The Impact of Race on the Pretrial Decision

This study examined the effect of race on the pretrial release decision for drug offenders. Although this decision point has not been examined as extensively as the final sentencing decision, it is a critical discretion point which impacts defendants’ future sentencing outcomes. The results found that race had a significant impact on judges’ decisions to release a defendant on recognizance, with black defendants less likely to receive this release status. Race was not significant, however, in the decision of bail amount or in the likelihood to post bail. These results are consistent with the focal concerns perspective which suggests that black defendants are viewed by courts as more dangerous and blameworthy and thereby, less likely to be released on their own recognizance. On any given day in the United States, approximately 780,000 individuals are incarcerated in local jails, with a total of 13 million inmate admissions in the year 2007 (Bureau of Justice Statistics 2007). Many of these incarcerated men and women are being held pending court proceedings and without an actual conviction. Although they may eventually be found not guilty of their accused crimes, they still face the damaging effects of incarceration (e.g., disintegrated relationships and family ties, inability to obtain employment, and an increased likelihood of recidivism) (Pager 2003; Western 2002; Western et al. 2001; Western and McLanahan 2000). Despite the potentially destructive effects of pretrial incarceration, pretrial release decisions and outcomes have received less research than sentencing practices (Demuth and Steffensmeier 2004). This is especially noteworthy as researchers have suggested that racial differences have the most impact during the defendant’s primary encounters with the criminal justice system (Farnworth and Horan 1980; Leiber and Johnson 2008; Leiber and Stairs 1999; Spohn et al. 1987). Demuth (2003) points out several important reasons why more attention should be focused on pretrial release decisions. First, he argues that despite the intention of protecting the community, detention prior to trial is still a form of punishment that can negatively affect defendants (e.g., cause embarrassment, family disruption, and loss of employment). Secondly, the pretrial release decision allows for a greater deal of discretion than other decision points (Albonetti 1989), as judges often use information such as the defendant’s employment status, parenting status, and community reputation when making pretrial release decisions (Petee 1994; Walker 1993). Because of this increased discretion and a lack of public scrutiny focused on this decision, the potential of racial bias impacting this decision is increased (Demuth 2003). Furthermore, racial disparity at the pretrial stage can affect later stages of the process and lead to greater levels of sentencing disparity (Feeley 1979; Hagan and Bulmiller 1983). For example, previous research suggests that pretrial release status may have an impact on a defendant’s likelihood of incarceration, with those detained prior to trial having increased odds of incarceration (e.g., Bickle and Peterson 1991; Spohn and Holleran 2000). Racial disparity in the pretrial release decision, therefore, has the potential to create sentencing bias long after the initial pre-trial sentence determination. Despite the importance of the pretrial release decision, limited prior research is available that examines racial disparity. The research that has been conducted has produced mixed results. Additionally, several factors that are considered by judges during this decision (e.g., employment and marital status) have not been included in recent research. The current study, therefore, utilizes data collected from a midsized county in Pennsylvania to address these gaps in the literature and further our understanding of racial disparity in pretrial decisions. THEORETICAL PERSPECTIVE Developed by Steffensmeier and colleagues (Steffensmeier et al. 1993; Steffensmeier et al. 1998), the focal concerns perspective argues that judges consider the three focal concerns of blameworthiness, dangerousness, and practical constraints and consequences when making sentencing decisions (Steffensmeier et al. 1998). When considering the blameworthiness of the offender, judges consider characteristics such as the type of the offense, severity of the offense, and the defendant’s prior record. Factors such as employment status and extent of prior record are used to construct the protection of the community concern. Demuth (2003) suggests that protection of the community is a common goal of judges when making pretrial release decisions. Therefore, it is especially important that research consider the influence of the variables that construct this perception (e.g., marital status, employment, and education) when examining pretrial release. The third focal concern, practical constraints, considers such organizational issues as jail and prison space (Steffensmeier et al. 1998). Steffensmeier et al. (1998) also incorporated Albonetti’s (1991) theoretical idea that judges must often rely on stereotypical ideas to make decisions. Reliance on stereotypes causes extralegal factors such as gender, race and age to further influence decisions. The focal concerns perspective is commonly used to explain various decision points in the court system, including the pretrial release decision (Demuth 2003). The results of this study, therefore, are interpreted using this perspective.