Racial Disparities Race and Pretrial Resources Additional Resources on Race and the Criminal Legal System
Racial disparities persist at virtually every decision-making juncture of the criminal legal system, and the pretrial process is no exception. Research demonstrates some of the ways in which racial disparities permeate decisions surrounding bail and pretrial detention:
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In large urban areas, Black defendants accused of felonies are 25% more likely than white defendants to be held pretrial (Prison Policy Initiative, 2019).
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A study on bail setting practices in Miami and Philadelphia found that Black defendants received bail amounts that were $9,923 greater than white defendants, even after controlling for observable differences between cases (Arnold, Dobbie and Yang, 2018).
The bail setting issues are magnified by the ongoing wage gap among various races and genders. As a result, even if bail amounts were the same for everyone, there is necessarily a disproportionate impact on minority defendants who tend to have lower wages. Consequently, fixed bail amounts, such as those found in bail schedules, may appear fair in that the amounts are applied uniformly, but can be regressive because they fail to assess what proportion of a defendant’s income would be consumed or overborn by that bail determination.
“The money bail system intrinsically harms those least able to afford it, whether by extracting scarce dollars or jailing those with insufficient dollars to pay. Black people, whether subject to implicit biases or by virtue of being economically disadvantaged, suffer the greatest harm.” – Vera Institute of Justice (2018)
Risk assessment tools have been touted by some as a way for system actors to make objective decisions in pretrial settings. Yet “the same bias that can impact a judge’s or prosecutor’s view of a client can also infiltrate the creation of an algorithm… and the appearance of objectivity in a scientific tool can make hidden bias even harder to combat” (Rick Jones, “The Siren Song of Objectivity,” The Champion, April 2018).
The impact of racial disparities in bail setting and pretrial release decisions can last far beyond the pretrial stage. Pretrial detention leads to higher conviction rates, longer sentences, and a host of collateral consequences including loss of employment, housing, and public benefits. At each stage of the criminal legal process, these disparities are compounded, contributing to a system in which Black and Latinx individuals are disproportionately incarcerated, denied parole, and kept on community supervision, with devastating consequences for their families and communities.
More on Race and Pretrial
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Incarceration Trends Tool: Pretrial Incarceration Rate, Vera Institute of Justice.
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Black Families are Disproportionately Impacted by Incarceration, Prison Policy Initiative, 2021 (graphic).
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Measuring Racial Discrimination in Bail Decisions, David Arnold, Will Dobbie and Peter Hull, Becker Friedman Institute for Economics, Univ. of Chicago, 2020.
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How race impacts who is detained pretrial, Prison Policy Initiative, 2019.
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From Bondage to Bail Bonds: Putting a Price on Freedom in New Orleans, Flozell Daniels Jr., Benjamin Weber, and Jon Wool, The Data Center, May 2018.
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The Downstream Effects of Bail and Pretrial Detention of Racial Disparities in Incarceration, Ellen A. Donnelly and John M. MacDonald, 108 J. Crim. L. & Criminology 775, 2018.
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Racial Bias in Bail Decisions, David Arnold, Will Dobbie, and Crystal S. Yang, The Quarterly Journal of Economics, Volume 144, Issue 4, November 2018, Pages 1885-1932.
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Unequal Treatment: Racial and Ethnic Disparities in Miami-Dade Criminal Justice, ACLU Florida, 2018.
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The Price of Freedom: Bail in the City of Los Angeles- A Million Dollar Hoods Report, UCLA, 2017.
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Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, Prison Policy Initiative, 2016.
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Racial, gender wage gaps persist in U.S. despite some progress, Eileen Patten, Pew Research Center, July 1, 2016.
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Bail in America: The Color of Pretrial Detention, Pretrial Justice Institute, 2016 (video).
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"Give Us Free": Addressing Racial Disparities in Bail Determinations, Cynthia E. Jones, Legislation and Public Policy 16:919, 2013.
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Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of. Parametric Model, Jonah B. Gelbach and Shawn D. Bushway, 2011.
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Why We Need Pretrial Reform, Pretrial Justice Institute.
Statements on Pretrial Risk Assessment Tools:
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Joint Statement: Pretrial Risk Assessment Instruments, March 2019.
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Pretrial Justice Institute: Updated Position on Pretrial Risk Assessment Tools, Feb. 7, 2020.
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The Use of Pretrial “Risk Assessment” Instruments: A Shared Statement of Civil Rights Concerns, July 30, 2018.
