BAIL DECISION MAKING AND PRETRIAL DETENTION - SURFACING JUDICIAL POLICY

• NCJ Number: 69296
• Journal: Law and Human Behavior Volume: 3 Issue: 4 Dated: (1979) Pages: 227-249
• Author(s): J S GOLDKAMP; M R GOTTFREDSON
• Date Published: 1980
• Length: 23 pages
• Sponsoring Agency: National Criminal Justice Information and Statistics Service
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: REVISED VERSION OF A PAPER PRESENTED AT THE ANNUAL MEETING OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION, TORONTO, CANADA, AUGUST 1978

Annotation

U.S. CASE LAW AND STATUTES GOVERNING BAIL PRACTICES ARE REVIEWED TO CHARACTERIZE BAIL JUDGES' LEGAL FRAMEWORK, AND A LARGE URBAN JURISDICTION'S BAIL DECISIONS ARE ANALYZED TO DISCOVER PRETRIAL RELEASE FACTORS.

Abstract

BAIL PRACTICES BECAME THE TARGET OF REFORM EFFORTS DURING THE 1960'S AND 1970'S, NOT ONLY BECAUSE OF ISSUES CONCERNING ECONOMIC BIAS AGAINST INDIGENT DEFENDANTS, BUT ALSO BECAUSE OF CRITICISM OF THE BAIL DECISION INSELF. QUESTIONS WERE RAISED ABOUT THE APPROPRIATE USES OF BAIL (E.G., TO PREVENT FLIGHT OR PRETRIAL CRIME, OR TO INFLICT PRETRIAL PUNISHMENT), THE RATIONALITY OF THE CRITERIA RELIED ON BY JUDGES IN DECIDING BAIL, AND THE DISCRETIONARY ALLOCATION OF PRETRIAL DETENTION THROUGH HIGH CASH BAIL. STUDY OF U.S. CASE LAW AND STATUTES SHOWS THAT, EVEN AFTER YEARS OF REFORM, COMMUNITY-TIES MEASURES DO NOT PLAY A MAJOR ROLE IN THE BAIL DECISION OR THE DETERMINATION OF PRETRIAL CUSTODY; RATHER, THE NATURE OF THE CHARGED OFFENSE APPEARS MOST INFLUENTIAL. A FINDING OF SPECIAL SIGNIFICANCE IS THAT A LARGE PROPORTION OF THESE DECISIONS COULD NOT BE EXPLAINED SYSTEMATICALLY (I.E., A LARGE SHARE OF VARIANCE REMAINED UNEXPLAINED). THE GUIDELINES APPROACH TO BAIL COULD NARROW DISPARITY IN BAIL OPTIONS AND THE USE OF DETENTION, ENHANCE THE RATIONALITY OF THE DECISION PROCESS, AND CONTRIBUTE TO MORE EQUITABLE PRETRIAL PRACTICES. IN THE GUIDELINES APPROACH, RATIONALITY WOULD BE ASSESSED, EQUITY INVESTIGATED, AND VISIBILITY CONSIDERABLY IMPROVED. FIRST, THROUGH DATA COLLECTION AND STATISTICAL ANALYSIS OF CASES DECIDED BY BAIL JUDGES, PATTERNS IN PAST DECISIONS WILL BE DISCERNED AND A MEANS PROVIDED TO MAKE BAIL DECISION POLICY EXPLICIT. IF PREDICTION OF BAIL DECISIONS IS SUCCESSFUL, THEN THE FACTORS CONSISTENTLY ASSOCIATED WITH DECISIONS CAN BE BUILT INTO A MODEL THAT IS DESCRIPTIVE OF DECISIONMAKING POLICY. THESE MODELS CAN THEN BE FED BACK TO DECISIONMAKERS, POLICY ISSUES CAN BE RAISED AND DEBATED, AND THE MODELS CAN BE REFORMULATED SO AS TO BRING VISIBILITY TO THE POLICY UNDERLYING THE BAIL DECISION. EXTENSIVE FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED) ABI MHP