NACDL - Race and Pretrial

Race and Pretrial

Issues of racial bias and racial disparity are pervasive in the criminal legal system. One of the most pronounced is the disproportionate number of persons of color who are detained pretrial. Steps must be taken to address these disparities on both the individual case level and the systemic level.

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:

In large urban areas, Black defendants accused of felonies are 25% more likely than white defendants to be held pretrial (Prison Policy Initiative, 2019).
A study on bail setting practices in Miami and Philadelphia found that Black defendants were over 11 percentage points more likely to be assigned monetary bail than white defendants, and received bail amounts that were $14,376 greater (Arnold, Dobbie and Yang, 2017).

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.