Academic journal article William and Mary Law Review

Corrections for Racial Disparities in Law Enforcement

Academic journal article William and Mary Law Review

Corrections for Racial Disparities in Law Enforcement

Article excerpt

B. The First Correction Mechanism: Prosecutors

The first set of outcomes we explored relates to how magistrates set pretrial release bail or bond. Recalling the four broad classes of release conditions--(1) promise to appear/custodial release/pretrial release; (2) unsecured bond; (3) cash; and (4) secured bond--we estimate Equation (1) with Bond_Class as the dependent variable and various subsets of the remaining regressors included. The ordered structure of the dependent variable means that larger odds ratios correspond to increased odds of the higher bond values. Thus, although we do not estimate the likelihood of receiving each pretrial release condition, we can say something about the relative likelihood of receiving more onerous conditions. Column 1 of Table 4 displays odds ratios and 95 percent confidence intervals from an ordered logit regression in which the dependent variable is sequenced as above with respect to perceived severity. (130) The point estimates suggest that Hispanic men are 86 percent more likely to receive a more taxing release mandate than white men and that this relationship is less pronounced for black men. White women, on the other hand, are 23 percent less likely to receive more onerous pretrial release conditions.

Column 2 indicates that the same pattern holds for whether the release condition carries any monetary payment, and Column 3 reports differences with respect to the amount of those payments using ordinary least square regressions. (131) In total, magistrates seem to set cash payments or bond amounts $330 higher for black men than white men and add stricter qualifications, for example, collateral property, for Hispanics and black men. One reason for Hispanic arrestees receiving less lenient treatment could be the higher perceived flight risk among undocumented immigrants. Whether black males suffer from outright animus or statistical discrimination over the probability of flight or culpability is a question we cannot reliably address with these data alone. (132)

Felony DWI charges and prior DWI convictions predict bail/bond amounts. As we expect, defendants charged with a felony DWI must overcome significant barriers to release, with bond amounts set about $8000 more than for non-felony arrestees. (133) In addition to the index offense, a prior DWI conviction also significantly increases the set bail amount by about $240. When we account for the fact that some of these conditions are cash payments versus bonds in Column 3, more restrictive pretrial release conditions lead to monotonic increases in the monetary value of the release condition.

Despite the fact that the use of public defenders versus court-appointed counsel is exogenous to the individual defendant, (134) the decision to appear pro se or pay for representation merits some exploration. The first notable feature of Table 5 is the robustness of the odds ratios across all specifications. (135) Reading across the rows for each race/gender group, black and Hispanic men are much more likely than white defendants of either gender to "choose" public or self-representation. (136) Black men are almost twice as likely as white men not to retain private counsel, whereas white women are almost indistinguishable from their male counterparts. (137) The estimates in Column 4 include all relevant explanatory variables yet essentially tell the same story as the parsimonious model in Column 1. (138) The most interesting result is that felony DWI charges dramatically increase the likelihood of public counsel or pro se representation. Even after controlling for socioeconomic characteristics--which unsurprisingly show that higher income reduces the odds of public or pro se representation--defendants charged with the most serious offense do not seek assistance from the private bar.

A prosecutor's decision to withdraw or never pursue charges opens the door to even more unobserved heterogeneity, primarily regarding the quality of underlying evidence or office priorities among different sorts of crimes. …

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