Document Type



Criminal Law


Catalyzed by the Black Lives Matter protests in 2020, support for criminal justice reform in the United States has become a groundswell, with reformers demanding an end to racial and socioeconomic disparities in all aspects of policing, prosecution, adjudication, and incarceration. While high-profile cases of police misconduct during arrest remain in the limelight, a growing and politically diverse chorus of voices is calling for change at the first point of contact between a defendant and the court system: the bail hearing. Bail decisions are highly consequential in terms of their scale and impact on the lives of defendants, their families, and the community. Yet, to date we only have incomplete evidence of disparities in bail decisions and their consequences. Without an adequate empirical picture of how bail decisions are actually made-and how state and local regimes dffer in structure and constituency-even sincere efforts at change will likely be short-lived and unsuccessful. Critically, we do not know enough about how judges evaluate whether to release a defendant prior to trial, and we have little reliable information about how the decisions made regarding pretrial release affect case outcomes and the long-term behavior of the defendants. The little data we have is either taken exclusively from or skewed heavily toward large urban areas. Without more comprehensive accounts to undergird reform, even sincere efforts at change are unlikely to yield lasting success.

This Article helps to fill this gap through an empirical analysis of more than 23,000 misdemeanor bail decisions from a mixed rural and suburban county in Arizona. Compared to the results of recent studies in large metropolitan cities, our findings are striking. We show that despite having virtually identical caseloads, the most "lenient "judges assign money bail in only 20% of their cases with average bail amounts of only $200, whereas the "strictest "judges assign money bail in nearly 60% of cases at an average of $2,500 per bail assignment (three and thirteen times higher, respectively).This variability has a racial component as well, with some judges as much as 12 percentage points more likely to assign money bail to Black defendants in comparison to their white counterparts. And the impacts of these disparities are not limited to the outcome of bail hearings: Downstream analysis shows that these judicial disparities have effects on the future behavior of defendants. Taken together, our findings suggest that for bail reform to be something more than merely cosmetic, reformers must take aim at high levels of judicial disparity. At the same time, reformers should be wary of one-size fits-all policy prescriptions that purport to provide unilateral remedies to all of the country's multifarious bail problems, instead recognizing that the specific relationships between courts and institutions, criminal defendants, and the broader community likely depend on the underlying characteristics of those systems and communities.

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Criminal Law Commons