense. More than half of those arrests were for felonies.
Who Was Least Likely to be Detained Without Bail or Offered a Low Bail Amount?
Those alleged to have committed non-violent offenses and those alleged to have committed assault. These were denied bail just 6% and 7% of the time, respectively. Bail was set above $50,000 just 7 % and 13%, respectively, for the same offenses.
Does Race Play Into Pretrial Release?
This is a very important question. Those in favor of bail reform often state, unequivocally, that the current money bail system results in the detention of a disproportionate number of minorities, especially African Americans. While this study only shows correlation, there is one very interesting point about race that was unearthed by the paper’s authors:
Those of Hispanic origin, rather than African Americans, are actually the least likely to be released prior to trial. This may have been influenced by the use of “immigration holds” to detain those illegally in the U.S.
Here is the breakdown of percentages of those released pretrial, by race:
White non-Hispanic: 68%
Black non-Hispanic: 62%
Other non-Hispanic: 65%
Hispanic, any race: 55%
We’ll continue to dissect this enlightening paper from the BJS in future posts, and begin to dig further into the question of whether bail is effective at ensuring that defendants show up for court appearances, how likely past convictions and failure to appear for court influences bail decisions, and the breakdown of “failures to appear” by race.