Washington Courts: Judicial News Report Detail

A Study on Racial and Ethnic Disparities in Superior Court Bail and Pre-Trial Detention Practices in Washington

I. PROJECT BACKGROUND AND OBJECTIVES

This report describes the results of a study on extensiveness and causes of racial and ethnic disparities in the bail and pre-trial release decisions of Superior Courts in the State of Washington. The research is the fourth in a series of studies sponsored by the Washington State Minority and Justice Commission. This study has four objectives in accordance with the Commission's mandate. These objectives are:

In this study the word "minority" is used interchangeably with "nonwhite" and is a shorter reference to "persons of color." For further reference, we include in this category African American/Blacks, Hispanic/Latinos, Asians, and Native American/Indians.

The main source of law governing bail and pre-trial practices in the Superior Courts of the State of Washington is rules specified in the Washington Court Rules, State (1996). Superior Court Criminal Rule (CrR) 3.2 contains almost identical language to Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 3.2. These rules establish a general process for bail and pre-trial release decisions in Washington Superior Courts. Local court rules have also been established within each county. As a result, bail and pre-trial practices may vary somewhat across counties.

In the State of Washington, a defendant charged with a criminal offense has a constitutional right to bail prior to trial, except in capital cases "when the proof is evident, or the presumption great" (Washington Constitution, Art.1, § 20). Under the criminal rules (CrR3.2(a)), the presumption is that defendants will be released on personal recognizance (PR). These rules also specify the factors that judges should consider in determining release conditions. These include factors pertaining to the crime and prior criminal history, indicators of community ties, and other factors such as reputation, mental condition and drug or alcohol abuse.

II. DATA ON BAIL AND PRE-TRIAL DETENTION DECISIONS IN THE SUPERIOR COURTS OF WASHINGTON

A major concern in this study is the availability and accessibility of data on bail and pre-trial release decisions in counties in eastern and western Washington. This section reviews information sources in state and county agencies on bail and release practices, and summarizes the major limitations of these data for analyses of racial and ethnic bias in Superior Court decision-making.

A. Data on Bail and Pre-trial Release Decisions

Although state and county agencies routinely collect extensive information on courts and court processes in Washington, very little of the information can be used to study racial and ethnic disparities in the disposition of criminal cases. Most of the available automated information is limited to administrative aspects of court processing. Very little information is routinely maintained by the courts on defendant or case characteristics that would be useful in analyses of case dispositions. Although individual county agencies retain information on persons charged with crimes and on bail and pre-trial release decisions, often these are located in multiple systems within each county. The extensiveness and usefulness of these systems varies considerably between counties.

B. Limitations of Data for Analyses of Bail and Pre-trial Release Decisions

There are six major limitations in accessing and using existing data sources. First, there exists no set of documents summarizing the different types of information maintained in each agency system. Second, most of the information systems are maintained on different types of computers in different electronic forms or information structures. This complicates the sharing of data across systems and any attempt to combine information from different sources. Third, each information system maintains different types of information on case and defendant characteristics. Fourth, some information maintained in the information systems is entered or coded in ways that must be interpreted with caution. Fifth, a subset of felony cases is never processed through the jails. Consequently there is little background information on these defendants available for analysis purposes. Finally, in most instances, information on the subjective assessments of defendants by court officials is not in an accessible form for analysis. King County is the only county that routinely collects and maintains automated information on the subjective assessments and recommendations of pre-trial services officers. In other counties, this information is only available in paper form.

In short, a statewide analysis of bail and pre-trial release practices is not possible given the information currently available. Only King County has sufficient automated data, albeit in different information systems, for conducting these analyses without additional data collection.

C. Implications for the Study and Future Research

The limitations of existing data on bail and pre-trial release practices have two implications for this study. First, given time and resource constraints on the project, the data and analyses were limited to felony cases processed in King County. Including other counties would have required substantially more time and budgetary support. Second, the construction of a sample for analysis required data from three information systems to be merged and some information to be manually coded, due to their form in the automated data.

The limitations of data on criminal justice in the State of Washington also have significant implications for future research on racial and ethnic disparities in the processing of criminal cases. The analysis of racial bias in court decision-making is extremely difficult to complete because of the poor quality of data available in automated form. Often data must be obtained from manual files which is time consuming and resource intensive, making it impossible to perform routine analyses for planning or policy purposes. State agencies like the Office of the Administrator for the Courts (OAC), in conjunction with the Superior Courts of each county, must begin collecting and maintaining, at a minimum, information on all defendants and the disposition of their cases from filing of charges to the imposition of sentences.

III. THE KING COUNTY SAMPLE OF CASES

The study is based on a sample of 1,658 cases drawn from the population of all defendants charged with felony offenses in King County between 1994 and 1996. Data on the characteristics of cases were collected from three different automated sources of information maintained by the Office of the Administrator for the Courts (OAC), the King County Prosecuting Attorney and the King County Department of Corrections.

The present study examines differences among the cases in bail and pre-trial release outcomes. The Superior Court released approximately fifty-four percent (54%) of the sample defendants pre-trial, typically with some supervision conditions. The court set bail/bond in fifty percent (50%) of the sample. Bail/bond amounts in the study sample ranged from $500 to $1,000,000. The mean (average) bail/bond amount was approximately $32,000. Because a few exceptionally large bail amounts may distort the mean, the median may more accurately reflect the true "average." The median bail/bond amount for our sample was approximately $10,000. Approximately sixty-four percent (64%) of defendants in the sample were able to meet the conditions of release either by accepting and complying with the provisions of supervision or by paying the specified amount of bail. The remaining thirty-six percent (36%) were not able to meet the court's conditions of release and remained in custody pending disposition of their cases.

IV. FINDINGS ON RACIAL AND ETHNIC DIFFERENCES IN BAIL AND PRE-TRIAL RELEASE IN KING COUNTY

The analysis of the sample data examined factors that influence the bail and pre-trial release outcomes for nonwhite or minority defendants and white defendants. Two aspects of the findings are important. The first is that the prosecuting attorney's recommendation and the severity of the offense consistently were associated with the court's pre-trial release and bail decisions. The court typically released defendants in the sample on personal recognizance when the prosecuting attorney favored release and granted bail in amounts quite similar to that recommended by the prosecutor. Further, the courts were least likely to release defendants on their own recognizance and very likely to set high amounts of bail if the offense was serious and involved domestic violence. Second, race and gender influenced the likelihood of pre-trial release and amounts of bail required, above and beyond the prosecuting attorney's recommendations, whether the case involved a serious crime and other factors. Thus, minority defendants and men were less likely to be released on their own recognizance than others even after adjusting for differences among defendants in the severity of their crimes, prior criminal records, ties to the community and the prosecuting attorney's recommendation.

Despite the consistency and strength of these findings, it would be inappropriate to conclude that racial and ethnic differences in pre-trial release necessarily reflect overt racial bias or discrimination in the decisions of Superior Court judges or staff. A detailed comparison of a sub-sample of cases included in the study suggests that caution in interpreting these types of empirical findings is warranted. It is possible that some of the racial and ethnic disparities in pre-trial release and bail decisions for the sample are caused by significant qualitative differences between the offenses and the personal circumstances of nonwhite or minority defendants and white defendants. To the extent that these types of differences contribute to disparities reported in the analyses, any interpretation of the disparities as solely the result of racial bias in the courts would be erroneous. Disparities have complex causes and among them are important qualitative differences among defendants in the types of crimes they have committed.

V. PERCEPTIONS AND KNOWLEDGE ABOUT RACIAL AND ETHNIC DISPARITY AND ITS CAUSES

As part of the project, twenty justice officials in King County were interviewed. The interviews focused on their perceptions of racial and ethnic disparities in bail decision-making, their views regarding the causes of disparity, and any remedies or solutions they may have suggested.

Many respondents expressed the concern that racial and ethnic disparities in pre-trial release and bail decisions are a significant problem. Most felt that the over-representation of minorities is a highly visible and troublesome issue in the courts. One judge stated the concern in terms of the make-up of the courtroom:

Well, I see the disproportionate numbers. When juries come in, when they bring a jury pool in for any trial, and I see the majority is of the white population. I don't see the minorities represented in our jury pool. I don't know if that has an impact then on the individual, if they are . . . doing time in a jail. And therefore, if they don't come back to a court date, then they're back into the jail and so that creates an increase in the jail population and the unfortunate overrepresentation of minorities in the jail population.

Perceptions of the causes of disparity, however, varied widely. Some respondents identified organizational constraints on courts, while others discussed the unintended effects of cultural differences among defendants.

Throughout the interviews, specific issues about pre-trial detention and bail practices in King County surfaced as potential factors contributing to racial and ethnic disparities. The issues include the community differences in law enforcement practices within King County, intensified enforcement and prosecution of drug offenses, and the regionalization of criminal justice in King County. Illustrative of the types of concerns expressed were those on the attention devoted to drug crimes and the heightened punishment associated with such crimes. Many respondents felt that the greatest impact of intensified drug enforcement and prosecution is on minority defendants. One respondent stated:

Without question, in any major urban area and particularly, in Seattle, the police make intentional undercover, highly concentrated efforts in the downtown corridor, or wherever it may be, to arrest dealers . . . . And, unfortunately, for whatever reason, a lot of it involves either Black or Hispanic individuals. The overwhelming majority of them are either Black or Hispanic. But [the police] are responding to a lot of pressure from the community to try to do something about these areas, wherever they may be. But what I am saying is that I don't think that same focus is involved in burglars or forgery or whatever.

In general, those interviewed identified many factors that contribute to racial and ethnic disparities in bail and pre-trial detention. Together, they felt that these factors represent constraints that conspire to keep minorities from obtaining pre-trial release. While the immediate consequences of pre-trial detention are obvious (i.e. denial of freedom of movement), the consequences of release extend beyond immediate freedom. In particular, prior court decisions regarding bail and pre-trial release influence court decisions in subsequent legal proceedings. One prosecuting attorney argued forcefully that if the defendant is initially granted personal recognizance and then successfully appears at future court proceedings, the court will tend to look favorably on that defendant:

If, in the life of the case, [defendants] have demonstrated a history of showing up, that's very powerful. For instance, on a case where we've charged somebody and they're at large, we send out a summons saying your arraignment is on this date. When you're arraigned, you're booked at that point in time. Then the issue of your continued release is litigated at that point. If you've voluntarily submitted yourself to the process and come in, that's a real powerful factor for judges. Appropriately so. To say, well, the prosecutor was right in the first place to ask for five thousand, but I'm impressed with your appearance here today and that you've come in on your own to appear. And I'm going to send you to supervised release, or maybe grant you a PR with some conditions. These people are in a whole different category from the folks that get detained or those who don't appear.

Defendants who are released pre-trial have the opportunity to demonstrate that they will comply with court rulings and appear at future proceedings. Ultimately, this may translate into more lenient disposition of their cases, perhaps acquittal at trial or less severe punishment at sentencing. To the extent that minorities are denied initial opportunities to comply, either by stringent conditions of release or by their own inability to marshal resources for release, courts may also be denying minorities the opportunity for more lenient disposition of the criminal charges against them.

VI. SUMMARY AND CONCLUSIONS

This study has three important findings. First, substantial racial and ethnic disparities exist in pre-trial release and bail setting in felony cases in King County. Second, the disparities occur primarily because minority defendants may be charged with more serious offenses, have more extensive criminal histories than white defendants, and may be less likely to have established ties to the local community in the form of steady employment, stable residential addresses and ready references. Third, disparities also occur because race and ethnicity seem to matter in the disposition of criminal cases, above and beyond the influence of case-related characteristics. They matter in part because the outcomes of criminal cases, at least in relation to pre-trial release and the setting of bail, depend upon access to resources. Because minorities are less likely than whites to have extensive resources, they are less capable of affording the most effective legal representation possible. Race and ethnicity also matter because the courts have difficulty in responding to the challenges of cultural differences among defendants. Cultural differences bring problems of language and communication that make verification of employment or residence, or other evidence of ties to the local community, problematic. Yet ties to the community are critical in judicial determinations of pre-trial release and the setting of bail.

The courts must assess how the disparities observed in the present study can be remedied. The remedies must seek to alter policies and rules that militate against fairness in pre-trial release and bail outcomes. Equally important is the manner in which courts and court officials respond to the increasing cultural diversity among defendants in criminal cases. This response must address fundamental problems of communication and language that continue to complicate assessments of defendants and their cases. Finally, the remedies must look to the information needs of courts and court officials. By improving the quality of information judges and other court officials have about defendants and their cases, courts may more effectively address inequities in pre-trial release practices that disadvantage entire classes of defendants.