Academic journal article Journal of Criminal Law and Criminology

Assessing Dangerousness Amidst Racial Stereotypes: An Analysis of the Role of Racial Bias in Bond Decisions and Ideas for Reform

Academic journal article Journal of Criminal Law and Criminology

Assessing Dangerousness Amidst Racial Stereotypes: An Analysis of the Role of Racial Bias in Bond Decisions and Ideas for Reform

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                           654 I. THE PURPOSES, PRACTICES, AND IMPLICATIONS OF BOND   659    A. Background of the Bond System                    659    B. Recent Changes to Bond in Cook County            665    C. The Consequences of Pretrial Detention           667    D. Racial Bias in Bond Decisions                    671 II. IDEAS FOR REFORM                                   672 CONCLUSION                                             677 

INTRODUCTION

In the past couple of decades, the United States has imprisoned more people, both in real numbers and as a percentage of the total population, than any other country. (1) As of 2008, the U.S. has 2.3 million people, (2) nearly 1 % of the U.S. adult population, behind bars. (3) Despite the 50% decrease in national crime rates since the 1990s, the rate of incarceration has grown at approximately 3% each year from the early 1990s through the early 2000s, (4) though in recent years the incarceration rate nationally has shown early signs of slowing down. (5) These persistently high incarceration rates strain correctional facilities and stretch state budgets to accommodate the enlarging population. (6) In a 2012 nationwide study of county jails, 15% of responding jails reported that confined jail populations were at or above the facility's capacity at the beginning of the year, and over 40% of the jails were operating at over 80% capacity. (7)

The impact of mass incarceration on prison and jail facilities is exceptionally evident in Illinois and Cook County, in particular. (8) Situated on ninety-six acres of Chicago's southwest side, the Cook County Jail is one of the largest, single-site jail facilities in the country and as recently as 2012 has routinely operated at approximately 90% capacity at all times. (9) The issue of severe overcrowding and its attendant impact on jail conditions for inmates and the strain on county resources has been documented as early as the 1920s (10) and has been the subject of decades of litigation in federal courts. (11) In Cook County, the jail population rose considerably from around 8,700 in early 2011 to more than 10,000 at its peak in August 2013. (12) In addition to the human costs of mass incarceration on the social and economic welfare of the community, the costs to operate crowded jails and prisons are exorbitant. As of 2017, the estimated cost to taxpayers to operate the Cook County Jail was $550 million annually, an average of more than $61,000 a year per detainee. (13) Greater attention to a defendant's access to release from jail and prison can alleviate the ballooning burdens of the carceral state.

The rate at which defendants are eligible for pretrial release contributes to this rise in incarceration. The bond process represents the beginning of a defendant's contact with the criminal court system and pretrial detainees make up nearly two-thirds of the total defendants confined in jails nationwide. (14) As overall incarceration rates increased, the share of confined pretrial detainees in jails also rose from 56% of the total jail population in 2000 to 63% of the total jail population in 2014. (15) Bond determinations involve assessments of a defendant's risk pretrial when the defendant is presumed innocent. (16) Unlike a judge's sentencing decision in the aftermath of a guilty verdict, bond decisions are unique moments in the criminal system in which there is a presumption towards release, sometimes explicitly written in the state statute. (17) The bond process provides a special opportunity to alleviate the problems with overcrowding and mass incarceration by reexamining the decision makers' assessments of the defendant's risks and their decisions about release versus detention.

A detailed examination of bond decisions across the country is important not only to address the burdens of mass incarceration, but to address the way that bond decisions fuel racial disparities already evident in other areas of the criminal legal system. …

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