pageok
pageok
pageok
"Pretrial Release of Felony Defendants in State Courts":

A very interesting new report from the U.S. Department of Justice, though limited to the top 75 largest counties (and covering 1990-2004).

An example of the kind of data you can find: When the most serious arrest charge was murder, 45% were denied bail, and 35% were required to provide bail of $50,000 or more; 19% were actually released. For the next most serious charge, rape, 9% were denied bail, and 25% were required to provide bail of $50,000 or more; 53% were actually released. There's much more interesting material in that report, and in the supporting data files.

one of many:
interesting. 2 things struck me, the disparity between the conviction rates of released and detained and the increase in the use of bail bondsmen over time. I'm not sure what signifigance to place upon them, but they are worthy of more investigation than the report allows.

The first is most troubling, probability of conviction/acquital isn't supposed to have that large an effect on bail hearing (60% conviction rate versus 78%) but there may be other factors resulting in this. In theory also a detained defendant should not be penalized significantly in ability to mount a defense, but on it's face this discrepancy could support the opposite view. Good food for thought.
11.19.2007 6:28pm
Houston Lawyer:
Of those released, 1/3 charged with pretrial misconduct, 1/4 failed to appear, 1/6 otherwise re-arrested. Sounds to me like we need bigger jails.
11.19.2007 6:31pm
SHG (www):
I'm sure I'll regret asking, but what about this shockingly obvious report do you find "very intersting?"
11.19.2007 7:41pm
Eugene Volokh (www):
Well, if you found all the data in the report to be "shockingly obvious," then I admire your knowledge base and intuitions. On the other hand, if one hasn't already seen this data in one form or another, then I'd think it would be very interesting to see it even if it confirms one's suspicions: It's more interesting to know than to guess, even to guess correctly.
11.19.2007 8:06pm
SHG (www):
Non-responsive.
11.19.2007 9:11pm
Visitor Again:
In theory also a detained defendant should not be penalized significantly in ability to mount a defense, but on it's face this discrepancy could support the opposite view. Good food for thought.

Not true in practice. It is immensely more difficult to defend an accused who is confined before and during trial. Ask any lawyer who has represented both defendants who were enlarged and those who were incarcerated.
11.19.2007 9:40pm
Eugene Volokh (www):
SHG: I guess I'm not really inclined to respond further, given the tenor of your more recent comment.
11.19.2007 10:59pm
one of many:
Well probably yes Visitor Again, but it ought to at least be a mantainable fiction. If it becomes conclusive that pre-trial detention makes mounting a defense more difficult then the nature of pre-trial detention must be changed to correct this injustice. This survey of pre-trial detention doesn't provide enough information to be sure of that though, so the fiction of equal justice without regard to wealth can be mantained. While it is indicative of a discrepancy, it is not proof of one, and somehow I doubt the USDOJ will produce a study in the near future which would either prove or disprove detention makes mounting a defense more difficult (sotto voce:: because everyone knows what the result would be).
11.19.2007 11:16pm
George Weiss (mail):
EV-

i think what SHG wants to know is whether you have any ideas or theories to explain this data...or is "interesting" all that you have to say

(btw i dont mean to agree that you were non responsive or that the data is in any way 'obvious')

also your obviously not required to have a theory
11.19.2007 11:24pm
Eugene Volokh (www):
George Weiss: I have no explanatory theories, sorry to say -- I haven't studied the subject at all. But I find lots of things interesting even though I have no explanation for them (sometimes because I have no explanation for them). SHG, I take it, has ideas or theories to explain the data, or else he wouldn't find the data obvious; but not me.
11.19.2007 11:49pm
George Weiss (mail):
EV-

understood
11.19.2007 11:50pm
GV_:
From a policy perspective, I'm not sure the aggregate numbers are particularly helpful. States have different bail laws. And even when states have similar bail laws, the way those laws are applied in practice differ dramatically.

For some perspective, up until 1984 in the federal system, defendants were detained pre-trial only if they were a flight risk. Whether they were a danger to the community was irrelevant; the sole purpose of bail was to ensure the defendant's appearance at trial. Historically, this was the lone concern of pre-trial bail. That changed in 1984 when Congress passed the Comprehensive Crime Control Act, which dramatically altered bail practice in federal court. (As an aside, that Act also ushered in the sentencing guidelines.) Bail reform was primarily motivated by the concern that too many defendants out on bail were committing crimes. To remedy that defect in the prior bail law, the Act allowed a defendant to be detained solely because he was a danger to the community. The Act faced numerous constitutional challenges, as it essentially allowed defendants to be convicted of a crime ("dangerousness") and imprisoned after a judge (not a jury) found facts based on the clear-and-convincing (not beyond-reasonable-doubt) standard. A divided Supreme Court held that the Act was constitutional because the purpose of the incarceration was not penal, but simply to protect the community. Why Congress's intent matters in that respect is not clear to me. The name of the Supreme Court case escapes me. But it was clear that defendants committing crimes while out on bail was a growing problem and the Court was not going to stop Congress from trying to address that problem.

The numbers have shown that post-1984, defendants out on bail are much less likely to commit a crime while out on bail than they were pre-1984. A lot of literature has argued, however, that courts are too quick to incarcerate people and the law is too harsh. While it's always popular to have an attitude of lock them all up, it's incredibly expensive to do that. And the more people you lock up pre-trial, the more likely you are to lock up innocent people who never committed a crime to begin with. There's at least some evidence supporting the idea that a more liberal use of pre-trial conditions of release would be a more cost-effective way of dealing with the crime problem.
11.19.2007 11:58pm
GV_:
(I should add that I'm going off my notoriously bad memory, so I could have screwed up some of the details.)
11.20.2007 12:00am
Crunchy Frog:
At least in high profile cases, having the defendant out in a nice suit, saying all the right things to the media, and generally being "charming", can seriously prejudice the potential jury pool towards a not guilty verdict. It's a little hard to accomplish this if he can't make bail.
11.20.2007 12:11am
One of many:
To clarify my position with regards to 11:16 post, I'm not sure that detention is the cause of the higher conviction rate for detainees relative to releasees. I think the conventional wisdom that it makes it harder for a defendant to recieve justice is worthy of review. The discrepancy betweeen conviction rates might actually be because of a kind of reverse Suttonism, people who commit crimes are less likely to be released because they don't have any money. I don't know, I know what the conventional wisdom is but that doesn't necessarily make it true. It did strike me as the most pressing issue in need of more study from the DOJ report, although others are interested in different things like the rearrest rate.
11.20.2007 12:22am
George Weiss (mail):
GV- if the only reason you could lock someone up (even temporarily) was if they were convicted beyond a reasonable doubt...then why would fight risk be any more OK than danger to the community

Crunchy Frog-is biasing the jury pool suddenly a consideration in bail...i would think that giving the defendant the opportunity to provide a defense is a consideration too then. also high profile cases arnt so common.
11.20.2007 12:23am
Crunchy Frog:
You'll have to forgive my cynicism, but I live in Los Angeles, where it's impossible for a celebrity (even one so tenuous as Phil Spector) to be convicted. Unless, of course, your attorney is Mark Geragos (see: Winona Ryder).
11.20.2007 2:02am
SHG (www):
Sorry that you found the tenor of my comment disturbing. I asked the question to learn the answer.
11.20.2007 6:28am
Rodger Lodger (mail):
In the early 1970s the New York City Legal Aid Society sued to void the local bail system on the ground that incarceration pre-trial increased the chance of conviction and the size of the sentence. The suit was bolstered by statistical analysis by the leading empirical sociologist of the day. LAS lost on the ground that the higher conviction rate and larger sentences for those who were incarcerated proves the bail system works. See Bellamy v. Judges, 32 N.Y.2d 886 (1973), and opinion in Appellate Division below.
11.20.2007 8:50am
George Weiss (mail):
Crunchy Frog:

oh i understand completly
11.20.2007 9:36am
Bruce Hayden (mail) (www):
EV said:
I have no explanatory theories, sorry to say -- I haven't studied the subject at all. But I find lots of things interesting even though I have no explanation for them (sometimes because I have no explanation for them).
This is one of the reasons that this is one of my favorite blogs.

I have the same problem as Eugene has, though I am not nearly as articulate in explaining myself. By now, things are thrown at me when I start out a statement by "I find it interesting that".
11.20.2007 9:54am
Bruce Hayden (mail) (www):
The problem here is separating causation from correlation. Part of the reason for the correlation may be socio-economic, that those who are more likley to be able to afford bond are also more likely to be able to afford a good, private, defense. Also, possibly, that those who can show a strong connection to the community and a steady job are more likely to get lower bond, since their flight risk is lower, but also are more likely to show well at trial.

That said, even if it is significantly more correlation than causation, I still have my problems. For a distinct majority of defendents, the state has better resources, and thus can expect more convictions based on that alone. But the more assets someone has access to, the better the defense they can put on, and at some point, they can field more resources than the state can. And the result is that convictions go down as the socioeconomic status of the defendant goes up (and obviously, this has some correlation to ability to bond out).
11.20.2007 10:06am
Bruce Hayden (mail) (www):
Of those released, 1/3 charged with pretrial misconduct, 1/4 failed to appear, 1/6 otherwise re-arrested. Sounds to me like we need bigger jails.
Not when we have Dog out ther rounding them up. Just think of what TV would be like without people jumping bail. No more guys in balistic vests, long hair, and tatoos tracking down miscreants, out smarting them, jumping out of cars, and bringing them to justice.
11.20.2007 10:10am
hattio1:
I can't open the link, so I don't know if this accounts for the large difference in conviction rates of those incarcerated vs. those set free on bail. But I can tell you that those who remain in jail are much more likely to jump on the first offer they are given. So, if they are considering convictions pursuant to a plea negotiation in their conviction rate, I would bet that explains most, if not all, of the discrepancy.
11.20.2007 12:04pm
hattio1:
Crunchy Frog;
Couldn't you just as easily say that NOT having the defendant out and appearing in public in a high-profile case, when the DA is out and appearing in public biases the jury? After all, by your own limitation, your talking high-profile cases. These are ones that are being talked about. If the Defendant isn't offering a defense, the DA, police, possibly the victim, and all the former prosecutor "legal analysts" are offering their version. That seems much more likely to bias.
11.20.2007 12:08pm
Eugene Volokh (www):
SHG: I didn't find your comments disturbing. I did find a comment that simply said "Non-responsive" to be rude.
11.20.2007 12:30pm
One of many:
Thanks for the citation Rodger, as Bruce points out a statistical correlation is just a statisical correlation. I'm not certain how it could be used as proof the bail system works though, since likelyhood of conviction is not supposed to be a factor in determining bail. I wonder if Bellamy can be used to force the prosecution to present its case in a bail hearing.

Hattio, the link doesn't break down convictions into plea and trial convictions. A possibility, espcially since it does have the average time from arrest to disposition, 45 days average(median) for detainees and 127 days average(median) for releasees. While there is often a stronger push for a speedy trial for people who are in jail awaiting trial, that 45 day number does not in my experience represent many people actually being convicted at trial.
11.20.2007 12:44pm
Crunchy Frog:
Hattio: Any pre-trial publicity advantage the prosecution team gains by talking to the media is negated in jury selection. The system itself is biased towards finding jurors who have had zero exposure to a case, positively or negatively. In practice, that means finding a group of people so ignorant that, wrt slam-dunk DNA evidence, "all that proves is O.J. got blood."
11.20.2007 1:11pm
hattio1:
Crunchy Frog;
I don't know if you're a lawyer, but the standard in my jurisdiction (AK) is so lax that the proposed jurors have to basically admit that not only were they exposed, but that the exposure biased them. I had potential jurors saying "well, it wouldn't bias me if the defense could show it wasn't true." Basically, not only saying they are biased but also that they are going to shift the burden of proof. No dice. They got seated.
11.20.2007 3:37pm
NickM (mail) (www):
Those defendants deemed a danger to the community are likely to have greater criminal histories - often things that can be introduced as evidence at trial (especially if the defendant testifies). Is anyone actually surprised that the guys with longer rap sheets are more likely to be convicted?

Nick
11.21.2007 6:05pm