Taming the System: The Control of Discretion in Criminal Justice, 1950-1990

By Samuel Walker | Go to book overview

misdemeanor. These data were consistent with the findings of earlier studies and gave additional support to the argument of preventive detention opponents that the entire issue of crime by persons on bail had been grossly exaggerated.

The reason failure-to-appear and rearrest rates did not increase, of course, was that the overall detention rate changed very little. The types of defendants judges believed to be high risks were already being detained. In short, a major change in the law of bail--which included an explicit revision of longstanding assumptions about the constitutional right to bail--produced relatively minor changes in actual practices.


Conclusions

The evidence of the two bail reform movements seems to lead to the same conclusion: formal controls at best have only limited capacity to control bail-setting discretion. Reflecting community attitudes as well as their own personal views, criminal court judges appear determined not to release certain offenders they regard as dangerous. Dangerousness is defined primarily in terms of the seriousness of the offense charged and the defendant's prior criminal record. This practice continues in the face of substantial research indicating that it is not possible to predict future criminality on the basis of prior criminal record. It is only a slight overstatement to describe the situation in terms of judges saying "rules be damned; we know who's dangerous and we're not going to release them."

These pessimistic conclusions should not deflect our attention from other real, although admittedly modest gains of thirty years of bail reform. Along with police discretion, plea bargaining, and many other decisions, the bail-setting decision has become visible. It is out in the open, we have reasonably good data on actual practices, we are aware of the problems associated with it, and policy is a matter of public debate. This represents considerable progress over the state of affairs thirty years ago.

Nor should we overlook the substantive accomplishments of the first bail reform movement. Many offenders who in years past would have been detained in jail simply because they were poor are now able to obtain their release. As a result, they are spared the pain of imprisonment and the higher risk of conviction and possible further imprisonment.

-79-

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Taming the System: The Control of Discretion in Criminal Justice, 1950-1990
Table of contents

Table of contents

  • Title Page iii
  • Preface v
  • Acknowledgments vii
  • Contents ix
  • 1 - Discretion and Its Discontents 3
  • 2 - Police Discretion 21
  • Conclusions 52
  • 3 - The Two Bail Reform Movements 54
  • Conclusions 79
  • 4 - The Plea-Bargaining Problem 81
  • Conclusions 108
  • 5 - Sentencing Reform 112
  • Conclusions 141
  • 6 - A System Tamed? an Interim Report on the Control of Discretion 145
  • Conclusion 156
  • Notes 157
  • Index 185
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