Bail Decisions Cross Borough 04

CJA

NEW YORK CITY CRIMINAL JUSTICE AGENCY NEW YORK CITY CRIMINAL USTICE AGENCY

Jerome E. McElroy Executive Director

FACTORS INFLUENCING RELEASE AND BAIL DECISIONS IN NEW YORK CITY PART 3. CROSS-BOROUGH ANALYSIS

Mary T. Phillips, Ph.D. Project Director

FINAL REPORT

July 2004

52 Duane Street, New York, NY 10007

(646) 213-2500

Factors Influencing Release and Bail Decisions in New York City Part 3. CROSS-BOROUGH ANALYSIS

Courtroom Observers: Raymond Caligiure Graphics and Production Specialist Mary T. Phillips Project Director Elyse J. Revere Junior Research Analyst Elizabeth Walton Senior Research Assistant Systems Programmer: Wayne Nehwadowich Senior Programmer/Analyst Additional Project Staff: Taehyon Kim Junior Research Programmer Bernice Linen-Reed Administrative Associate

July 2004

PART 3 TABLE OF CONTENTS List of Figures and Tables............................................................................................................ ii Preface........................................................................................................................................... iii Acknowledgements ...................................................................................................................... iv I. Introduction ............................................................................................................................... 1 A. The Research Project on Judicial Release and Bail Decisions ............................................ 1 B. CJA and the Release Decision ............................................................................................. 2 C. Research Questions .............................................................................................................. 4 D. Review of Prior Research .................................................................................................... 5 E. Methodology......................................................................................................................... 9 II. ROR Decisions........................................................................................................................ 11 A. Bivariate Relationships Between ROR and Selected Factors............................................ 11 1. ROR by Charge Severity, Separately by Borough....................................................... 11 2. ROR by Judge, Separately by Borough and Charge Severity ..................................... 12 3. ROR by Prosecutor’s Bail Request, Separately by Borough....................................... 13 B. Multivariate Analyses of the Factors Affecting ROR ...................................................... 14 1. Overview of Previously Reported Findings................................................................. 14 2. Models Predicting ROR, Without and With the Prosecutor’s Bail Request................ 15 III. Bail Amount Decisions ......................................................................................................... 21 A. Bivariate Relationships Between Bail Amount and Selected Factors ............................... 21 1. Bail Amount by Charge Severity, Separately by Borough .......................................... 21 2. Bail Amount by Judge, Separately by Borough and Charge Severity......................... 22 3. Bail Amount by Prosecutor’s Bail Request, Separately by Borough .......................... 23 B. Multivariate Analyses of the Factors Affecting Bail Amount ......................................... 24 1. Overview of Previously Reported Findings................................................................. 24 2. Models Predicting Bail Amount, Without and With the Prosecutor’s Bail Request ... 24 IV. Prosecutors’ Bail Requests .................................................................................................. 27 A. Bail Requests by Borough................................................................................................. 27 B. Multivariate Models of Prosecutors’ Consent to ROR ..................................................... 27 C. Multivariate Models of the Amount of Bail Requested by Prosecutors ........................... 30 V. Agreement Among Prosecutor, CJA, and Judge ............................................................... 32 A. Agreement on ROR .......................................................................................................... 32 1. Agreement Between Prosecutor and CJA Recommendation....................................... 33 2. Agreement Between Judge and Others ........................................................................ 34 B. Agreement on Bail Amount Between Judge and Prosecutor ............................................ 36 VI. Conclusions and Discussion ................................................................................................. 39 VII. References............................................................................................................................ 46 Appendix A Independent Variables Tested in the Analyses........................................................ 50 Appendix B Logistic Regression Models Of ROR for All Cases Combined .............................. 53 -i-

PART 3 LIST OF FIGURES AND TABLES FIGURES Figure 1 ROR Rate by Charge Severity in Brooklyn and Manhattan ....................................... 11 Figure 2 Range of ROR Rates for Judges in Brooklyn and Manhattan, Separately for Non-felony and Felony Cases ............................................................. 12 Figure 3 ROR Rate by Prosecutor’s Bail Request in Brooklyn and Manhattan ....................... 13 Figure 4 Median Bail Amount by Charge Severity in Brooklyn and Manhattan...................... 21 Figure 5 Range of Median Bail Amounts Set by Judges in Brooklyn and Manhattan, Separately for Non-felony and Felony Cases ............................................................. 22 Figure 6 Median Bail Amount by Prosecutor’s Bail Request in Brooklyn and Manhattan...... 23 Figure 7 Willingness to ROR: Comparing Prosecutor's Request, CJA Recommendation, and Judge's Decision, Separately for Brooklyn and Manhattan ................................. 32 Figure 8 Agreement on ROR Between Prosecutor and CJA Recommendation, Separately for Brooklyn and Manhattan ..................................................................... 33 Figure 9 Agreement on ROR Between Judge and Others by Prosecutor-CJA Agreement Separately for Brooklyn and Manhattan ..................................................................... 35

TABLES Table 1

Logistic Regression Models of ROR for Misdemeanor and Felony Cases, Without and With Prosecutor’s Bail Request: Brooklyn ........................................... 17 Manhattan ......................................... 18

Table 2

Ordinary Least Squares Regression Models of Bail Amount, Without and With Prosecutor’s Bail Request, in Brooklyn and Manhattan ............... 25

Table 3

Prosecutor’s Bail Requests in Brooklyn and Manhattan ............................................ 27

Table 4

Logistic Regression Models of the Prosecutor’s Consent to ROR in Brooklyn and Manhattan ........................................................................................ 28

Table 5

Ordinary Least Squares Regression Models of the Amount of Bail Requested by the Prosecutor in Brooklyn and Manhattan ........................................................... 30

Table 6

Agreement on ROR Between Judge and Others in Brooklyn and Manhattan............ 34

Table 7

Correspendence Between Prosecutor’s Bail Request and Amount of Bail Set: Brooklyn ........................................... 37 Manhattan ......................................... 38 Additional Tables Included in Appendix B Table B-1 Logistic Regression Model of ROR for All Cases Combined, Without and With Prosecutor’s Bail Request (Brooklyn) ......................................... 53 Table B-2 Logistic Regression Model of ROR for All Cases Combined Without and With Prosecutor’s Bail Request (Manhattan) ....................................... 53 - ii -

PREFACE This is the third and final report in a series describing the results of research on judicial release and bail decisions at Criminal Court arraignment in New York City. The research was done using observational methods in Manhattan and Brooklyn courtrooms from September 2002 through March 2003. Part 1 describes the findings in Manhattan; Part 2 describes the findings in Brooklyn; the current report, Part 3, presents borough comparisons and synthesizes the findings.

Drafts of all three reports were circulated for comment during 2003 and early 2004, and the reports were subsequently revised. The numbering of the parts reflects the order in which drafts were completed and circulated: Part 1 in May 2003; Part 2 in September 2003; Part 3 in January 2004. All three final reports are being released simultaneously in July 2004.

Readers interested in full accounts of the data-collection procedures in each borough will find them in Parts 1 and 2, along with exhibits containing the letter used to introduce the study to arraignment judges and the coding sheet used in recording observations. The first two reports also contain detailed descriptions of the samples and data on the arguments used by prosecutors and defense attorneys in support of their requests for release or bail. These methodological and descriptive details have been omitted from Part 3 in order to present borough comparisons of the findings, to explore further questions raised by them, and to synthesize and discuss the implications of the research results.

Some material from the first two reports is duplicated in Part 3 so that it can stand alone. In particular, much of the Introduction (Section I) is repeated from earlier reports, although in an abbreviated form. New material in this report begins with Section II. A brief summary of the study containing the highlights of the research findings and major conclusions will be the subject of a future issue in CJA’s Research Brief series.

Mary T. Phillips, Ph.D. Project Director July 2004

Reports on the Study of Judicial Release and Bail Decisions: • Factors Influencing Release and Bail Decisions in New York City, Part 1. Manhattan Part 2. Brooklyn Part 3. Cross-Borough Analysis • Release and Bail Decisions in New York City Research Brief No. 6 (forthcoming, August 2004)

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ACKNOWLEDGEMENTS

The author thanks Jerome E. McElroy, Executive Director of CJA, for supporting and guiding this project, and Dr. Richard R. Peterson, Director of the Research Department, for many helpful suggestions and advice.

Project staff members deserve special thanks for their many hours spent in court observing arraignments, followed by the tedium of coding notes and entering the data. Each one assisted the project in many other ways as well. Raymond Caligiure assisted with the presentation of statistical data and research into the practices of bail bondsmen; Elizabeth Walton prepared the computer file for analysis; and Taehyon Kim provided technical assistance with the database.

Elyse Revere’s contribution was particularly noteworthy, as she was the primary courtroom observer and helped with statistical analyses and writing of earlier reports on this research. Her knowledge of courtroom procedures and her analytical abilities were invaluable.

Thanks also to Wayne Nehwadowich for extracting case-level and arraignment data from the CJA database to supplement the data collected by observation.

Above all, we are grateful to the many judges who shared their knowledge and insights with us.

We appreciate the assistance of Hon. Judith Harris Kluger, Administrative Judge for New York City at the time the research project was initiated; Hon. Martin Murphy, New York County Supervising Judge; and Hon. John Walsh, then Supervising Judge for Arraignments in New York City. In addition, we would like to thank the judges who facilitated our courtroom observations by allowing us to sit with them on the bench. Thanks are due especially to those members of the judiciary who read and commented on an earlier draft of this report. We cannot thank them by name, as the identities of individuals who participated in the study are confidential, but their willingness to answer questions and explain their decisions enriched the research immeasurably.

Many other courtroom personnel also gave graciously of their time, and we thank them as well: assistant district attorneys, members of the defense bar, and court officers.

The methodology, findings, and conclusions of the study, as well as any errors, are the sole responsibility of the Project Director.

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FACTORS INFLUENCING RELEASE AND BAIL DECISIONS IN NEW YORK CITY PART 3: CROSS-BOROUGH ANALYSIS

I. INTRODUCTION A. The Research Project on Judicial Release and Bail Decisions This report is the last in a series presenting the findings from a project to analyze the factors influencing judicial release and bail decisions in two boroughs of New York City. Previous reports from this study described the pilot project that preceded the current research (Phillips 2002) and presented detailed descriptive and analytic findings separately for Manhattan (Phillips and Revere, July 2004a) and Brooklyn (Phillips and Revere, July 2004b). This final report compares outcomes in the two boroughs and synthesizes what we have learned about the factors that affect release and bail decisions at arraignment in New York City’s criminal courts. New analyses are presented that aid in the borough comparisons and clarify the complex interrelations among factors.

The study utilized data collected during courtroom observations of approximately 1,000 cases in each borough. Weekday and evening arraignments were observed by a team of researchers over a period of six months beginning in September 2002 and ending in March 2003.

Additional data pertaining to the sample cases were entered manually from court calendars. Finally, computerized data pertaining to the defendant and the arrest were added to the research file from the database maintained by the New York City Criminal Justice Agency (CJA).

The court’s decision on release and bail-setting at arraignment is one of the most important decisions affecting a defendant facing prosecution. The judge has the very difficult task of weighing the defendant’s interest in liberty against the interest of the state in assuring the continued appearance of the accused in court until the disposition of the case. Wrong decisions may cause unnecessary suffering for defendants, who have not been convicted of any crime, as well as for their families. The court system bears the cost of wasted resources when defendants do not appear for scheduled dates, or, alternatively, the cost of jailing defendants awaiting trial.

There are also consequences for the judge, who may be blamed for crimes committed by a defendant on pretrial release; and for the legitimacy of the criminal justice system itself, which suffers when its requirements are flouted with impunity.

The decision is not unitary, but involves several discrete choices. Judges in New York have the option of releasing defendants outright, setting bail in any amount, or (in restricted circumstances) remanding without bail. When setting bail, the judge also decides on the form in which it must be posted (bond or cash). All this must be done in the space of a few minutes on the basis of limited information provided by the prosecutor, the defense attorney, the court papers — and occasionally by the defendant, whom the judge may question regarding his or her employment, living situation, financial circumstances, or some other topic deemed relevant.

It was the objective of the research to arrive at a better understanding of what in fact judges do consider relevant. New York State law enumerates a list of factors that are to be considered by the courts in setting bail, but judges exercise great discretion in selecting what factors to consider, how to weight them, and what conclusions to draw from them. Under the present law (Articles 500 through 530 of the New York Criminal Procedure Law), a judge must set bail

Part 3: Cross-Borough Analysis

or release on recognizance (ROR) in cases where the charge is a misdemeanor or lesser offense, but may deny bail in a small number of felony cases (CPL §530.20). In making a decision in regard to any defendant, “the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance when required” (CPL §510.30, 2. [a]). Public safety is currently not one of the factors that may be considered in New York, where arguments against “preventive detention” have historically prevailed. However, the imposition of supervisory conditions on release on the basis of public safety is commonplace elsewhere in the country.

Indeed, even the denial of release on this basis is permissible in many jurisdictions and has been upheld by the U.S. Supreme Court.

The factors that must be considered by the courts, as enumerated in CPL §510.30, include the defendant’s character, reputation, habits and mental condition; employment and financial resources; family ties and the length of residence in the community; criminal record; previous adjudication as a juvenile delinquent; previous record of failure to appear for required court appearances; the strength of the evidence and any other factor indicating probability of conviction; and the likely sentence if convicted.

One judge included in the research advised us simply to read the statute if we wanted to know what influences release and bail decisions. The statute, however, hardly provides clear instructions. Arraignment judges have so little information on some of the items (such as the defendant’s character and mental condition) that it is difficult to see how these factors can be given much consideration. Further, the law is silent on the relative weight that should be assigned to the various factors for which judges do have adequate information at arraignment.

There are no practical guidelines as to which defendants should be released or the amount of bail that should be set, given any specific combination of circumstances. There is no standard level of risk that is considered acceptable in assuring a defendant’s future attendance. Finally, no record is made of the reasons for release and bail decisions so there is no way of knowing which, if any, of the statutory factors were influential in a given case. For all of these reasons, reading the statute provides few clues to actual decision making.

Most judges we talked to in the course of this study seemed to feel that they had very little guidance in these matters, either from the law or elsewhere. The topic is covered briefly in orientation sessions given to all newcomers to the bench, but many judges indicated that their real training lay in prior courtroom experience as prosecutors or defense attorneys. These conditions would be expected to lead to considerable variation in decisions made by different judges for similar defendants and cases.

B. CJA and the Release Decision Of particular interest to the Agency is the role of its release-on-recognizance (ROR) recommendation system in the decisions made by judges. CJA interviews arrestees held for Criminal Court arraignment in order to collect background information regarding their community ties.

This information is the basis for a “point scale” recommendation system used by CJA staff to evaluate the likelihood that individual defendants, if released, would appear for subsequent court dates. The recommendation system is based on empirical research identifying objectively measured factors that are associated with failure to appear (FTA). The background information and the CJA release recommendation are provided to the courts at arraignment for the purpose of assisting judges in deciding whether to release a defendant on recognizance or to set bail.

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Part 3: Cross-Borough Analysis

The earliest precursor of the current CJA recommendation system was developed in the 1960s by the Manhattan Bail Project of the Vera Institute of Justice in the hopes of reducing the courts’ reliance on cash bail (Ares and Sturz, 1962; Ares, Rankin, and Sturz, 1963). The premise of the Vera (later, CJA) recommendation system was that defendants with strong ties to the community could be released without bail while awaiting the disposition of their cases because they have a very low risk of failure to appear for future court dates. This premise was validated through empirical research three decades ago (Lazarsfeld 1974), and a revised version of the Vera recommendation system remained in use in New York City from the mid-1970s until 2003.

The recommendation system that is now in use was implemented in June 2003 after undergoing further revisions based on extensive new research (Siddiqi 2003c, 2002, 2001, 2000).

A separate recommendation system for Juvenile Offenders (defendants under age 16 who are prosecuted in adult court for certain violent felony offenses) has been in use in New York City since 1996. The JO recommendation system — likewise based on community ties, but on different specific items from the ones used for adults — was also validated shortly after its implementation (Phillips 1999, 2000). Both the adult and the JO recommendation systems were shown in their respective validation studies to be effective in differentiating between defendants at lowest risk of failure to appear and those at higher risk.

The newly revised adult recommendation system takes into account two criminal history items as well as community ties. One of the new items — whether the defendant has a history of prior bench warrants — contributes the greatest number of points to the new point scale. The other new item is whether the defendant had an open case at the time of arrest. Research has shown that the new point scale would recommend more defendants for ROR, while maintaining their current FTA rate (Siddiqi 2003c, 2001). However, data collection for the judicial decision research was completed three months prior to implementation of the new system, so it did not affect cases in the study sample. References to the CJA recommendation in the analyses presented in the remainder of this paper refer to the “old” recommendation system, i.e., the one in use from the late 1970s to June 2003.

Under the recommendation system that was in effect during the study period, adults were considered to have strong community ties if they had a New York City area address and met at least some of the following conditions: (a) there was a working telephone in the defendant’s residence; (b) the defendant had resided at the current address for 18 months or longer; (c) the defendant expected someone (other than the complainant or defense attorney) at arraignment; (d) the defendant lived with parent(s), grandparent(s), legal guardian, or spouse; (e) the defendant was employed, in school, or in a training program full time. Defendants received CJA’s most favorable rating (“Recommended”) if any two of those conditions were met and CJA staff were able to verify both a NYC area residence and one response from among (b), (d), or (e). Defendants whose responses could not be verified (by a telephone call to a contact person named by the defendant) received a “Qualified Recommendation” if they reported a NYC area address and met any three of the conditions in items (a) through (e).

Because the courts must by law take other factors into consideration besides community ties, it was never expected that the judge’s decision would always be in accord with the CJA recommendation, and in fact there is considerable divergence. During the first six months of 2003, the latest period for which data are available, only 65 percent of adult defendants who were given CJA’s highest release recommendation (and whose cases continued past arraignment) were actually released on recognizance (CJA 2004). Furthermore, during the same period a majority

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Part 3: Cross-Borough Analysis

(54%) of defendants who were not recommended by CJA because of weak community ties were nevertheless released on recognizance. These figures carry a dual message: the fact that ROR rates were 11 percentage points higher for defendants who were recommended by CJA suggests that the recommendation had some influence; on the other hand, the large disparity between the CJA recommendation and whether the defendant was released suggests that the recommendation did not go very far in explaining ROR decisions.

It is too early to know if this disparity has narrowed after introduction of the new recommendation system. If a history of prior bench warrants and the existence of open cases are important factors in judges’ decisions — and the results from this project indicate they are — the changes made to the recommendation system could translate into a higher correspondence between ROR and the CJA recommendation in the future.

C. Research Questions The research questions with which this project began were addressed separately for Brooklyn and Manhattan in the first two reports. They are: • What factors significantly influenced release and bail-setting in New York City?

• Were the factors that influenced release and the amount of bail the same, or different?

• Was the CJA recommendation, or any of its component factors, important in either aspect of the decision?

• Was there consistency among judges in decision making?

In Part 3 we revisit those questions by re-analyzing the data from Brooklyn and Manhattan in an abbreviated and somewhat different form from that used in the earlier reports. In addition, the issue of borough comparisons is addressed here through one further question: • Did Brooklyn and Manhattan differ in the factors affecting either ROR or bail amounts?

Finally, the results of the prior analyses suggested a new line of questions that could be addressed without collecting additional data. Our most striking finding in both boroughs was that the prosecutor’s bail request was hugely influential in predicting both ROR and bail amount.

Because of the high correlation between the prosecutor’s request and charge severity, it was also clear that prosecutors relied heavily on charge severity in formulating their requests. This diminished or eliminated the statistical effect of charge severity on the release and bail decisions — not because charge severity was unimportant, but because it was filtered through the prosecutor’s request. The current report addresses the following additional questions about the role of the prosecutor’s request and its relationship to the CJA recommendation: • How much, if any, did the prosecutor’s bail request add to the ability of other factors to account for judicial decisions?

• What factors, in addition to charge severity, influenced the prosecutor’s bail request?

• How often was the prosecutor’s bail request in accord with the CJA recommendation?

• When the prosecutor and CJA were not in accord, what determined the judge’s decision?

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D. Review of Prior Research Work done by John S. Goldkamp, Michael R. Gottfredson and their colleagues, much of it completed in the 1970s and 1980s, constitutes the most extensive research to date on release and bail decisions in the United States (Goldkamp 1979; 1984; 1985; 1987; Goldkamp and Gottfredson 1985; 1979; Goldkamp et al. 1995; Gottfredson and Gottfredson 1988; Jones and Goldkamp 1991). Large-scale projects to establish systems of voluntary bail guidelines in Philadelphia, Boston, Miami, and Phoenix were undertaken in an effort to reduce the use of cash bail and to make bail decisions more visible and more equitable. At each site, the researchers interviewed judges, collected data and developed statistical models of bail decisions. The analyses were then used to construct guidelines reflecting the same factors shown by the models to be already influential in the judges’ decisions. Through the guidelines projects and other research, these scholars have contributed the bulk of what we know about bail decisions in this country over the past thirty years.

Statistical models of ROR and bail amount in Philadelphia left more than half of the variance unexplained, leading the researchers to conclude that decisions were not being made systematically, and thus not equitably — a situation that improved after implementation of guidelines (Goldkamp and Gottfredson, 1979). Subsequently, Goldkamp also found judicial decisions in Boston, Miami, and Phoenix, prior to the establishment of guidelines, to be uneven and random in nature (Goldkamp et al. 1995). A lack of fairness in judicial bail decisions, stemming from disparities in the treatment of similarly situated defendants, is a major theme in this body of work. Goldkamp concluded one discussion of the state of bail decisions in the early 1980s with the statement, “Judicial bail practices have suffered because judges have conducted bail in a lowvisibility, highly improvisational fashion with little meaningful guidance . . . What the Supreme Court has referred to as ‘experienced prediction’ in bail practice often amounts to guessing conducted in a vacuum” (Goldkamp 1985, p. 55; see also Goldkamp 1993).

At least one group of researchers has disputed this characterization. While acknowledging that numerous previous studies, including Goldkamp’s, had found “undisciplined discretion and caprice” in bail decisions, Barnes and colleagues maintained that their own results argued against this view, at least for the federal district in California that they studied. Most relevant to the current research is their finding that the strongest predictor of the bail decision was the Government’s recommendation (Barnes et al. 1989, p. 262).

A few other studies have also examined the effects of the prosecutor’s recommendation, with mixed results. Goldkamp included it in the variables he analyzed, and found that the prosecutor played a dominant role in Boston, which had no pretrial services, but not in the other three cities, all of which did have pretrial services though not necessarily provided by an independent agency (Goldkamp et al. 1995). In conjunction with the Vera Institute’s Manhattan Bail Project, Suffet (1966) recorded prosecutors’ and defense attorneys’ recommendations in New York City and analyzed interactions among judges and attorneys. Suffet concluded that “the defense attorney is the least influential member of the bail-setting triad,” and that when there was disagreement, the prosecutor usually prevailed (p. 318). In contrast to what was observed in the course of the present research, Suffet reported that about half of the time, the judge “simply fix[ed] bail without discussing the matter with either of the attorneys” (p. 323). The focus on courtroom interactions in this study provides an interesting glimpse at the ways in which some things have changed in the past 40 years (the judges we observed nearly always asked both the prosecutor

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Part 3: Cross-Borough Analysis

and the defense attorney for bail recommendations), while other things have stayed the same (the relative influence of the defense and prosecution).

Another early study found that when actual decisions were examined, bail was almost exclusively based on prosecutors’ recommendations, but when presented with hypothetical cases, judges were strongly influenced by defendants’ ties to the community (Ebbson and Konecni 1975, cited in Frazier et al. 1980). Frazier noted that attorney recommendations might explain some part of the large proportion left unexplained in statistical models from his own research on bail decisions in a southeastern state. Observers for that research had not recorded attorney recommendations, but thought the defense attorney rather than the prosecutor had greater influence (Frazier 1980, p. 179). This was the only study we found that suggested a stronger influence for defense attorneys than for prosecutors.

Outside the United States, prosecutors’ recommendations have recently been found to be important in bail decisions in Canada (Varma 2002) and in England and Wales (Dhami 2002).

In the Canadian research the prosecutor’s recommendation was of overwhelming importance in Youth Court cases. The British study was a mail survey asking judges to decide hypothetical cases; the recommendations of prosecutor and defense attorney ranked third and fourth respectively, behind charge severity and criminal history but above other variables, including community ties.

Complicating any comparison of results from prior research is the large variety of ways in which the bail decision has been conceptualized. Many studies (including the present one) have followed Goldkamp’s lead in treating the ROR decision separately from the bail amount, and they have usually found differences in the factors that influenced each (for example, Albonetti 1989; Bock and Frazier 1984; Frazier et al. 1980; Nagel 1983; Roth and Wice 1978). For various theoretical and practical reasons, some have been interested only in the ROR decision (Bynum 1982; Daly 1989; Kruttschnitt 1984; Kruttschnitt and Green 1984; Maxwell 1999; Maxwell and Davis 1999; Steury and Frank 1990). Others have elected to treat ROR and bail as a unitary decision, using a single continuous dependent variable to represent ROR and ranges of bail amounts (Bock and Frazier 1977), or to represent various combinations of different forms of bonds and other conditions coded from less to more restrictive (Barnes et al. 1989; Dhami 2002; Fleming et al. 1980; Stryker et al. 1983). A few researchers have extended the conceptualization to include a third step, whether to set a cash alternative for defendants for whom bail is ordered (Nagel 1983; Sviridoff 1986).

This and other methodological variations in prior research make it difficult to summarize the findings, but some generalizations can be made. In his authoritative criminal justice textbook, Don Gottfredson (1999) observes that “Over and over again, studies have shown that the seriousness of the charge and the prior criminal record of the defendant are the main factors that influence the bail decision” (p. 222). This was true in most, though not all, of the sites included in the Goldkamp guidelines research. Other examples include research in Florida (Bock and Frazier 1977, 1984) and in Washington DC (Albonetti 1989, Albonetti et al. 1989). In a study of federal judicial districts across the country, Stryker et al. (1983) reported that offense (including type of offense and severity) constituted the most important single category of variable, although non-legal factors were also significant.

In New York City, similar results have been obtained from the 1960s through the 1990s.

In the Vera study, charge severity was found to have the strongest influence on both ROR and

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Part 3: Cross-Borough Analysis

bail amount in Manhattan, with criminal record also affecting both aspects of the decision (Suffet 1966). (Suffet did not control for effects of the prosecutor’s request, which he analyzed separately). For a sample of cases arraigned in 1974 and 1975, Nagel concluded that charge severity was important for both the ROR decision and for bail amount, but much more so for bail amount (Nagel 1983). The Nagel study examined one (unidentified) borough of New York City.

Two CJA studies provided further evidence of the dominance of charge severity in release decisions in New York City in the 1980s and 1990s. The first was a study of New York City arraignment outcomes, including release decisions, using a sample of over 10,000 defendants arraigned in 1989 (Lee 1995). This research found that charge severity was the most important factor in ROR, citywide and in each borough, and criminal history was also important.

The second study used a data set comprised of all Juvenile Offenders (JOs) arraigned within a 14-month period in 1996 and 1997 in New York City (Phillips 2000). In spite of the fact that every JO is by definition charged with a felony, the severity class of the offense was still a strong predictor of ROR. Juveniles charged with a C felony were much more likely to be released than those charged with A or B felonies. Criminal history was also among the more important factors affecting ROR for JOs. Neither of these studies analyzed factors affecting bail amounts.

Most recently, analyses of the ROR decision and bail amount for all cases arraigned in New York City during the first three months of 2001 were presented in the report on the pilot project that comprised the first phase of the present study. In every borough (except Staten Island, which was not included in the research) charge severity and the defendant’s criminal history were strongly related to ROR. Charge severity also accounted for nearly all of the explained variance in bail amount, but the model explained a mere 14% of the variance, leaving most of that decision unexplained (Phillips 2002).

The influence of community ties was found to be spotty at best in all the studies we examined. The success of the Manhattan Bail Project in increasing ROR rates in New York City without increasing failure to appear led to the establishment throughout the country of pretrial services agencies with the function of providing information to judges on defendants’ community ties (Goldkamp 1985; Clark and Henry 1997). However, as observed in one assessment of this trend, simply supplying judges with more reliable information about the backgrounds and community ties of defendants provided no guarantee that they would use it (Fleming et al. 1980, p. 973). Use of ROR did increase, but, in the words of Goldkamp and Gottfredson, “it is not clear that community ties ever became an important factor in judges’ decisions” (Goldkamp and Gottfredson 1985, p. 22). Examples of studies that found little or no connection between community ties and either ROR or bail amount in jurisdictions around (and outside) the U.S. include those by Albonetti et al. (1989), Barnes et al. (1989), Bock and Frazier (1977), Bynum (1982), Dhami (2002), and Goldkamp and Gottfredson (1979).

On the other hand, some early researchers found the use of community ties in release and bail decisions to be relatively strong in New York City, where the community-ties measure was the CJA recommendation (or its precursor). Lazarsfeld (1974) found that the ROR rate was more than double, controlling for charge severity, when defendants were recommended by PTSA (the pretrial services agency that became CJA in 1977). The ROR rate for recommended defendants charged with an A or B felony was 19%, compared to 5% without a PTSA recommendation. Lazarsfeld concluded from this and similar findings for other levels of severity that “judges to a considerable extent follow the advice of the agency” (p. 3). This raises intriguing questions

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of interpretation, as another analyst might focus instead on the large majority of serious felony offenders who were recommended for, but not granted, ROR. Likewise, the author of a book surveying a wide range of pretrial release studies cited CJA data from 1978 showing that 58% of recommended defendants were ROR’d compared to 40% for those who were not recommended; this author concluded that “even though judges used additional information in the bail release decision, they rely heavily on the assessment of community ties.” Here again, a different researcher might consider a change of 18 percentage points — representing the impact of the recommendation — to be small, especially when compared to the impact of charge severity. The author did offer the following qualification: “However, it should be noted that even in New York City the CJA recommendations are frequently disregarded by judges. This is still considered a problem by the agency” (Eskridge 1983, p. 86).

Community ties may have declined in importance after the passage of the Bail Reform Act of 1984, which allowed pretrial detention in federal courts for the first time on the basis of danger to the community. This was the conclusion of a study of federal cases in California that compared the periods immediately before and after the law went into effect (Barnes et al. 1989, p. 273). In the 1960s, the ROR recommendation was found to affect the bail decision in New York City, but not as much as charge and prior record (Suffet 1966). Just prior to the 1984 law Nagel found the CJA recommendation to be significant for ROR (and for the setting of a cash alternative), but not for bail amount (Nagel 1983). The CJA study of 1989 cases found a significant but weak association between the recommendation and ROR, leading the author to conclude that “a defendant’s community ties were of little bearing” to the decision (Lee 1995, p.

C2). Other than the CJA study of Juvenile Offenders (which also found community ties factors to be overshadowed by charge and criminal history) no further research has been done on the topic in New York City — or elsewhere within the United States, as far as we can determine — until now.

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Part 3: Cross-Borough Analysis

E. Methodology CJA project staff used data collection forms to record information during arraignments, sitting next to the judge at the bench whenever possible. Observation sessions lasted from one to several hours, several times a week, at various times of day and on various days of the week (excluding weekends). All cases arraigned during an observation period for defendants who had been detained at arrest were included in the sample, with the exception of cases disposed at arraignment. A total of 15 judges in Brooklyn and 17 in Manhattan were included in the research; this constituted most of the regularly assigned arraignment judges in each borough. The number of cases for each judge varied from 1 to 195 in Brooklyn, and from 13 to 147 in Manhattan. A more detailed description of observation data collection procedures is presented in each of the separate borough reports (Parts 1 and 2), along with a sample data collection form. The reader is also referred to Parts 1 and 2 for descriptive statistics showing the distributions in the sample of the observation variables and characteristics of the defendants and cases.

The data file for the research sample contained 1,000 cases in Manhattan and 999 cases in Brooklyn arraigned between September 2002 and March 2003. Because of missing data, the number of cases available for the analyses was somewhat smaller, and it varied depending on the variables used in any particular analysis.

The outcomes of primary interest in this research were the judge’s release decision and the amount of bail set. Because the prosecutor’s bail request was found to have a strong influence on both aspects of the arraignment decision, the prosecutor’s request itself also became a focus of analysis in this final report. In the previous analyses the prosecutor’s request was considered only as an independent variable, but here we treat it in separate analyses as a dependent variable as well. Both the judge’s decision and the prosecutor’s request were split into two components, ROR and bail amount, in order to determine if different factors were important for each.

This resulted in four dependent variables: (1) ROR (whether or not the judge ordered release on recognizance; (2) bail amount (dollar amount of bail set); (3) prosecutor’s consent to ROR (whether or not the prosecutor consented to ROR); (4) prosecutor’s bail request (dollar amount of bail requested by the prosecutor).

Over 175 independent variables were tested in the analyses for the separate borough reports. These included about 50 criminal history, demographic, and arrest variables from the CJA database, along with arraignment charge information from the court calendars. More than 125 additional variables represented data collected during observations, consisting primarily of the prosecutors’ and defense attorneys’ bail recommendations and their supporting arguments. (For a complete list of all independent variables tested in the separate borough analyses, see either Part 1 or Part 2). Only the most fruitful variables were retained for testing in the current analyses; these are listed in Appendix A. The prosecutor’s bail request is one of the independent variables in the judicial decision analyses.

The statistical procedure used in all of the analyses was multivariate regression, but the differing nature of the outcome variables required that different types of regression procedures be used for the two aspects of the release/bail decision and the prosecutor’s request. For the ROR analyses, logistic regression was used as the method most appropriate when the dependent variable is a dichotomy. For the bail amount analyses, Ordinary Least Squares (OLS) regression was used as the method most appropriate when the dependent variable is a continuous integerlevel variable (the dollar amount of bail set).

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Part 3: Cross-Borough Analysis

Both regression procedures began with an examination of the bivariate correlations between the dependent variable and all of the relevant independent variables. Variables with a statistically significant correlation with the dependent variable at the level of .1 or stronger were selected for testing in the multivariate analysis. When two independent variables were highly correlated with each other, only one was selected for testing in the regression model.1 In the next two sections, we present the results first for the ROR decision (II), then for bail amount (III). Following the analyses of the release and bail amount decisions, we present analyses of the prosecutors’ bail requests (IV), again first presenting the results for ROR (the prosecutor’s consent to ROR) and then for bail amount (amount requested). One additional analytic section is included (V) in order to assess the extent of agreement among the prosecutor, the CJA recommendation, and the judge’s decision. We conclude with a brief discussion of the findings (VI).

1

When variables are too highly correlated with each other, entering them together in the same regression procedure introduces distortion in the results, a recognized problem in statistics known as multicollinearity. A correlation of .4 or higher was used in this research as the criterion for not entering two independent variables in the same model.

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Part 3: Cross-Borough Analysis

II. ROR DECISIONS A. Bivariate Relationships Between ROR and Selected Factors 1. ROR by Charge Severity, Separately by Borough ROR rates were somewhat lower in Brooklyn than in Manhattan, and this was true for both felony and non-felony cases. As shown in Figure 1, Brooklyn ROR rates were 10 percentage points lower for non-felony cases (67% compared to 77%) and 6 percentage points lower for felony cases (36% compared to 42%) than in Manhattan.

However, the difference in ROR by charge severity was much greater than the borough differences. The ROR rate for non-felony cases was more than 30 percentage points higher than the rate for felony cases in both boroughs (67% and 36% respectively in Brooklyn; 77% and 42% respectively in Manhattan). This suggests that charge severity was a major consideration in the ROR decision regardless of the borough of prosecution.

Because Brooklyn had a smaller proportion of felony cases than Manhattan (34% and 49%, respectively; not shown), the overall difference in ROR rates between the two boroughs (56% in Brooklyn compared to 60% in Manhattan) appears smaller than it would be if case severity were more equally distributed. Even accounting for this, the borough effect on ROR rates was not great compared to the stronger effect of charge severity.

Figure 1 ROR Rate by Charge Severity in Brooklyn and Manhattan

100% 90%

70%

Brooklyn

77%

80%

Manhattan

67%

ROR Rate

60%

60%

56%

50% 42%

40%

36%

30% 20% 10% 0%

Non-Felony Brooklyn Manhattan

N=657 N=511

Felony

All Cases

N=342 N=488

N=999 N=999

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Part 3: Cross-Borough Analysis

2. ROR by Judge, Separately by Borough and Charge Severity We also found large differences in the ROR rates for individual judges, within each level of charge severity. As shown in Figure 2, there was a considerable gap between the judges with the lowest and the highest ROR rates for both felonies and non-felonies (judges with fewer than 10 cases were excluded from this analysis). For non-felony cases, ROR rates in Brooklyn varied from 47% for the judge with the lowest rate to 90% for the judge with the highest rate, a difference of over 40 percentage points. In Manhattan the range for non-felony cases was nearly 40 percentage points, from 61% to 100%. For felony cases, the range from lowest to highest was over 30 percentage points in Brooklyn (19% to 53%) and about the same in Manhattan (21% to 54%).

The pattern of judicial variability was thus quite similar in Brooklyn and Manhattan: this pattern was characterized by a large range in ROR rates for different judges for cases of the same severity level; and the highest ROR rates for felony cases were comparable to the lowest ROR rates for non-felony cases. (As the number of cases decided by each judge was small, especially within each level of severity, these ROR rates may not be reliable.)

Figure 2 Range of ROR Rates for Judges in Brooklyn and Manhattan Separately for Non-felony and Felony Cases Felony Cases

Non-felony Cases

90%

Manhattan

47%

Low Judge

Brooklyn Manhattan

Brooklyn

61%

N=17 N=18

ROR Rate

ROR Rate

100%

100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

53% 54%

19% 21%

Low Judge

High Judge

N=10 N=10

N=16 N=14

High Judge

N=19 N=13

Note: Judges with fewer than 10 cases upon which to base an ROR rate were excluded from this analysis.

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Part 3: Cross-Borough Analysis

3. ROR by Prosecutor’s Bail Request, Separately by Borough Although the bivariate analyses strongly suggested that charge severity and the identity of the judge were important factors in determining whether a defendant would be released on recognizance, the multivariate analyses reported in Parts 1 and 2 revealed that the prosecutor’s bail request overshadowed them both. The bivariate effect of the prosecutor’s request on ROR rates is shown in Figure 3.

Almost invariably, ROR was granted if the prosecutor consented to it — in every case in Manhattan (210) and in 97% of such cases in Brooklyn (171 out of 176). ROR was routinely granted when the prosecutor consented even if the charge was a felony. (The prosecutor’s consent to ROR for a felony defendant was unusual, but not unheard of, in either borough: there were 26 such cases in Brooklyn and 37 in Manhattan.) One Brooklyn judge was responsible for three out of the five instances in which ROR was not granted in spite of prosecutor consent, thus illustrating the role played by judicial variability in the face of even the strongest factors affecting ROR. When the prosecutor did not consent to release, the dollar amount of bail requested also affected likelihood of ROR. As the amount of bail requested by the prosecutor rose, ROR rates declined. A large majority of defendants were released when the bail request was under $750: 76% in Brooklyn and 85% in Manhattan. Just over half in both boroughs were released when the bail request was between $750 and $2,499. For the most part, ROR rates declined with each increase in bail requested, dropping all the way to zero when the bail request rose above $50,000.

(Requests for remand without bail were included with amounts greater than $50,000.)

Slightly higher ROR rates for Manhattan, already observed in Figures 1 and 2, were also found at every level of prosecutor requests except the very highest. For bail requests above $5,000 there was almost no difference in ROR between boroughs; at $10,000 and up, the ROR rate was identically low or zero in both boroughs.

Figure 3 ROR Rate by Prosecutor's Bail Request in Brooklyn and Manhattan 97% 100%

Prosecutor's Bail Request

Consent to ROR 76%

under $750 51%

$750-$2499 34%

$2500-$4999

56%

Brooklyn Manhattan

14% 14%

$10,000-$49,999 $50,000+

58%

38% 40%

$5000-$9999

85%

0 0 0%

20%

40%

60%

ROR Rate

- 13 -

80%

100%

N= N=

176 210

N= N=

75 114

N= N=

262 212

N= N=

85 57

N= N=

97 178

N= N=

111 132

N= N=

36 27

Part 3: Cross-Borough Analysis

B. Multivariate Analyses of the Factors Affecting ROR 1. Overview of Previously Reported Findings The prosecutor’s bail request was the strongest statistical predictor of ROR in multivariate models presented in earlier reports from this research (Parts 1 and 2). The models controlled for the simultaneous effects of charge, criminal history, demographics, judicial variability, the CJA recommendation and community ties factors. In this, as well as in other respects, the research showed that factors influencing the ROR decision were very similar in Brooklyn and Manhattan.

In both boroughs, the only other factor with a strong effect on the ROR decision was the defendant’s criminal history. Charge variables had a statistically significant effect on the ROR decision in both boroughs — though the specific variables differed — but their effects were weak. High bivariate correlations between the prosecutor’s bail request and charge severity indicated that prosecutors relied heavily on offense characteristics, especially the severity of the charge. Thus any charge variables that were significant in the multivariate models indicated an independent effect in addition to their effect as a basis of the prosecutor’s request.

The CJA recommendation, or some of its component elements, had a small but significant effect on ROR decisions in both boroughs. This suggested that judges were giving some weight to defendants’ community ties, if not to the recommendation itself, in deciding on ROR. Demographic variables in general were not significant, with the exception of gender in Brooklyn, where females had better chances for ROR than did males.

Judicial variability was also a significant factor in both boroughs, although the effect was not nearly as strong in the sample as a whole as one might expect from the bivariate relationships. Some of the judicial variability was accounted for by other variables, such as criminal history. In addition, the judges with unusually high or low ROR rates were those with small numbers of cases in the sample, which diminished the statistical importance of judicial variability in the models. Finally, judges were not necessarily consistent across different levels of severity, and a few even had opposite tendencies depending on severity level (for example a high ROR rate for non-felony cases and a low rate for felony cases). Opposite tendencies for cases of different severities cancelled each other out in statistical models combining cases of all severity levels.

New statistical models of the ROR decision are presented here in order to untangle the effects of the prosecutor’s bail request from the effects of other variables, particularly charge severity and criminal history; to examine the effects of judicial variability separately for nonfelony and for felony cases; and to compare these effects in Brooklyn and Manhattan.

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Part 3: Cross-Borough Analysis

2. Models Predicting ROR,Without and With the Prosecutor’s Bail Request The judicial decision models presented here differ from those in earlier reports in several key respects. First, two versions of each model are presented: a version without the prosecutor’s bail request, and one with the prosecutor’s request. Because of the finding that judicial variability operated differently depending on severity level, each model was also developed separately for misdemeanor and felony cases. And because the objective was to compare models, consistency in assessing the impact of the same variables in different models took precedence over finding the variable that produced the most powerful results.2 Finally, the models presented here omitted a large number of variables that encoded arguments made by the prosecution and the defense in support of their bail or release requests.

These were tested in the earlier analyses and some were significant in the models, but their interpretation was problematic. In Brooklyn, the defense arguments were almost always associated with outcomes that went against the defendant, a finding that suggested that defense attorneys were most likely to offer any argument at all when their client’s release was most in doubt — not that the arguments themselves actually influenced the judge to detain defendants. The prosecution arguments, on the other hand, may have exerted some influence but their impact was difficult to disentangle from the effect of the bail request and of criminal history and charge variables that captured much of the same information. For all these reasons, the new models developed for this analysis included only the prosecutor’s bail request from all the information collected during courtroom observations. The resulting models lost very little if any of their explanatory power, and gained much in clarity of interpretation.

For guidance in interpreting the statistical measures given in the logistic regression models, see the box on the next page. The models are presented in tables on the following two pages.

Table 1 presents eight statistical models of the ROR decision. Models BM-0 and BM-1 present the factors that affected ROR in Brooklyn for misdemeanor cases, while BF-0 and BF-1 provide the same for felony cases. The first in each pair is a model without the prosecutor’s bail request; the second shows the results when the prosecutor’s bail request was added to the analysis. Comparable Manhattan models for misdemeanor (MM-0 and MM-1) and felony (MF-0 and MF-1) cases are presented in the continuation of Table 1.

A comparison of the Nagelkerke R2 statistics for the first and second models in each pair shows a large increase in the proportion of variance explained by the model when the prosecutor’s bail request was added. For misdemeanor cases in Brooklyn, 48% of the variance was explained without the prosecutor’s request (BM-0); this rose to 65% when the request was added (BM-1). For Brooklyn felony cases, the proportion of explained variance rose from 41% (BF-0) to 60% (BF-1) by adding the prosecutor’s request.

2

An example is the CJA recommendation, which was significant in the ROR models for Brooklyn misdemeanor cases. The comparable Manhattan models were slightly more powerful when the presence of a telephone in the defendant’s residence was entered in the model instead of CJA recommendation (R2 rose from .47 to .48). In earlier work, where the objective was to identify factors that explained the highest proportion of the variance, the variable that produced the most powerful model was selected even if the difference was slight. In the present analysis, we are also interested in comparing the impact of the same factors in Brooklyn and Manhattan, and thus in this example the CJA recommendation variable was selected for both models. Such substitutions were made only when both variables under consideration were significant, and the difference in the proportion of variance explained was trivial.

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Part 3: Cross-Borough Analysis

Statistical Measures Used in Logistic Regression Models Odds ratio: a measure of the magnitude of the effect of the independent variable on the dependent variable, controlling for all other variables in the model; greater than 1.0 indicates an increase in the odds of the predicted event occurring; less than 1.0 indicates a decrease in odds. To simplify interpretation, odds ratios less than 1.0 are given inversely in the text (1 divided by the odds ratio) and expressed as the odds against the occurrence of the predicted event. Example: an odds ratio of 2.6 for the CJA recommendation means that a person’s odds for ROR are 2.6 times greater with a positive recommendation. Example 2: an odds ratio of .58 for a prior felony conviction means that a person’s odds against ROR are 1.7 times greater with a prior felony conviction (1 divided by .58=1.7).

Standardized beta (β): a measure of the relative importance and direction of the effect of each independent variable, controlling for all other variables in the model; varies from −1 to +1. Values close to zero indicate a weak effect, close to 1 (negative or positive) indicate a strong effect. The sign indicates the direction of the relationship. Example: a standardized beta of –.55 for the prosecutor’s bail request means that there is a strong, negative relationship between the amount of bail requested and the likelihood of ROR. Nagelkerke R2: the proportion of variance in the outcome that is explained jointly by all of the independent variables in the model, ranging from zero to 1 (100%). Example: R 2 = .48 means that 48% of the variance in outcomes can be explained by the variables in the model (leaving 52% of the variance unaccounted for).

Statistical significance: a measure of the probability that the effect of the variable indicated by the standardized beta could be the result of chance alone. The level of significance is indicated by asterisks following the β, from none (not significant; too high a probability that the effect was due to chance) to *** (significant; the lowest probability that the effect was due to chance).

In Manhattan the results were similar but the prosecutor’s request added a little less to the explained variance than in Brooklyn. For misdemeanor cases, 47% of the variance was explained without (MM-0) and 61% with the prosecutor’s request (MM-1). For Manhattan felony cases, the model was quite strong even without the prosecutor’s request, but it still increased the proportion of explained variance from 57% (MF-0) to 66% (MF-1).

The prosecutor’s bail request was by far the strongest predictor of ROR in every model in which it was entered, as indicated by the size of the standardized beta for that variable relative to the betas for other variables in the model.

Without the prosecutor’s bail request, charge severity was a significant predictor of the ROR decision in all models even though misdemeanor and felony cases were analyzed separately. Defendants charged with a Class-B misdemeanor were more likely to be released than those charged with a Class-A misdemeanor, and the same was true for the less severe compared to the more severe classes of felonies. When misdemeanor and felony cases were analyzed together (the model is included in Appendix B), the large difference in ROR rates between misdemeanors and felonies caused charge severity to be the strongest predictor in the absence of the prosecutor’s request. The importance of distinctions in charge severity even within misdemeanor and felony offenses was common to both Brooklyn and Manhattan. This factor was not significant in any model that included the prosecutor’s request, indicating that the prosecutor’s request itself was largely based on charge severity.

(Text continues on page 19.)

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Part 3: Cross-Borough Analysis

Table 1 Logistic Regression Models of ROR For Misdemeanor and Felony Cases Without And With Prosecutor’s Bail Request BROOKLYN

Independent Variables Prosecutor’s bail request (0=consent to ROR; 1=below 750; 2=750-2499; 3=2500+) Number of prior misdemeanor convictions (0=0; 1=1; 2=2-3; 3=4-9; 4=10-19; 5=20-29; 6=30+) CJA recommended defendant for ROR (0=no, 1=yes,verified or qualified) Judge #9, #10, #14, or #15 (0=no, 1=yes) Number of open cases (0, 1, 2, 3+) Severity of the arrest charge (1=unclassified misdemeanor; 2=B misdemeanor; 3=A misdemeanor) Arrest charge type = theft intangible (0=no, 1=yes) Judge #2, #4, #8, #11, or #12 (0=no, 1=yes) Victim was known to defendant (0=no, 1=yes) Defendant had NYC area address (0=no, 1=yes) Arrest charge type = harm to persons and property (0=no, 1=yes)

Independent Variables Prosecutor’s bail request (0=consent to ROR; 1= less than 750; 2=750-2499; 3=2500-4999; 4=5000-9999; 5=10,000-49,999; 6=50,000+; 7=remand) First arrest (0=no, 1=yes) Arraignment charge type = weapon (0=no, 1=yes) Prior felony conviction (0=no, 1=yes) Severity of the arrest charge (1=E felony to 5= A felony) Weapon mentioned in court (0=no, 1=yes) Judge #6, #10, #11, or #14 (0=no, 1=yes) Number of felony arrest charges (0 to 4) Employed, in school, or in training full time (0=no, 1=yes)

MODEL BM-0 MISDEMEANOR CASES Without Bail Request N=549 Odds Ratio Standardized β —

—

MODEL BM-1 MISDEMEANOR CASES With Bail Request N=447 Odds Ratio Standardized β −.55***

.22

.43

−.67***

.54

−.30***

2.61

.27***

2.75

.15***

2.89 .51

.27** −.25***

4.19 .59

.22*** −.12**

—

—

.81

−.19*

.26

−.14*

.17

.55 —

−.13* —

— 2.51

— .17**

−.11*

—

—

7.37

.13*

—

—

.17

−.10*

Nagelkerke R2 = .48

Nagelkerke R2 = .65

MODEL BF-0 FELONY CASES Without Bail Request N=293 Odds Ratio Standardized β

MODEL BF-1 FELONY CASES With Bail Request N=278 Odds Ratio Standardized β

—

—

.37

−.64*** .38***

5.88

.50***

9.09

.05

−.39***

.13

.58

−.35**

—

—

.72

−.33**

—

—

.30 2.55 —

−.26* .20** —

— 4.30 .63

— .22*** −.15*

—

2.23

— 2

Nagelkerke R = .41 ***p ≤ .001, ** p ≤ .01, * p ≤ .05

- 17 -

−.18*

.17* 2

Nagelkerke R = .60

Part 3: Cross-Borough Analysis

Table 1 (continued) Logistic Regression Models of ROR For Misdemeanor and Felony Cases Without and With Prosecutor’s Bail Request MANHATTAN

Independent Variables Prosecutor’s bail request (0=consent to ROR; 1=below 750; 2=750-2499; 3=2500+) Number of prior misdemeanor convictions (0=0; 1=1; 2=2-3; 3=4-9; 4=10-19; 5=20-29; 6=30+) Severity of the arraignment charge (1=unclassified misdemeanor; 2=B misdemeanor; 3=A misdemeanor) Arrest charge offense type = theft intangible (0=no, 1=yes) On parole (0=no, 1=yes) CJA recommended defendant for ROR (0=no, 1=yes, including qualified) Age (1=16-18; 2=19-28; 3=29-38; 4=39-48; 5=49-58; 6=59+) Number of arrest charges (1, 2, 3, 4+) Judge #2, #7, #11, #13, or #14 (0=no, 1=yes) Arrest charge offense type = property crime (0=no, 1=yes)

MODEL MM-0 MISDEMEANOR CASES Without Bail Request N=417 Odds Ratio Standardized β —

.17

−.63***

.49

−.56***

.59

−.27***

.24

−.46**

—

—

.24*

—

—

—

6.35 .23

−.22**

.20

−.15**

2.23

.22**

2.22

.17*

.17*

—

1.35 .70 .48 .42

—

−.16* −.15*

— .36

— −.16**

−.12*

.22

−.16**

2

Independent Variables Prosecutor’s bail request (0=consent to ROR; 1= less than 750; 2=750-2499; 3=2500-4999; 4=5000-9999; 5=10,000-49,999; 6=50,000+; 7=remand) Defendant was disrespectful (0=no, 1=yes) First arrest (0=no, 1=yes) Gun mentioned in court (0=no, 1=yes) More than one felony arraignment charge (0=no, 1=yes) Prior prison sentence (0=no, 1=yes) CJA recommended defendant for ROR (0=no, 1=qualified, 2=recommended) Severity of the arraignment charge (1=E felony to 5=A felony) Arraignment charge type = theft intangible (0=no, 1=yes) White (0=no, 1=yes) Judge #12, #14, or #16 (0=no, 1=yes) Female (0=no, 1=yes)

MODEL MM-1 MISDEMEANOR CASES With Bail Request N=384 Odds Ratio Standardized β

Nagelkerke R = .47

Nagelkerke R2 = .61

MODEL MF-0 FELONY CASES Without Bail Request N=429 Odds Ratio Standardized β

MODEL MF-1 FELONY CASES With Bail Request N=415 Odds Ratio Standardized β

—

—

.26

−.65***

.0002 12.50 .0006

−.41 .39*** −.38

— 14.29 —

— .38*** —

.29

−.21***

.34

−.17**

.23

−.19**

1.78

.19**

1.52

−.17***

—

—

5.21

.17**

—

—

4.11 4.38 2.14

.16** .11* .09*

2.98 4.70 —

Nagelkerke R2 = .57 ***p ≤ .001, ** p ≤ .01, * p ≤ .05

- 18 -

— 1.81

— .17**

.11* .10* —

Nagelkerke R2 = .66

Part 3: Cross-Borough Analysis

(Text continued from page16)

At least one criminal history measure was among the strongest predictors in every ROR model, with and without the prosecutor’s request. In the absence of the bail request, the number of prior misdemeanor convictions was the strongest predictor of ROR for misdemeanors in both boroughs. For felony cases, whether it was the defendant’s first arrest was the strongest significant predictor in the model without the bail request. In addition, the number of open cases and whether the defendant was on parole were significant predictors for misdemeanor cases (in Brooklyn and Manhattan respectively); and a prior felony conviction and prior prison sentence were significant for felony cases (in Brooklyn and Manhattan respectively).

Criminal history variables remained fairly strong predictors of ROR even when the prosecutor’s request was included in the model. The weaker of the two criminal history variables in each felony model was no longer significant when the prosecutor’s request was added, but for misdemeanor cases, the importance of criminal history was hardly affected. This suggests that judges gave additional weight to these factors, separately from the prosecutor’s request. As will be seen later, prosecutors were also influenced by criminal history, but the measures that affected the prosecutors’ requests most strongly were different from the ones that were significant in the judicial decision models.

The CJA recommendation was a significant predictor of ROR in both boroughs, especially for misdemeanor cases. After the prosecutor’s request and criminal history, this was the next most important factor in the ROR decision for misdemeanors. A positive CJA recommendation in a misdemeanor case more than doubled the odds for ROR regardless of whether the prosecutor’s request was in the model. For felony cases a positive CJA recommendation was less important, and was not significant at all for felony cases in Brooklyn.

Judicial variability was also significant in every model.3 The odds for ROR in Brooklyn were almost three times better for misdemeanor defendants who were arraigned by Judge #9, #10, #14, or #15. Felony defendants in Brooklyn had better odds for ROR if Judge #6, #10, #11, or #14 was on the bench. Thus two judges (#10 and #14) were more likely to ROR both misdemeanor and felony defendants, but there were four other judges who were more likely to ROR misdemeanor or felony defendants, but not both.

In Manhattan one group of judges had a significant negative effect on ROR in misdemeanor cases (Judges #2, #7, #11, #13, and #14) and another group had a significant positive effect on ROR for felony cases (Judges #12, #14, and #16). One judge, #14, was in both groups; this judge had the opposite effect on ROR for misdemeanor cases compared to felony cases.

(Note: Judge #14 in Brooklyn and Judge #14 in Manhattan are not the same person; there was no overlap in the judiciary for the two boroughs.)

Controlling for the prosecutor’s bail request did not generally diminish the role played by judicial variability in either borough, and actually increased its importance slightly in some mod3

Various ways of measuring this were tested, including entering each judge individually in the analysis, and constructing a “judicial orientation” measure. Entering each judge individually did not produce significant results because of the small numbers of cases for many judges. The judicial orientation measure solved this problem by combining judges with similar ROR rates into groups of “high,” “medium,” and “low” orientation. The models presented in this report used a dummy variable for judges with a high or low orientation, compared to all others. For simplicity and clarity of presentation, each orientation group is identified only by listing the judges it comprised. A detailed description of the judicial orientation measure is contained in Parts 1 and 2, Appendix B.

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Part 3: Cross-Borough Analysis

els. The only exception to this statement occurred in the model for misdemeanor cases in Brooklyn. In the model without the prosecutor’s bail request, 5 judges were significantly less likely to ROR defendants, but this effect was no longer significant once the prosecutor’s bail request was controlled for.

Community ties factors, apart from the CJA recommendation, played a small but statistically significant role in the ROR decision in Brooklyn after controlling for the prosecutor’s request. In Brooklyn, having a New York City area address greatly increased a misdemeanor offender’s chances for ROR, and being employed (or in school or in a training program) increased a felony offender’s chances for ROR. In Manhattan, community ties other than the CJA recommendation were not significant when the effects of the prosecutor’s request were accounted for.

Several demographic variables affected ROR in Manhattan. Age had a small effect for misdemeanor cases, with older defendants slightly more likely to be released; this effect disappeared when the prosecutor’s request was added to the model. For felony defendants, being white increased the chances for ROR, compared to defendants from all other ethnic groups. The effect of ethnicity diminished but did not disappear when the prosecutor’s request was added.

Gender was also significant in Manhattan for felony cases (females had a better chance for ROR) but this was no longer a significant factor after accounting for the effects of the prosecutor’s request. This suggests that Manhattan prosecutors may have been more lenient in their requests for female defendants. As will be seen, this suggestion was supported by the analyses of prosecutors’ bail requests later in this report.

Finally, the defendant’s demeanor — characterized as disrespectful or not — had a powerful effect on ROR for felony cases in Manhattan, even though there were too few cases for this variable to attain statistical significance. Defendants were coded as disrespectful if they behaved in a disruptive manner, which usually took the form of an outburst or talking back to the judge.

Anything that elicited a reprimand from the judge or court officer was also coded disrespectful.

By these stringent criteria, there were few disrespectful defendants. Of the 10 felony defendants in Manhattan who were disrespectful, not one was released. Judges did not seem to view disrespect from misdemeanor defendants with the same degree of concern, as a quarter to a third of them were released on recognizance.

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Part 3: Cross-Borough Analysis

III. BAIL AMOUNT DECISIONS A. Bivariate Relationships Between Bail Amount and Selected Factors 1. Bail Amount by Charge Severity, Separately by Borough Figure 4 presents median bail amounts by charge severity, separately for Brooklyn and Manhattan.4 The median is the amount above and below which there is an equal number of cases. This is a better measure than the mean (average) by which to compare bail amounts for groups of cases because one exceptionally high bail amount can result in a mean that is much higher than the amount set for most cases. The median amount of bail set in Brooklyn overall ($1,500) was $1,000 lower than in Manhattan ($2,500), but that merely reflects the fact that there was a larger proportion of felony cases in Manhattan. Within each level of charge severity, bail amounts were higher in Brooklyn. For non-felony cases the median bail in Brooklyn was $500 higher than in Manhattan, and for felony cases the median in Brooklyn was $1,500 higher than in Manhattan.

The borough differences were small compared to the difference made by charge severity.

The median in Brooklyn for felony cases ($5,000) was $4,000 greater than for non-felonies ($1,000). In Manhattan, the median for felony bail ($3,500) was $3,000 larger than for nonfelonies ($500). This suggests that charge severity was a major consideration in setting bail amounts, just as it was found to be for the ROR decision.

Figure 4 Median Bail Amount by Charge Severity in Brooklyn and Manhattan $6,000 Median Bail Amount

5000 $5,000 $4,000

3500

$3,000

2500

$2,000

Brooklyn Manhattan

1500 1000

$1,000

500

$0 Non-felony

Brooklyn Manhattan

N=209 N=101

Felony

All Cases

N=216 N=275

N=425 N=376

4

For all of the bail analyses, if bond was set in two amounts (a bond amount and a lower cash alternative), the lower amount was used as the basis for the calculation. Bail amounts on multiple dockets were summed. If the only bail set on the case was one dollar, the case was excluded from the analysis because a one-dollar bail indicates that bail has been set, or the defendant was remanded, on another case. There were 8 cases in Brooklyn and 13 cases in Manhattan in which bail was one dollar.

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Part 3: Cross-Borough Analysis

2. Bail Amount by Judge, Separately by Borough and Charge Severity Figure 5 displays the range of median bail amounts set by individual judges in each borough. The bars represent the judge (or judges) with the lowest and highest medians within each level of severity. In order to produce reliable results, judges with fewer than 10 cases upon which to base a median amount were excluded. This limited the data given in Figure 5 to fewer than half of the judges for all but the Manhattan felony analyses. It is likely that with a larger proportion of judges represented, the range from lowest to highest would be greater.

For non-felony cases in Brooklyn, the highest median ($1,500) was double the lowest ($750, which was the median amount for two judges). In Manhattan there was apparently very little variation from one judge to another, as the range was only from $500 to $750. However, only three Manhattan judges had 10 or more non-felony cases in which bail was set (compared to six judges in Brooklyn), which probably obscures the true extent of variation.

For felony cases, the range was much greater in both boroughs. In Brooklyn, the lowest median was $3,500 for felony cases (based on 7 judges with 10 or more cases); in Manhattan, the lowest was $2,000 (based on 12 judges). In both boroughs, the highest median was $10,000 (the median for two judges in Brooklyn).

Figure 5 Range of Median Bail Amounts Set by Judges in Brooklyn and Manhattan Separately for Non-felony and Felony Cases Non-felony Cases

Felony Cases

$5,000 $4,000

Brooklyn

$3,000

Manhattan

$2,000 $1,000

1500 750

500

750

$0

Brooklyn Manhattan

Low Judge

High Judge

N=33 N=15

N=21 N=19

Median Bail Amount

Median Bail Amount

10000 10000

$10,000 $9,000 $8,000 $7,000 $6,000 $5,000 $4,000 $3,000 $2,000 $1,000 $0

3500 2000

Low High Judge Judge N=12 N=15

N=55 N=11

Note: N is the total number of cases for all judges with the lowest or highest median, excluding judges with 10 or fewer cases in the analysis. In Brooklyn 2 judges tied for the lowest median for non-felony cases and 2 judges tied for the highest median for felony cases.

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Part 3: Cross-Borough Analysis

3. Bail Amount by Prosecutor’s Bail Request, Separately by Borough Figure 6 displays the median amount of bail set within categories of the prosecutor’s bail request. There was little difference between Brooklyn and Manhattan for cases in which the prosecutor asked for under $10,000 bail. When the prosecutor asked for very high bail, the amounts set in Brooklyn rose higher than in Manhattan, but increases in the bail request had a far more striking effect on the bail amount than did the borough of prosecution.

When the prosecutor consented to ROR, Manhattan judges always granted it; the median bail amount in Brooklyn was $500 for the few cases in which ROR was not granted. The median bail set remained at $500 for cases for which the prosecutor’s bail request was under $750. With each increase in the prosecutor’s request, the median amount of bail set rose, but it fell further and further below the range of the amount requested. For bail requests between $5,000 and $9,999, the median amount set in each borough was $2,500. At requested amounts of $50,000 or more, the median bail amount set was $38,000 in Brooklyn and $35,000 in Manhattan.

Prosecutor's Bail Request

Figure 6 Median Bail Amount by Prosecutor's Bail Request in Brooklyn and Manhattan

Consent to ROR

500 0

under $750

500 500

$750-$2499

750 750

N= N=

4 0

N= N=

17 15

N= N=

128 79

N= N=

56 25

N= N=

59 106

N= N=

94 112

38000 N= N= 35000

36 27

Brooklyn Manhattan

1000 1500

$2500-$4999

2500 2500

$5000-$9999

5000 3500

$10,000-$49,999 $50,000+ $0

$5,000

$10,000

$15,000

$20,000

$25,000

$30,000

Median Bail Amount Set

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$35,000

$40,000

$45,000

Part 3: Cross-Borough Analysis

B. Multivariate Analyses of the Factors Affecting Bail Amount 1. Overview of Previously Reported Findings In the analyses presented in Parts 1 and 2 from this research, the prosecutor’s bail request was found to be an even more dominant factor for bail amount than for ROR, especially in Brooklyn. The explanatory power of the bail amount model for the Brooklyn sample was extraordinarily high (82% of the variance explained), and almost all of it was accounted for by the prosecutor’s bail request. Not as much of the variance was explained by the model for Manhattan (66%), and more of it was explained by other factors, particularly offense characteristics.

Charge severity was not a significant factor in either borough, as it overlapped too much with the prosecutor’s bail request to remain significant once the bail request was entered in the analysis. Judicial variability was a weak, though significant factor in the all-cases models for both boroughs. In Brooklyn, the judge had the only significant impact other than the prosecutor’s bail request. Of no importance to bail amount were many factors that had an impact on the ROR decision: the defendant’s criminal history, the CJA recommendation, individual community ties measures, and demographic characteristics of defendants.

Some arguments made by the defense attorney and prosecutor were significant in these analyses, but they raised the same kinds of questions of interpretation as described earlier in regard to the ROR decision. The new models presented here omit defense requests and both attorneys’ arguments, retaining only the prosecutor’s bail request. Some of the resulting models explain a slightly smaller proportion of the variance than previously, but the findings are more easily interpreted. In addition, models without and with the prosecutor’s bail request elucidate the contribution of the bail request.

2. Models Predicting Bail Amount, Without and With the Prosecutor’s Bail Request Ordinary Least Squares regression was the statistical procedure used to analyze the amount of bail set by judges at arraignment. Table 2 on the following page presents the models of bail amount for Brooklyn and Manhattan. For guidance in interpreting the statistical measures given in the tables, see the box below.

Statistical Measures Used in Ordinary Least Squares Regression Models Unstandardized beta: the average change in the dependent variable for each unit of change in the independent variable, controlling for all other variables in the model. The sign (negative or positive) indicates the direction of change. Example: The unstandardized beta for the prosecutor’s bail request in Brooklyn (in $1,000 increments) is 390, so bail rose by $390, on average, for each additional $1,000 requested by the prosecutor.

Standardized beta (β): (same as for logistic regression) a measure of the relative importance and direction of the effect of each variable.

Adjusted R2: the proportion of variance in the outcome that is explained by the independent variables in the model, ranging from 0 to 1 (100%); the interpretation is similar to that for the Nagelkerke R2 in logistic regression.

Statistical significance: (same as for logistic regression); a measure of the probability that the results could have occurred by chance alone. Lower probabilities (indicated by more asterisks) are better. No asterisks indicate that a variable is not statistically significant.

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Table 2 Ordinary Least Squares Regression Models of Bail Amount Without and With the Prosecutor’s Bail Request BROOKLYN

Independent Variables Prosecutor’s bail request (in $1,000 increments) Severity of the arraignment charge (1=infraction; to 10= A felony) Judge #6 (0=no, 1=yes)

MODEL B-0 Without Prosecutor’s Bail Request N=425 Unstandardized Standardized β β — 7,561 22,796

MODEL B-1 With Prosecutor’s Bail Request N=395 Unstandardized Standardized β β

—

390

.86***

.29***

—

—

.13*

2 Adjusted R = .09

16,186

.09***

Adjusted R2 = .74

MANHATTAN

Independent Variables Prosecutor’s bail request (in $1,000 increments) Severity of the arraignment charge (1=infraction; to 10= A felony) Number of VFO arrest charges (1 to 4+) Gun (0=no, 1=yes) Judge #2 (0=no, 1=yes) Judge #15 (0=no, 1=yes)

MODEL M-0 Without Prosecutor’s Bail Request N=376 Unstandardized Standardized β β —

—

3,398

.28***

5,591

.19***

20,647 6,746 13,976

.16** .12* .11*

Adjusted R2 = .21

MODEL M-1 With Prosecutor’s Bail Request N=369 Unstandardized Standardized β β 136

.62***

1,932

.16***

2,719

.09*

20,949 6,111 −11,678

.17*** .10** −.09*

Adjusted R2 = .52

***p ≤ .001, ** p ≤ .01, * p ≤ .05

Table 2 presents four statistical models of the bail amount decision. Models B-0 and B-1 present the factors that affected bail amount in Brooklyn, while M-0 and M-1 provide the same for Manhattan. The first in each pair is a model without the prosecutor’s bail request; the second shows the results when the prosecutor’s bail request was added to the analysis.

A comparison of the Adjusted R2 statistics for the first and second models in each pair indicates a large increase in the proportion of variance explained by the model when the prosecutor’s bail request was added. In Brooklyn, virtually none (only 9%) of the variance could be explained without the prosecutor’s request (B-0); this rose to 74% when the request was added to the analysis (B-1). In Manhattan, the impact of the prosecutor’s request was not nearly as dramatic, though it was still strong. More of the variance could be explained without the bail request — 21% (M-0) — and the addition of the bail request did not increase the explanatory power of the model quite as much (to 52%; M-1). This is still a huge improvement in explanatory power; it seems moderate only in comparison with the extraordinary results in Brooklyn.

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Part 3: Cross-Borough Analysis

Another difference between the two boroughs was related to the overwhelming reliance on the bail request in Brooklyn. In Brooklyn, the only other factor that made a difference was the judge, and this was unaffected by whether or not the bail request was controlled for. In Manhattan, the bail request was important but not to the exclusion of everything else. Charge severity was significant independent of the bail request in Manhattan, as was the number of VFO arrest charges and the mention of a gun in the case. Some of these factors were less important when the effect of the prosecutor’s bail request was accounted for, but they all remained significant.

The notion that prosecutors relied primarily on charge severity to fashion their bail requests was dispelled by the comparisons between the models without and with the bail request. Charge severity was not an adequate substitute for the prosecutor’s bail request in either borough. An implication of the independent significance of charge severity in Manhattan, along with the bail request (M-1), is that judges there seemed to think that prosecutors did not give enough weight to severity.

One oddity in these results was the differing impact of Judge #15 in Manhattan, depending on whether the prosecutor’s bail request was taken into account. This judge had 9 felony cases in the study sample, for which the average bail amount was $30,000, compared to $10,500 for all other felony cases. Thus the coefficient for Judge #15 in Model M-0 is positive, indicating that this judge set higher bail than others, controlling for charge severity and the other variables in the model. Yet the coefficient in Model M-1 for Judge #15 is negative. Sure enough, the data show that within each level of prosecutor bail requests, the average bail set by this judge was actually lower than the average for other judges. Thus the high bail amounts set by Judge #15 are understandable in the light of the fact that prosecutors requested exceptionally high bail for these cases. Knowing the prosecutors’ assessment forces us to revise our interpretation of this judge’s impact: far from being a high-bail judge, he or she actually set bail relatively low, given the prosecutor’s request.

This brings us to an analysis of the bail request itself. In the following section, the prosecutor’s bail request is treated as the dependent variable, rather than as one of many factors with an effect on ROR or bail amount.

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Part 3: Cross-Borough Analysis

IV. PROSECUTORS’ BAIL REQUESTS A. Bail Requests by Borough The proportions of cases for which the prosecutor consented to ROR, requested bail, and requested remand were virtually identical in Brooklyn and Manhattan, even though Manhattan had more felony cases. The number and proportion of cases in each category are shown in Table 3. The prosecutors in both boroughs consented to ROR in about one in five cases, requested bail in about three out of four cases, and requested remand without bail in only one out of 100 cases. The mean bail amount requested in Brooklyn was about $500 higher, but the median was $1,000 lower, than in Manhattan. The range of bail requests in Brooklyn — $150 to $500,000 — was lower at both extremes than the range in Manhattan ($250 to $1,000,000).

Table 3 Prosecutor’s Bail Requests in Brooklyn and Manhattan Consent to ROR Brooklyn

Manhattan

175

(21%)

Bail requested* 667

(78%)

Remand requested 9

(1%)

851 (100%)

12

(1%)

948 (100%)

mean = $13,083 median = $2,000 range = $150 to $500,000

210

(22%)

726

(77%)

Total

mean = $12,551 median = $3,000 range = $250 to $1,000,000

*A case for which one dollar bail was requested was omitted from the analysis. There was one such case in Manhattan, and none in Brooklyn.

B. Multivariate Models of Prosecutors’ Consent to ROR Following the procedure used for analyzing judicial decisions, we conceptualized the prosecutor’s request as a two-stage process: first, a decision whether to consent to ROR; then, for defendants not considered appropriate for ROR, a decision as to the amount of bail to request.

(Actually, this is probably a three-step process, with a decision to request remand as the first or second step. However, there were only 9 defendants in Brooklyn and 12 in Manhattan for whom remand was requested, far too few to model statistically.)

Logistic regression models for consent to ROR are presented in Table 4, separately for Brooklyn and Manhattan.

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Part 3: Cross-Borough Analysis

Table 4 LOGISTIC REGRESSION MODELS OF THE PROSECUTOR’S CONSENT TO ROR Brooklyn (N = 790)5 Independent Variables Prior warrant (0=no, 1=yes) Severity of the arraignment charge (1=infraction, 2=violation, 3=unclassified misdemeanor, 4=B misdemeanor, 5=A misdemeanor, 6=E felony, 7=D felony,8=C felony, 9=B felony, 10= A felony) Violent felony offense (arrest charge) (0=no, 1=yes) Judge #9 (0=no, 1=yes) Number of open cases (0, 1, 2, 3+)

Odds Ratio .13

Standardized β −.62***

.63

−.46***

.30 3.50 .67

−.29*** .21*** −.15*

Nagelkerke R2 = .32

Manhattan (N = 857)6 Independent Variables Severity of the arraignment charge (1=infraction, 2=violation, 3=unclassified misdemeanor, 4=B misdemeanor, 5=A misdemeanor, 6=E felony, 7=D felony, 8=C felony, 9=B felony, 10= A felony) Prior warrant (0=no, 1=yes) Weapon mentioned in court (0=no, 1=yes) Number of open cases (0, 1, 2, 3+) Female (0=no, 1=yes)

Odds Ratio

Standardized β

.45

−.66***

.19 .06 .61 2.37

−.35*** −.29** −.19** .14***

Nagelkerke R2 = .40 ***p ≤ .001, ** p ≤ .01, * p ≤ .05 Dependent variable: Prosecutor consented to ROR, 0=no, 1=yes.

Charge severity and a warrant history had the strongest impact on the prosecutor’s consent to ROR in both boroughs, and both factors far outweighed the effect of anything else. However, the order of importance was reversed in the two boroughs: in Brooklyn, not having a prior warrant was most important to the prosecutor in consenting to ROR; in Manhattan charge severity was the most important issue.

The existence of a prior bench warrant (indicating that the defendant had failed to appear for a court date at least once in the past) increased the odds against consent to ROR by a factor of 7 (1/.13=7.7) in Brooklyn and by a factor of 5 in Manhattan (1/.19=5.3). For each increment in charge severity from infraction to Class-A felony, the odds against consent to ROR increased by about 60% in Brooklyn (1/.63=1.6) and more than doubled in Manhattan (1/.45=2.2).

Prosecutors in both boroughs also took into consideration the existence of any open cases. An open case increased the odds against consent to ROR by about 50% in Brooklyn 5

Cases with a missing value for any variable in the analysis were not included. The large number of missing cases in the Brooklyn model can be attributed primarily to cases for which the observer heard no ADA request for bail or remand, nor a consent to ROR (148 cases). Other variables with missing data for a large number of cases were the number of prior bench warrants (57 cases with missing data) and the number of open cases (37 cases with missing data).

6 Fewer cases (57) were missing the ADA bail request in Manhattan, compared to Brooklyn. The variables with the most missing cases in Manhattan were prior bench warrants (80) and number of open cases (61).

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Part 3: Cross-Borough Analysis

(1/.67=1.5) and by 60% in Manhattan (1/.61=1.6). Thus the three variables with a significant effect in both boroughs — charge severity, warrant history, and open case — are all related to the severity of the case or the defendant’s criminal history.

One additional charge-related variable was also significant for prosecutors in each borough. The specific variables were different, but each is an indicator of the violent nature of the offense. In Brooklyn, a violent felony offense arrest charge tripled the odds against consent to ROR (1/.30=3.3), whereas in Manhattan the odds were 17 times greater against consent to ROR (1/.06=16.7) when a weapon was mentioned in court. A weapon was mentioned in 57 cases in Manhattan; for only one of those did the prosecutor consent to ROR. In that case, the mitigating factors were clear: the defendant was a woman who had never been arrested before; she was charged with a misdemeanor assault using a wrench in a dispute over money, and there was no injury to the complaining witness.

Considerations related to the charge and the defendant’s criminal history thus dominated prosecutors’ consent to ROR in both boroughs — at least they dominated the part of the decision that our statistical models could account for — but there was one significant item in each model that was not related to either of these factors. In Brooklyn, the presence of Judge #9 on the bench more than tripled the odds of consent to ROR for cases of similar severity and for defendants with similar criminal records. This may be an indication that prosecutors adjusted their requests depending on the judge’s reputation, although this seems more plausible in regard to the amount of bail than for consent to ROR. In Manhattan, the only extra-legal factor that significantly affected consent to ROR was the defendant’s gender. For female defendants in Manhattan, the odds for consent to ROR were more than double the odds for males. This is particularly interesting in light of the finding reported in a previous section of this paper that gender was a significant predictor of ROR for felony defendants in Manhattan, but only when the prosecutor’s bail request was not entered in the analysis. These results together suggest that females in Manhattan charged with a felony had a better chance of ROR than males, primarily because prosecutors were more likely to consent to ROR when the defendant was female.

Finally, it is noteworthy that neither borough model was very successful in predicting prosecutorial decisions to consent to ROR. The proportion of variance explained by the models, given by the Nagelkerke R2 statistic at the bottom of each table, is 32% for Brooklyn and 40% for Manhattan. This leaves considerably more than half of the variance unaccounted for in each borough. If prosecutors relied entirely on charge and criminal history information for this decision — or on any other legal or extra-legal factors available to our analysis — the models would be more successful than they in fact were. A multitude of measures related to both the current charge and criminal history were tested, and although they did turn out to influence consent to ROR more than anything else that could be identified, they also left much unexplained.

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Part 3: Cross-Borough Analysis

C. Multivariate Models of the Amount of Bail Requested by Prosecutors The other aspect of the prosecutor’s request is the dollar amount, when bail was requested. The analysis of bail amount included only those cases for which a money bail request was made. The best results were obtained by recoding the dollar amount into six categories, from 1 = under $750 to 6 = $50,000 or more. For analytic purposes these categories could be treated as an integer-level continuous variable, and thus Ordinary Least Squares Regression was an appropriate statistical tool. The bail request models are presented in Table 5, separately for Brooklyn and Manhattan.

Table 5 ORDINARY LEAST SQUARES REGRESSION MODELS OF THE AMOUNT OF BAIL REQUESTED BY THE PROSECUTOR (Cases for which the prosecutor requested bail)

Brooklyn (N = 632)7 Independent Variables Severity of the arraignment charge (1=infraction, 2=violation, 3=unclassified misdemeanor, 4=B misdemeanor, 5=A misdemeanor, 6=E felony, 7=D felony, 8=C felony, 9=B felony, 10= A felony) Judge #15 (0=no, 1=yes) Gun mentioned in court (0=no, 1=yes) Violent felony offense (arrest charge) (0=no, 1=yes) Female (0=no, 1=yes) Prior Youthful Offender adjudication (0=no, 1=yes) Judge #5 (0=no, 1=yes)

Unstandardized β

Standardized β

.54

.67***

−.75 .62 .28 −.40 .26 .27

−.11*** .11*** .09** −.08** .06* .06*

Adjusted R2 = .58 ***p ≤ .001, ** p ≤ .01, * p ≤ .05

Manhattan (N = 682)8 Independent Variables Severity of the arraignment charge (1=infraction, 2=violation, 3=unclassified misdemeanor, 4=B misdemeanor, 5=A misdemeanor, 6=E felony, 7=D felony, 8=C felony, 9=B felony, 10= A felony) Number of VFO arraignment charges (0, 1, 2+) Number of arrest charges (1, 2, 3, 4+) First arrest (0=no, 1=yes) Number of prior felony convictions Misconduct (top charge at arraignment) (0=no, 1=yes) Obstructing justice (top charge at arraignment) (0=no, 1=yes)

Unstandardized β

Standardized β

.60

.71***

.47 .17 −.31 .01 −.30 .31

.17*** .11*** −.09** .08** −.05* .05*

Adjusted R2 = .66 ***p ≤ .001, ** p ≤ .01, * p ≤ .05 Dependent variable: Bail amount requested by prosecutor, 1 = $150 − $749; 2 = $750 − $2,499; 3 = $2,500 − 4,999; 4 = $5,000 − $9,999; 5 = $10,000 − $49,999; 6 = $50,000+.

7

Cases with a missing value for any variable in the analysis were not included. In Brooklyn, prior Youthful Offender adjudication was missing for 34 cases.

8 In Manhattan, 35 cases were missing data on open cases, first arrest, and prior felony convictions, causing them to be omitted from the analysis.

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Part 3: Cross-Borough Analysis

Two things stand out in comparison to the models for consent to ROR: first, charge severity dominated much more strongly in requesting a bail amount. There were many other significant factors in the bail request models for both boroughs, but no other single factor came close to charge severity in importance. Because the dependent variable is measured as a scale with values from 1 to 6 (each increment representing a range of bail amounts), the unstandardized betas are interpreted accordingly. For each step up in charge severity in Brooklyn, the prosecutor’s bail request rose by about half a step on the scale (.54). In Manhattan, the bail request rose by a little more than half a step (.60) for each step up in charge severity. The standardized betas, which are many times larger for charge severity than for any other variable in either model (.67 in Brooklyn and .71 in Manhattan), show the singular importance of this factor very clearly.

The second major difference between the bail request models and consent to ROR was that these models explained much more of the variance. The adjusted R2 for the Brooklyn model was .58 and for Manhattan it was .66, meaning that they explained 58% and 66%, respectively, of the variation in the amounts requested. Charge severity alone accounted for over half of the variance in each borough — 54% in Brooklyn and 59% in Manhattan (not shown) — more than was explained by the entire model in either borough when consent to ROR was the dependent variable.

Other than charge severity, there were no variables in common in the Brooklyn and Manhattan models. However, in both boroughs the other factors that had a significant impact on the amount of bail prosecutors requested were mostly related to the offense, and to a lesser extent, to criminal history. An indication that prosecutors in both boroughs were tougher on defendants perceived as violent was found in the significance of a gun mentioned in court in Brooklyn and violent felony offense charges in Brooklyn and Manhattan; both were associated with requests for higher bail amounts.

Only in Brooklyn were there significant factors that were unrelated to either offense or criminal history. Two judges had a significant impact, which again suggests that prosecutors in that borough sometimes adjusted their bail requests in accordance with expectations regarding what a particular judge would accept. Controlling for all other significant case- and defendantrelated factors, prosecutors asked Judge #15 for lower bail amounts and Judge #5 for higher bail amounts than when other judges were on the bench. (Judge #15 in Brooklyn is not to be confused with Judge #15 in Manhattan, a different judge, whose bail-setting tendencies were discussed earlier.)

Also in Brooklyn, the amount of bail requested for females was significantly lower than for males, controlling for all other factors in the analysis. This finding further complicates the effect of gender on release and bail decisions. Although the effect of gender on the bail request was statistically significant in Brooklyn, we found no significant effect of gender on ROR or bail outcomes in that borough, even when the impact of the prosecutor’s request was not included in the model. This is in contrast to the situation in Manhattan, where the prosecutors’ higher likelihood of consenting to ROR for females than for males translated into a better chance of ROR.

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Part 3: Cross-Borough Analysis

V. AGREEMENT AMONG PROSECUTOR, CJA, AND JUDGE Another angle from which to approach the question of how release and bail decisions are made is to examine the extent of agreement and disagreement among courtroom participants.

Typically, near the start of every arraignment the prosecutor is given the opportunity to make a request for bail, and the defense attorney then counters with a request for ROR or “a more reasonable bail.” All parties have before them the CJA recommendation, which the attorneys on both sides occasionally cite in support of their positions for or against ROR. After hearing the prosecutor and the defense attorney, and considering all other relevant factors, including (but not limited to) the CJA recommendation, the judge then makes a decision. In this part of the analysis we examine how often the prosecutor and the CJA recommendation were in agreement; and when they conflicted, whose side the judge took.

Defense attorneys were omitted from this analysis because they made no request in a large proportion of cases, and when they did make a request, it was invariably for ROR or for “ROR or more reasonable bail.” Defense attorneys made no request when the prosecutor had consented to ROR or when the judge ordered release before asking for input from the defense (a situation that actually resulted in a negative correlation between ROR and defense requests for ROR). For these reasons, an attempt to calculate agreement with the defense attorney would amount to little more than a comparison with the base ROR rate and would require excluding a large number of cases because of missing data.

A. Agreement on ROR

Percent of All Cases

Of the three remaining participants in the ROR decision — judge, prosecutor, and CJA — prosecutors favored ROR the least, consenting only about 20% of the time in both boroughs (Figure 7). CJA was much more likely than the prosecutor to recommend ROR: 66% of defendants in Brooklyn and 53% in Manhattan received a CJA recommendation.9 Judges in Brooklyn ordered ROR 52% of the time, a rate that was much higher than the prosecutor’s consent but lower than the CJA recommendation rate. In Manhattan judges ROR’d more defendants (59%) than CJA recommended. However, they were not necessarily the same defendants.

100%

Figure 7 Willingness to ROR: Comparing Prosecutor's Request, CJA Recommendation, and Judge's Decision Separately for Brooklyn and Manhattan

80%

66% 53%

60% 40%

20%

52%

59%

Brooklyn N=820

22%

20%

Manhattan N=902

0%

ADA consented to ROR

CJA recommended ROR

9

Judge ordered ROR

For these analyses, CJA’s highest recommendation (verified community ties) was combined with the next highest recommendation (strong but unverified community ties).

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Part 3: Cross-Borough Analysis

1. Agreement Between Prosecutor and CJA Recommendation Figure 8 shows that in about 15% of cases the defendant was recommended by CJA and the prosecutor also consented to ROR (“Agree ROR”). There was virtually no difference by borough in the percent of cases in this category.

In a larger proportion of cases, CJA did not recommend the defendant for ROR and the prosecutor did not consent to ROR. This category (“Agree no ROR”) was smaller in Brooklyn (29%) than in Manhattan (39%) because of the lower CJA recommendation rate in Manhattan.

Combining “Agree ROR” and “Agree no ROR,” overall agreement between the prosecutor and CJA was reached in 44% of Brooklyn cases, and over half of the time in Manhattan (53%).

In the remainder of cases there was disagreement between the prosecutor and the CJA recommendation. Altogether, the prosecutor disagreed with the CJA assessment 56% of the time in Brooklyn and 47% of the time in Manhattan. Most disagreements occurred when CJA recommended the defendant for ROR and the prosecutor opposed it (“Disagree, CJA recommends ROR”). This category comprised the majority of cases in Brooklyn (51%) and over a third (39%) in Manhattan. Fewer defendants had strong community ties in Manhattan, resulting in fewer cases in this category than in Brooklyn.

Finally, in a small number of cases CJA found insufficient community ties, or some other reason to withhold a recommendation,10 yet the prosecutor consented to ROR anyway (“Disagree, ADA Consents to ROR”). These cases comprised 5% of the Brooklyn sample and 8% of the Manhattan sample.

Figure 8 Agreement On ROR Between Prosecutor and CJA Recommendation 100%

5%

8%

51%

39%

Disagree (ADA consents to ROR)

39%

Disagree (CJA recommends ROR) Agree no ROR

90% 80% 70% 60% 50% 40% 30%

29%

20% 10%

Agree ROR 15%

14%

Brooklyn

Manhattan

N=821

N=902

0%

10

Defendants charged with homicide or attempted homicide, and those with active bench warrants, incomplete interviews, unavailable prior arrest records, or those held on bail-jumping charges are not eligible for an ROR recommendation. These exclusions have not changed under the new recommendation system.

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Part 3: Cross-Borough Analysis

2. Agreement Between Judge and Others Table 6 shows how judges’ decisions accorded with the prosecutor’s request and the CJA recommendation. Judges decided in favor of the prosecutor over half of the time, but they also agreed with the CJA recommendation over half of the time. In fact, CJA had a slight edge in Brooklyn, where the judge agreed with CJA 70% of the time, compared to 67% agreement with the prosecutor. The figures total more than 100% because in many cases the judge agreed with the prosecutor and with CJA (when these two parties agreed with each other).

In Manhattan, judges were more likely to oppose the wishes of both the prosecutor and CJA: this happened in 15% of cases in Manhattan, and in 9% of cases in Brooklyn.

Table 6 Agreement on ROR Between Judge and Others Judge agreed with prosecutor Judge agreed with CJA Judge’s decision went against both the prosecutor and the CJA recommendation

Brooklyn N=821 551 67% 572 70% 70

9%

Manhattan N=902 572 63% 534 59% 139

15%

Because of the large number of cases in which the prosecutor and CJA agreed in their assessment of a defendant’s suitability for ROR — or more often, in their assessment of unsuitability for ROR — the relative influence of each is better illustrated by showing how the judge decided when the prosecutor and CJA gave the judge conflicting, as well as the same, advice.

This analysis is presented in Figure 9 on the following page.

The left-hand side of Figure 9 represents cases in which the prosecutor and CJA agreed, separately for Brooklyn and Manhattan. When CJA recommended ROR and the prosecutor consented, the judge nearly always granted ROR (99% of the time in Brooklyn and 100% of the time in Manhattan). When neither CJA nor the prosecutor advocated for ROR, the judge heeded their advice 62% of the time in Brooklyn and 61% of the time in Manhattan. The fact that the judge was likely to oppose both prosecutor and CJA only when their advice was not to ROR, combined with the lower CJA recommendation rate in Manhattan (Figure 7), explains why judges in Manhattan had a higher rate of disagreement with both (Table 6).

The bars on the right-hand side of Figure 9 represent cases in which there was disagreement between prosecutor and CJA. When the prosecutor consented to ROR and CJA did not recommend it (“ADA for ROR”), the judge almost always sided with the prosecutor and released the defendant. In the much more common situation in which CJA recommended ROR and the prosecutor did not consent (“CJA for ROR”), the judge sided with the prosecutor just over half the time, and did not order ROR (53% of cases in Brooklyn and 55% in Manhattan).

Thus when there was disagreement over ROR, judges in both boroughs were more likely to side with the prosecutor than with CJA. This was true no matter what the prosecutor requested, but the nature of the request made a big difference in how much more likely they were to side with the prosecutor. If the prosecutor consented to ROR, judges almost always complied; if the prosecutor asked for bail (in disagreement with CJA), judges complied in the majority of cases but did not comply almost half of the time.

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Part 3: Cross-Borough Analysis

Figure 9 Agreement On ROR Between Judge and Others

by Prosecutor-CJA Agreement BROOKLYN When Prosecutor and CJA Agreed 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

When Prosecutor and CJA Disagreed

1%

100% 90%

38%

9%

80%

47%

70% 60%

99%

50% 40%

62%

91%

30%

53%

20% 10% 0%

Agreed ROR N=124

Agreed no ROR N=234

ADA for ROR

CJA for ROR

N=43

N=420

Judge agreed with CJA Judge agreed with ADA

Judge disagreed with both Judge agreed with both

MANHATTAN When Prosecutor and CJA Agreed

When Prosecutor and CJA Disagreed

100%

100%

90% 80%

90%

39%

80%

70% 60% 50%

45%

70% 60%

100%

40% 30%

50%

100%

40%

61%

30%

20% 10%

55%

20% 10%

0%

Agreed ROR

Agreed no ROR

N=127

N=355

0%

ADA for ROR N=72

CJA for ROR N=348

Judge agreed with CJA Judge agreed with ADA

Judge disagreed with both Judge agreed with both

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Part 3: Cross-Borough Analysis

The most unexpected finding shown in Figure 9 was that judges released over a third of defendants for whom ROR was opposed by both CJA and the prosecutor (38% in Brooklyn and 39% in Manhattan: “Judge disagreed with both” on the bars labeled “Agreed no ROR”). The effect of the CJA recommendation can be inferred by comparing these percentages with the percent released when CJA recommended ROR (“Judge agreed with CJA” on the bars labeled “CJA for ROR”). When ROR was opposed only by the prosecutor the ROR rate rose to 47% in Brooklyn and 45% in Manhattan, resulting in increases of 9 and 6 percentage points respectively over the proportion that would have been released anyway. These findings are consistent with the results of the multiple regression analyses showing that the effect on ROR of the prosecutor’s request was much stronger than the CJA recommendation, but that the latter did exert a significant independent effect.

B. Agreement on Bail Amount Between Judge and Prosecutor CJA makes no recommendation as to bail amount, so this part of the analysis is limited to agreement between prosecutor and judge. We have already shown that the prosecutor’s bail request had a statistically significant effect on the amount of bail set; here we examine that relationship in more detail.

Table 7 shows, separately for Brooklyn and Manhattan, the number of cases in a given bail range for each corresponding range of bail requested. Bail amounts were grouped in 11 ordered categories, from amounts under $1,000 through amounts of $100,000 and higher, followed by remand without bail. Consent to ROR was not included in the ADA request categories (we have already seen that virtually all of these resulted in ROR) but ROR was included as the least severe option for the judge’s decision.

The shaded cells identify bail amounts within the same range as the prosecutor requested.

For example, in Brooklyn the upper left shaded cell identifies cases for which the prosecutor requested bail under $1,000 and the bail set was also under $1,000; there were 33 such cases. The cell percentage indicates that the judge set bail in this range for 27% of the defendants for whom the prosecutor requested bail under $1,000. Most of the remaining defendants for whom the prosecutor requested bail under $1,000 were released (66%); a few had bail set between $1,000 and $2,499 (6%); and fewer still had bail set between $2,500 and $3,999 (2%). None had bail set any higher than that.

Cases falling in cells to the left of the shaded diagonal are those in which the judge set bail lower than requested; those to the right of the shaded cells are those in which the judge set bail higher than requested (or ordered remand without bail). Most cases fell to the left of the shading; a small proportion fell directly in the shaded cells; a tiny fraction fell to the right.

Judges set bail higher than requested or ordered remand when bail had been requested in only 29 cases in Brooklyn and 7 in Manhattan. Thus the prosecutor’s request was only sometimes reached and was almost never exceeded.

The distribution of judicial decisions also provides further illustration of the strong effect on ROR of the dollar amount of the bail request. For requests under $1,000, the ROR rate was 66% in Brooklyn and 79% in Manhattan. The ROR rate generally decreased with each increment in the prosecutor’s request, dropping precipitously when the prosecutor’s request reached $6,000 (to 27% in Brooklyn and 18% in Manhattan). When the prosecutor’s request rose above $30,000, the ROR rate fell to zero in Manhattan and nearly zero in Brooklyn.

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BROOKLYN ADA Request

Judge’s Release/Bail Decision

Bail in the amount of:

ROR

less than $1,000

82 66% 108 51% 27 33% 27 45% 10 27% 1 100% 12 17% 3 10% 1 13%

$1,000 $2,499 $2,500 $3,999 $4,000 $5,999

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$6,000 $7,999 $8,000 $9,999 $10,000 $19,999 $20,000 $29,999 $30,000 $49,999

less than $1,000 33 27% 47 22% 7 9% 2 3% 2 5%

1 1%

$1,000 $2,499 7 6% 51 24% 30 37% 12 20% 7 19%

$2,500 $3,999 2 2% 3 1% 14 17% 11 18% 9 24%

$4,000 $5,999

8 11% 1 3% 1 13%

14 19% 3 10%

20 28% 7 23% 1 13% 1 6%

$50,000 $99,999

4 25%

1 1% 3 4% 5 8% 6 16%

$100,000+ Remand Total

11

$6,000 $7,999

1 2% 1 3%

4 6% 3 10%

1 5%

$8,000 $9,999

$10,000 $19,999

$20,000 $29,999

$30,000 $49,999

$50,000 $99,999

$100,000

92 14%

117 18%

60 9%

44 7%

10 2%

Total

3 75% 3 1%

124 100% 212 100% 82 100% 60 100% 37 100% 1 100% 72 100% 30 100% 8 100% 16 100% 20 100% 4 100% 666 100%

2 1% 1 1% 2 3% 2 5%

12 17% 8 27% 1 13% 3 19% 1 5%

1 1% 3 10% 2 25% 5 31% 3 15%

2 7% 2 25% 3 19% 2 10%

13 65%

12

1 25% 272 41%

Remand

+

32 5%

14 2%

9 1%

13 2%

Bail amounts of one dollar were omitted from the analyses.

It is unusual for a judge to grant ROR when the prosecutor thinks remand is appropriate; in this instance, the prosecutor requested remand because of an open felony case, which in the end was not prosecuted. The judge apparently anticipated this outcome on the other arrest.

12

Part 3: Cross-Borough Analysis

Table 7 Correspondence Between Prosecutor’s Bail Request and Amount of Bail Set11

MANHATTAN ADA Request

Judge’s Release/Bail Decision

Bail in the amount of:

ROR

less than $1,000

130 79% 89 59% 30 58% 61 53% 10 18% 2 18% 14 15% 3 11%

$1,000 $2,499 $2,500 $3,999 $4,000 $5,999 $6,000 $7,999

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$8,000 $9,999 $10,000 $19,999 $20,000 $29,999

less than $1,000 32 20% 42 28% 5 10% 5 4% 4 7%

2 2%

$30,000 $49,999 $50,000 $99,999

$1,000 $2,499 2 1% 16 11% 13 25% 21 18% 11 20% 1 9% 18 19% 4 15% 1 13% 1 8%

$2,500 $3,999

2 1% 4 8% 20 17% 19 34% 6 55% 32 34% 6 22% 1 13%

$4,000 $5,999

$6,000 $7,999

$8,000 $9,999

$10,000 $19,999

$20,000 $29,999

$30,000 $49,999

$50,000 $99,999

$100,000

2 1%

9 8% 6 11%

11 12% 3 11% 2 25% 2 15%

$100,000+

5 9% 2 18% 9 10%

1 8% 1 5%

1 2%

8 9% 8 30% 2 25% 2 15% 2 11%

3 11% 1 13% 3 23%

1 13% 2 15% 4 21%

2 15% 2 11%

10 53%

Remand Total

339 47%

90 13%

88 12%

90 13%

Remand

33 5%

18 3%

22 3%

7 1%

7 1%

4 1%

Total

+

10 1%

4 100% 7 1%

164 100% 151 100% 52 100% 116 100% 56 100% 11 100% 94 100% 27 100% 8 100% 13 100% 19 100% 4 100% 715 100%

Part 3: Cross-Borough Analysis

Table 7 (continued) Correspondence Between Prosecutor’s Bail Request and Amount of Bail Set

Part 3: Cross-Borough Analysis

VI.

CONCLUSIONS AND DISCUSSION The main conclusions from this research can be summarized as follows:

• The prosecutor’s bail request was the most powerful predictor of both ROR and bail amount.

• Not only was the prosecutor’s bail request the most important factor in both aspects of the decision, it was the only important factor in fixing bail amount. The ROR decision, on the other hand, was also influenced by the independent effects of a large number of criminal history variables, the CJA recommendation, and the type of offense.

• This research also confirms the importance of charge severity for release and bail decisions, primarily by demonstrating a strong indirect effect through prosecutors’ bail requests. The amount of bail requested by prosecutors was heavily determined by charge severity, and this was also a crucial factor in their consent to ROR. Additionally, the factors (other than the prosecutor’s request) that affected ROR differed depending on whether the top charge was a misdemeanor or a felony.

• The CJA recommendation system in use at the time of the research had a small but significant effect on whether the defendant was released, even though it had no effect on the prosecutor’s request. As expected, it also had no effect on bail amount.

• The defendant’s warrant history, along with charge severity, was a very important determinant of the prosecutor’s consent to ROR, and also independently affected judges’ ROR decisions in some analyses. The number of open cases also significantly affected ROR. Unlike the old recommendation system, the new one (implemented after completion of data collection for this research) takes into account both of these aspects of a defendant’s criminal history. A defendant with a prior failure to appear can no longer receive the highest recommendation, and having an open case makes the highest recommendation less likely. These changes may enhance the credibility of the recommendation system in the eyes of the court.

• When the prosecutor’s request conflicted with the CJA recommendation, the judge was more likely to side with the prosecutor. This tendency was only moderate when CJA recommended ROR and the prosecutor did not, but judges nearly always sided with the prosecutor in the less common situation when positions were reversed (i.e., when the prosecutor favored ROR and CJA did not). In a small percentage of cases the judge released a defendant against the recommendation of both the prosecutor and CJA. • Demographic characteristics were not important, but females had a better chance for ROR in some types of cases. There was evidence that prosecutors were more lenient in their bail requests for women than for men, and this was partly responsible for differing outcomes • Sometimes the release decision and the amount of bail depended on which judge heard the case rather than solely on case and defendant characteristics or prosecutors’ requests.

However, it was impossible to characterize judges overall as “lenient” or “strict.” Judges with higher than average ROR rates for misdemeanor defendants did not necessarily have the same tendency in felony cases, and leniency in setting low bail amounts did not carry over to ROR.

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Part 3: Cross-Borough Analysis

• These conclusions apply equally to Brooklyn and Manhattan. However, the prosecutor’s request added more to explanations in Brooklyn than in Manhattan, and the difference was particularly pronounced in regard to bail amount. This suggests that prosecutors were more dominant in Brooklyn. Outcomes also differed, in a direction that would be consistent with greater prosecutorial influence: ROR rates were lower and bail amounts were higher in Brooklyn than in Manhattan for both misdemeanors and felonies.13 The central finding of this research—that prosecutors dominated release and bail decisions—does not fit very well with judges’ beliefs about their own decision making processes.

Judges told us that they based their decisions on a wide variety of factors, among which the seriousness of the offense and the likelihood of a jail or prison sentence were most often mentioned.

These are the factors by which risk of flight can best be evaluated, in their view. In individual cases, a factor such as the insufficiency of the complaint sometimes overrode all else in prompting the judge to release a defendant who would otherwise have substantial bail set; or the absence of any family in court caused a judge to think twice about releasing a teenager. When asked directly about the prosecutor’s request, judges tended to be dismissive. In fact, they were occasionally highly critical of prosecutors for requesting “unrealistically high bail” or for relying only on the charge without considering other aspects of the case. One judge did acknowledge that the prosecutor sometimes influenced him, but explained that it depended on the individual.

This judge respected some prosecutors and was offended by the formulaic way in which he thought others constructed their bail requests.14 What is to be made of the gap between the research findings and judges’ perceptions?

One explanation is that judges simply do not realize, or do not wish to acknowledge publicly, the extent to which they take their cues from prosecutors. Indeed, the great value of statistical analysis is that it can identify overall patterns that are not immediately apparent, even (or especially) to someone with an intimate knowledge of the phenomenon being studied. In showing that the prosecutor’s bail request is influential, this research does not deny that judges have other—and to them, more salient—reasons for their decisions. Prosecutors’ influence may lie primarily in organizing a welter of messy and chaotic details to make those reasons readily accessible to judges in the few minutes they have to assimilate the essentials of each case.

In addition, the research suggests that prosecutors’ requests function to establish parameters. Judges rarely made a decision that was harsher than the prosecutors’ request: it was very unusual for bail to be set if the prosecutor consented to ROR, and bail amounts were almost never higher than the level requested by the prosecutor. Judges rarely set bail even as high as the prosecutor requested, a fact that may contribute to their belief that the prosecutor’s request carried little weight. However, bail amounts rose in tandem with prosecutors’ bail requests, demonstrating conclusively that there was a close association between the two.

13

Prosecutors’ requests were similar in the two boroughs, and more defendants in Brooklyn received a CJA recommendation, so neither of these factors can explain the harsher outcomes in Brooklyn. Defendants were also similar on most measures of criminal history. It lies outside the scope of this report to analyze all the other possible explanations for borough differences in ROR rates and bail amounts.

14 We discussed these issues with judges during observations when the opportunity arose, and a few judges also contributed thoughtful comments after reading a first draft of this report. However, judges were not interviewed systematically because our request to conduct formal interviews was denied by court administrators.

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Part 3: Cross-Borough Analysis

An alternative interpretation of the strong statistical association between the prosecutor’s request and the judge’s decision is that both could be independently influenced by the same factors. Many judges are former prosecutors, so it is a plausible hypothesis that they respond in the same way to similar cases and defendants; or that there is a “courtroom culture” with norms for release and bail that are understood and accepted by all the participants. By this interpretation, judges are not influenced by prosecutors; they separately reach the same conclusions about release and bail because both are looking at the same facts in a case.

This hypothesis has some merit, and it undoubtedly accounts for some of the correspondence between the request and the decision. If it were the whole story, though, we should be able to predict judicial decisions equally well without recourse to the prosecutor’s request. In addition, statistical models of the factors influencing the judge’s decisions should look very much like the models of the factors influencing the prosecutor’s request. Neither of these conditions was met. While we did find large areas of overlap—for example, charge severity and criminal history factors were important to both prosecutors and judges—we also found that no model that did not include the prosecutor’s request could predict judges’ decisions as well as a model that did include this information. However, we must acknowledge the possibility that unknown factors, not available to our analysis, independently affected both.

Another possibility is that prosecutors adjusted their bail requests in accordance with what they thought a particular judge would agree to. If so, then the causal relationship would be reversed: perhaps the judge’s reputation influenced prosecutors rather than the other way around.

A Brooklyn judge suggested this, and a prosecutor confirmed that it sometimes happened. There is even some evidence for it in the data. Brooklyn prosecutors were significantly more likely to consent to ROR when Judge #9 was presiding; they asked for significantly lower bail when Judge #15 was on the bench; and they asked for higher bail when they appeared before Judge #5.

However, nothing comparable was found in Manhattan, where the structure of the prosecutor’s office made it less likely that the same prosecutors and judges would face each other on a regular basis.15 Furthermore, the impact of individual judges on prosecutors’ requests was small even in Brooklyn. Thus, while it seems likely that there was a feedback effect in which each had some impact on the other, at least in Brooklyn, the conclusion that prosecutors exerted considerable influence on judicial decisions remains unaltered.

The influence of the defense attorney, by contrast, was negligible. The defense’s counter-request to the prosecutor’s bail request was not even entered in the statistical analyses partly because there was no variation (the defense always requested ROR, or “more reasonable bail”) and partly because the defense attorney made no request in a large proportion of cases (a common occurrence when the prosecutor consented to ROR). Attempts made in Parts 1 and 2 of this research to test the impact of specific defense arguments were also unproductive.

One difficulty in statistical analyses of release and bail decisions is that there are so many situations that call for a unique, or nearly unique, response. On one occasion a defendant was released only because the judge knew that he would be re-arrested immediately on another case, before leaving the courtroom. Several times a defendant, whom the judge had no intention of releasing to the community, was ROR’d to the custody of a mental facility. For the handful of juveniles in the sample, judges often made it clear that parental presence at arraignment was a 15

In Brooklyn, the same prosecutors were regularly assigned to arraignments; cases were turned over to other prosecutors post-arraignment. In Manhattan, one prosecutor usually stayed with a case from arraignment to disposition.

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Part 3: Cross-Borough Analysis

major issue in granting ROR. None of these situations occurred often enough to provide statistically significant predictors, but in each case the factor mentioned was of overriding importance.

Likewise, if a judge thought a defendant would not abide by an order of protection, that defendant’s chances of release were effectively destroyed even though this does not appear as a “significant factor” in our analyses. Several variables were coded to attempt to capture such instances (based on the defendant’s verbal outbursts or refusal to sign the order) but none was statistically significant because of their rarity. Such examples help to show why statistical models of ROR or bail amount can never approach a perfect explanation that accounts for 100% of the variance. The field work done in courtrooms for this research provided invaluable insights into the unexplained variance that bedevils every attempt to model judicial decisions statistically.

Underlying any discussion of factors affecting release and bail decisions is the thorny issue of the purpose of bail. Its only legitimate purpose, under the current New York statute, is to assure the defendant’s appearance in court throughout the case. By law, judges cannot use high bail to keep defendants behind bars in order to protect the community from further crimes.

Nor does New York have an option of remand without bail for this purpose. Detention without bail is allowed, but only for certain felonies, and only when no amount of bail is deemed high enough to keep the defendant from fleeing.

Many people believe that the courts in New York do in fact weigh public safety, along with risk of flight, in deciding whether a defendant can be released—and there is widespread support for the idea that they should do so. Judges are under considerable political pressure to keep dangerous criminals off the street while awaiting trial. Most states and the federal court system allow a consideration of public safety in making release and bail decisions, and legislation to amend New York’s law has been introduced frequently over the past decade. Seven such bills were introduced in the New York State Assembly this year, all seeking “to include language that would allow the courts to consider whether the individual is a danger to the alleged victim, members of the community, or themselves when setting bail,” in the phrasing of one.16 No action had been taken on any of these bills by the time the session ended in June.

Judges in the study expressed various opinions on the subject. One stated frankly that he believes it is his duty to protect the public from someone who poses a physical threat; he feared releasing a defendant who would commit a violent crime. Another criticized prosecutors who asked for large bail amounts “just because the case is high profile,” when the bail was not related to risk of flight. A point of view that was perhaps most typical was expressed by a judge who explained that he does consider the defendant’s dangerousness, “but by a backwards logic. If it’s violent, then he’s facing time. And if he’s going to be convicted, then he has no incentive to show up in court.”

This comment illustrates the difficulty of trying to tease out of the data an answer to the question of whether judges base decisions on concerns about public safety (and whether prosecutors consider public safety in making their requests). The importance of charge severity in release and bail decisions has often been interpreted to mean that the defendant’s perceived threat to the community, rather than risk of flight, is the paramount concern. However, if we accept the judge’s “backwards logic,” charge severity is also a measure of the defendant’s incentive to flee because of its link with the severity of the sentence. (Whether or not defendants facing jail really 16

A10267 (corresponds to New York State Senate bill S 6513), sponsored by State Assembly Member Joan K. Christensen, a Democrat from Syracuse.

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Part 3: Cross-Borough Analysis

are bad flight risks is another question.) We tried—unsuccessfully—to measure concerns about public safety directly. The coding sheet used for courtroom observations included “danger to the community” as a check-off item to characterize arguments, but prosecutors almost never argued that bail should be set explicitly for this reason. (As one prosecutor commented, “We can’t do that. Defense attorneys would say that’s preventive detention.”) Defense attorneys were only slightly more likely to use the counter-argument that their clients were not dangerous. Arguments explicitly citing public safety concerns were used so rarely that it is hardly surprising that none had any discernible effect on ROR or bail amount.

If judges do set bail because they think a defendant is dangerous, the argument could be made that the courts should have the option of imposing supervisory conditions for release, or even remanding such defendants without bail. The existence of a remand option might decrease the sub rosa reliance on cash bail for the purpose of detention by providing for explicit preventive detention, and procedural safeguards could then be established. Such provisions were included in most of the legislative initiatives in the New York State Assembly mentioned earlier.

The issues at stake were framed a quarter of a century ago by Goldkamp and Gottfredson (1979) in terms of visibility, equity, and rationality. Visibility is necessary in order to assess the equity and rationality of decisions, and can be achieved only by making explicit the factors that guide them. In spite of the New York statute’s broad prescriptions, the criteria that judges use and how they use them are not routinely visible either to themselves or to the public. This research has shown that judges relied to a great extent on the prosecutor’s bail request— which is not one of the statutory factors—and they were also heavily influenced by the severity of the charge, which is not listed in the statute but could be considered an indirect measure of the likely sentence (which is in the statute). The defendant’s criminal history, another important factor in actual decisions, is explicitly listed in the statute. Community ties are given a great deal of emphasis in the statute, but little emphasis in actual decisions. Without information about the reasons for release and bail decisions, Goldkamp and Gottfredson wrote, “it is impossible not only to make sense of decisions in individual cases, but it is equally impossible knowledgeably to conduct the critical policy debates that should surround such crucial decision points in criminal justice.” (p. 235) To achieve equity, decisions must be even-handed and systematic, with the same outcome for similarly situated defendants. Our research has several implications in this regard. On the one hand, the high R2 statistics for all of the judicial decision models suggest that decisions were much more systematic than they would have appeared to be without knowledge of the prosecutor’s bail request. More than 60% of the variance was explained in every decision model, dropping lower only for the Manhattan bail amount model (which still explained over half of the variance). However, since judges systematically relied on the prosecutor’s request, the result is equitable only if the prosecutor’s request could also be accounted for systematically.

While this was true for determining the amount of bail, it was not true for the prosecutor’s consent to ROR. The models predicting consent to ROR did not explain much of the variance, which suggests that prosecutors did not consistently consent to ROR for defendants who were similar, at least in terms of the variables available to the analysis. The significant role of judicial variability throughout the analyses also has negative implications for equity, as decisions made by different judges for similarly situated defendants would be the same in a thoroughly equitable criminal justice system.

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Part 3: Cross-Borough Analysis

Finally, this research has important implications for the rationality of bail decisions.

Bail decisions are rational to the extent that they are based on criteria that are known to be related to the goal(s) of bail-setting. If the goal is to assure the appearance of defendants in court, then the rational approach would be to use criteria known to predict failure to appear. The CJA recommendation has been shown empirically to do this very well using a variety of community ties measures, and recently including some aspects of criminal history as well (Siddiqi 2003c, 2002, 2001b, 2001a). The research conducted to develop and validate the CJA recommendation scheme has further shown that defendants charged with more severe offenses are not more likely to fail to appear than those charged with less severe offenses; in fact, the relationship is in the opposite direction (Siddiqi 2003a). This suggests that less emphasis on charge severity and a greater emphasis on the CJA recommendation would enhance the rationality of judicial release and bail decisions.

Of course, if the goal is something other than assuring the appearance of defendants in court, then the criteria for rational decision-making may be different. It is difficult to believe that judges in New York do not ever consider danger to the community in weighing release for a person accused of a serious crime, even though such a consideration is not authorized by law. The possible consequences of a heinous crime committed by a defendant out on pretrial release are too disturbing for many judges to ignore. If the implicit goal of the release decision is to prevent re-arrest, then the question becomes one of finding criteria relevant to predicting re-arrest. The dominance of charge severity in release decisions may reflect a belief on the part of judges and prosecutors that defendants charged with more severe crimes have a higher risk of re-arrest. If that were the case, then charge severity would be a rational criterion to use even though the goal is largely unacknowledged. However, recent research has found that offense severity has an inverse relationship with re-arrest as well as with FTA in New York City (Siddiqi 2003a, 2003b).

That is, defendants charged with more severe crimes who were released pretrial were less, not more, likely to be re-arrested than defendants charged with less severe crimes. Of course, defendants charged with serious crimes who are released (and thus at risk for FTA) may not be truly representative of all defendants charged with serious crimes, which makes it difficult to draw firm conclusions about the relationship between offense severity and re-arrest.

The current research could not account for a very large proportion of the prosecutor’s willingness to consent to ROR, as well as a smaller part of the prosecutor’s bail request. The unexplained variance may reflect the part played by prosecutors’ professional judgement—their “sense” of which defendants are at low risk of pretrial failure (whether measured by FTA or by re-arrest), based on factors that may be difficult to define. Or the unexplained variance may reflect the strength of the case, and thereby the likelihood of conviction. We had no way to measure case strength directly, although we did collect data on the frequency with which prosecutors made arguments based on this factor (43% of the time in Brooklyn and 52% of the time in Manhattan). The next phase of research will analyze the relative ability of the prosecutor’s request and the CJA recommendation to predict FTA, re-arrest, and conviction.

If the goals of the release decision include preventing re-arrest or reaching disposition quickly, the results of the next phase of research may suggest that it would be rational for judges to continue giving more weight to the prosecutor’s request than to the CJA recommendation (although the lack of a basis in law would be an issue). If the goal is to deter flight, and if prosecutors do a better job of predicting FTA than CJA does, then rational decision making would also require judges to heed the prosecutor rather than CJA. If, on the other hand, the prosecutor’s re-

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quest does not predict FTA well, then a greater reliance on the CJA recommendation would be more rational because it would better accomplish the objective of assuring defendants’ appearance in court.

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Part 3. Cross-Borough Analysis

VII. REFERENCES Albonetti, Celesta A. (1989), “Bail and Judicial Discretion in the District of Columbia.” SSR (Oct.) 74(1):40-47.

Albonetti, C.A., Hauser, R. M., Hagan, J., and Nagel, I. H. (1989), “Criminal Justice Decision Making As a Stratification Process: The Role of Race and Stratification Resources in Pretrial Release. “ Journal of Quantitative Criminology, 5(1):57-82.

Ares, Charles E., Rankin, Anne, and Sturz, Herbert (1963), “The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole.” New York University Law Review, 38(Jan.):67-95.

Ares, Charles E., and Sturz, Herbert (1962), “Bail and the Indigent Accused.” Crime and Delinquency (Jan.):12-20.

Barnes, Carole W., Kingsnorth, Rodney, and Hodgins, Tina (1989), “The 1984 Bail Reform Act: Organizational and Mandated Factors in the Decision to Detain.” Criminal Justice Policy Review 3(3):257-278.

Bock, E. Wilbur, and Frazier, Charles E. (1984), “The Combined Effects of Offense and Demeanor on Bond Decisions: Basis of Official Typifications.” The Journal of Social Psychology 123:231-244. _____(1977), “Official Standards Versus Actual Criteria in Bond Dispositions.” Journal of Criminal Justice 5:321-328.

Bynum, Tim S. (1982), “Release on Recognizance: Substantive or Superficial Reform?”

Criminology (May) 20 (1):67-82.

CJA, Semi-Annual Report: First Half of 2003 (February 2004). New York, NY: CJA. Clark, John, and Henry, D. Alan (1997), “The Pretrial Release Decision: Judges Need Better Guidance In Deciding What To Do With Arrestees Pending Trial.” Judicature (Sept.Oct.) 81(2):76-81.

Daly, Kathleen (1989), “Neither Conflict Nor Labeling Nor Paternalism Will Suffice: Intersections Of Race, Ethnicity, Gender, and Family In Criminal Court Decisions.”

Crime and Delinquency, 35:136-168.

Demuth, Stephen (2003), “Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black, and White Felony Arrestees.”

Criminology 41, 3 (Aug.):873-907.

Dhami, Mandeep K. (2002), “Do Bail Information Schemes Really Affect Bail Decisions?” The Howard Journal 41(3):245-262.

Ebbsen, E.B., and Konecni, V.J. (1975), “Decision making and information integration in the courts: The setting of bail. Journal of Personality and Social Psychology 32:805-821.

Eskridge, C. W. (1983), Pretrial Release Programming: Issues and Trends. New York: Clark Boardman Company, Ltd. Fleming, Roy B., Kohfeld, C. W., and Uhlman, Thomas M. (1980), “The Limits of Bail Reform: A Quasi-Experimental Analysis.” Law & Society Review 14(4):947-976.

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Frazier, C. E., Bock, E. W., and Henretta, J. C. (1980), “Pretrial Release and Bail Decisions: The Effects of Legal, Community, and Personal Variables.” Criminology 18:162-181.

Goldkamp, John S. (1993), “Judicial Responsibility for Pretrial Release Decisionmaking and the Information Role of Pretrial Services.” Federal Probation 57(1):28-35. _____ (1987), “Prediction in Criminal Justice Policy Development.” pp. 103-150 in Don M. Gottfredson and Michael Tonry, eds., Prediction and Classification: Criminal Justice Decision Making. Vol. 9 of Crime and Justice: A Review of Research, edited by Michael Tonry and Norval Morris. Chicago: The University of Chicago Press. _____ (1985), “Danger and Detention: A Second Generation of Bail Reform,” The Journal of Criminal Law & Criminology, vol. 76:1, pp. 1-74. _____ (1984), The Development and Implementation of Bail Guidelines: Highlights and Issues.

(Oct.) US Department of Justice, National Institute of Justice. _____ (1979), Two Classes of Accused: A Study of Bail and Detention in American Justice.

Cambridge: Ballinger Publishing Company.

Goldkamp, John S., and Gottfredson, Michael R. (1985), Policy Guidelines for Bail: An Experiment in Court Reform. Philadelphia: Temple University Press. _____ (1979), “Bail Decision Making and Pretrial Detention: Surfacing Judicial Policy.” Law and Human Behavior 3(4):227-249.

Goldkamp, John S., Gottfredson, Michael R., Jones, Peter R., and Weiland, Doris (1995), Personal Liberty and Community Safety: Pretrial Release in the Criminal Court. Plenum Series in Crime and Justice. New York and London: Plenum Publishing Corp.

Gottfredson, Don M. (1999), Exploring Criminal Justice: California: Roxbury Publishing Company.

An Introduction.

Los Angeles,

Gottfredson, Michael R. (1974), “An Empirical Analysis of Pre-trial Release Decisions.”

Journal of Criminal Justice, 2:287-303.

Gottfredson, Michael R., and Gottfredson, Don M. (1988), Decision Making in Criminal Justice: Toward the Rational Exercise of Discretion, 2nd ed. New York: Plenum Press.

Jones, Peter R., and Goldkamp, John S. (1991), “Judicial Guidelines for Pretrial Release: Research and Policy Developments in the United States.” Howard Journal of Criminal Justice (May) 30(2):140-60.

Kruttschnitt, Candace (1984), “Sex and Criminal Court Dispositions: The Unresolved Controversy.” Research in Crime and Delinquency 21(3):213-232.

Kruttschnitt, Candace, and Green, D. (1984), “The Sex-Sanctioning Issue: Is It History?”

American Sociological Review 49:541-551.

Lazarsfeld, Paul F. (1974), “An Evaluation of the Pre-Trial Service Agency of the Vera Institute of Justice, Final Report.” New York: Vera Institute of Justice.

Lee, Leona (July 1995), Factors Associated With Arraignment Outcomes in New York City Criminal Courts, 1989. New York, NY: CJA.

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Maxwell, Sheila Royo (1999), “Examining the Congruence Between Predictors of ROR and Failures to Appear.” Journal of Criminal Justice 27 (2):127-141.

Maxwell, Sheila Royo, and Davis, Jessica S. (1999), “The Salience of Race and Gender in Pretrial Release Decisions: A Comparison Across Multiple Jurisdictions.” Criminal Justice Policy Review 10(4):491-501.

Nagel, Ilene H. (1983), “The Legal / Extra-Legal Controversy: Judicial Decisions in Pretrial Release.” Law and Society Review 17 (3):481-515.

Phillips, Mary T. (May 2002), Judicial Release/Bail Decisions at Criminal Court Arraignment: Results From A Pilot Project In Manhattan: Final Report. New York, NY: CJA. _____ (March 2000), Release-On-Recognizance Recommendation System for Juvenile Offenders Arraigned in New York City Adult Courts. Part II. New York, NY: CJA. _____ (August 1999), Release-On-Recognizance Recommendation System for Juvenile Offenders Arraigned in New York City Adult Courts. Part I: Validation Study. New York, NY: CJA. Phillips, Mary T., and Revere, Elyse J. (July 2004a), Factors Influencing Release and Bail Decisions, Part 1. Manhattan. New York, NY: CJA. _____ (July 2004b), Factors Influencing Release and Bail Decisions, Part 2. Brooklyn. New York, NY: CJA. Roth, Jeffrey, and Wice, Paul (1978), “Pretrial Release and Misconduct in the District of Columbia.” PROMIS Research Project Publication 16, Washington, DC: Institute for Law and Social Research.

Siddiqi, Qudsia (April 2004), CJA’s New Release-Recommendation System. Research Brief No. 6. New York, NY: CJA. _____ (December 2003), An Examination of the Existing and New Pretrial Release Recommendation Schemes in New York City: A Pre-Implementation Analysis. New York, NY: CJA. _____ (June 2003), Predicting the Likelihood of Pretrial Re-Arrest Among New York City Defendants: An Analysis of the 2001 Dataset. New York, NY: CJA. _____ (March 2003), Predicting the Likelihood of Pretrial Re-Arrest: An Examination of New York City Defendants. New York, NY: CJA. _____ (June 2002), Prediction Of Pretrial Failure to Appear and An Alternative Pretrial Release Risk-Classification Scheme in New York City: A Reassessment Study. New York, NY: CJA. _____ (March 2001), Prediction Of Pretrial Failure to Appear and A New Risk-Classification Scheme in New York City: Translation of the Prediction Model into Policy. New York, NY: CJA. _____ (October 2000), Prediction of Pretrial Failure To Appear and Alternative Pretrial RiskClassification Schemes in New York City: A Validation Study. New York, NY: CJA.

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_____ (November 1999), Assessing Risk of Pretrial Failure to Appear in New York City: A Research Summary and Implications for Developing Release-Recommendation Schemes.

New York, NY: CJA. Steury, Ellen Hochstedler, and Frank, Nancy (1990), “Gender Bias and Pretrial Release: More Pieces of the Puzzle.” Journal of Criminal Justice 18:417-432.

Stryker, R., Nagel, I. H., and Hagan, J. (1983), “Methodological issues in court research; Pretrial Release Decisions for Federal Defendants.” Sociological Methods and Research 11:469500.

Suffet, Frederic (1966), “Bail Setting: Delinquency 12 (4):318-331.

A Study of Courtroom Interaction.”

Crime and

Sviridoff, Michele (1986), “Bail Bonds and Cash Alternatives: The Influence of ‘Discounts’ on Bail-Making in New York City.” The Justice System Journal 11 (2):131-147.

Varma, Kimberly N. (2002), “Exploring ‘Youth’ in Court: An Analysis of Decision-Making in Youth Court Bail Hearings.” Canadian Journal of Criminology (Apr.) 143-164.

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APPENDIX A Independent Variables Tested in the Analyses

Correlations between the dependent variables and the independent variables listed below were examined. Independent variables with a statistically significant (at p ≤ .05) correlation with the dependent variable were considered candidates for inclusion in the regression analyses if the coefficient had a strength of .1 or greater. Independent variables that were strongly correlated with each other (.4 or higher, and significant at the .05 level) were not entered together into the same regression analysis. All of the independent variables, except where noted, are coded as yes or no. Additional variables from the observations, including arguments used by prosecutors and defense attorneys, were tested in analyses for the first two reports from this research and are listed in appendixes to those reports.

I. Independent Variables from the CJA Database Charge Variables Variable name: Arrest charges a1sev a1ty1 a1ty2 a1ty3 a1ty4 a1ty5 a1ty6 a1ty7 a1ty8 a1ty9 a1ty10 a1vfo noarrch nofela novfoa Arraignment Charges: ch1sev felony rchg1ty1 rchg1ty2 rchg1ty3 rchg1ty4 rchg1ty5

Variable description Severity class of the top arrest charge (10 categories, from 1=infraction to 10=A felony) Charge type of top arrest charge = harm to persons Charge type of top arrest charge = harm to persons and property Charge type of top arrest charge = weapon charge Charge type of top arrest charge = property crime Charge type of top arrest charge = drug charge Charge type of top arrest charge = sex crime Charge type of top arrest charge = theft intangible Charge type of top arrest charge = misconduct Charge type of top arrest charge = obstructing justice Charge type of top arrest charge = VTL offense Top arrest charge = Violent Felony Offense (VFO) Number of arrest charges Number of felony arrest charges Number of VFO arrest charges

Severity class of the top arraignment charge (10 categories, from 1=infraction to 10=A felony). Also, each category was tested as a dummy variable Top arraignment charge = felony Charge type of top arraignment charge = harm to persons Charge type of top arraignment charge = harm to persons and property Charge type of top arraignment charge = weapon charge Charge type of top arraignment charge = property crime Charge type of top arraignment charge = drug charge

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(Appendix A continued from previous page) Variable name Variable description rchg1ty6 Charge type of top arraignment charge = sex crime rchg1ty7 Charge type of top arraignment charge = theft intangible rchg1ty8 Charge type of top arraignment charge = misconduct rchg1ty9 Charge type of top arraignment charge = obstructing justice rchg1ty0 Charge type of top arraignment charge = VTL offense rchg1t88 Charge type of top arraignment charge = other/unknown charge type noaff Number of charges on arraignment calendar nofelaff Number of felony charges on arraignment calendar novfoaff Number of VFO charges on arraignment calendar

Criminal History Variables firar pfel pmis open pmjr pprir pyor onparr psor pwarrr pwarrr2

Defendant’s first adult arrest (excluding sealed records) Number of prior felony convictions (also recoded 0, 1, 2, 3, 4+) Number of prior misdemeanor convictions (also recoded 0, 1, 2=2-3, 3=4-9, 4=10-19, 5=20+) Number of open cases at time of arrest also recoded (0, 1, 2, 3+) Prior misdemeanor jail sentence Prior prison sentence Prior YO adjudication On parole Prior conviction for a sex offense One or more prior warrants ordered Two or more prior warrants ordered

Defendant and Community Ties Variables age female black white Hispanic CJArec vempr vnycr vtelr vladr exarrn vlvwr

Defendant’s age at time of arrest also recoded (1=13-15, 2=16-18, 3=19-28, 4-29-38, 5=39-48, 6=49-58, 7=59+) Defendant is female Defendant is black Defendant is white Defendant is Hispanic CJA recommendation (several different recodings were tested) Defendant is employed, in school, or in training program full time (0=no or no verified, 1=yes or yes verified) NYC area address (including Westchester, Nassau, and Suffolk counties) (0=no or no verified, 1=yes or yes verified) Working telephone in residence (0=no or no verified, 1=yes or yes verified) Length of time at current address is 18 months or more (0=no or no verified, 1=yes or yes verified) Expects someone at arraignment Lives with parent, spouse, common-law spouse, grandparent, or legal guardian (0=no or no verified, 1=yes or yes verified)

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II. Independent Variables From Observations Variable name judge1, judge2, etc. dis opspot intimate known drugct dvpart gun knife weapon adaamtr probail probail2

Variable description A dummy variable was constructed for each judge Defendant was disrespectful Operation Spotlight case Intimate relationship between defendant and victim (family member, lover, exlover, etc.)

Victim was known to defendant (includes intimate) Case was adjourned to a specialized drug court Case was adjourned to a specialized Domestic Violence court part Gun was used or found on defendant Knife was used or found on defendant A weapon was used or found on defendant (includes gun and knife) prosecutor’s bail request in dollars (consent to ROR coded 0; remand coded 100,000) (used for bail amount models) prosecutor’s bail request (0=consent to ROR, 1=under $750, 2=$750-2499, 3=$2500+) (used for misdemeanor ROR models) prosecutor’s bail request (0=consent to ROR, 1=under $750, 2=$750-2499, 3=$2500-$4999, 4=$5000-$9999, 5=$10,000-$49,999, 6=$50,000+, 7=remand) (used for felony ROR models)

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APPENDIX B LOGISTIC REGRESSION MODELS OF ROR ALL CASES COMBINED (SEPARATELY FOR BROOKLYN AND MANHATTAN) Table B-1. BROOKLYN MODEL A Without Prosecutor’s Bail Request N=817 Odds Ratio Standardized β

Independent Variables Prosecutor’s bail request (0=consent to ROR; to 7=remand) Severity of the arraignment charge (1=infraction; to 10= A felony) Prior warrant (0, 1+) Operation Spotlight case (0=no, 1=yes) Number of open cases (0, 1, 2, 3+) Gun (0=no, 1=yes) Female (0=no, 1=yes) Judge #2, #4, #8, #11, or #12 Number of arrest charges (1, 2, 3, 4+) Judge #9, #10, #14, or #15 CJA recommended defendant for ROR (0=no, 1=yes,verified or qualified) Disrespectful (0=no, 1=yes) New York City address (0=no, 1=yes, verified or unverified) Victim was known to defendant (0=no, 1=yes)

—

—

MODEL B With Prosecutor’s Bail Request N=702 Odds Ratio Standardized β .41

−.62***

.63

−.46***

—

—

.19 .10 .53 .16 2.63 .54 .79 1.65

−.43*** −.25*** −.23*** −.22*** .17** −.16** −.15** .14*

.21 .13 .54 .33 2.55 .50 — —

−.27*** −.15** −.14*** −.08* .11* −.12** — —

1.73

.13**

1.68

.08*

.14

−.13*

<.01

2.86

.11*

5.79

.12*

1.60

.11*

2.44

.16***

Nagelkerke R2 = .48

−.28

Nagelkerke R2 = .62

Table B-2. MANHATTAN

Independent Variables Prosecutor’s bail request (0=consent to ROR; to 7=remand) Severity of the arraignment charge (1=infraction; to 10= A felony) Prior warrant (0, 1+) Number of open cases (0, 1, 2, 3+) CJA recommended defendant for ROR (0=no, 1=yes, including qualified) White (0=no, 1=yes) Offense type = misconduct (0=no, 1=yes) On parole (0=no, 1=yes) Offense type = theft intangible (0=no, 1=yes) Disrespectful (0=no, 1=yes) Number of VFO affidavit charges (0, 1, 2+) Female (0=no, 1=yes) Operation Spotlight case

MODEL A Without Prosecutor’s Bail Request N=850 Odds Ratio Standardized β —

—

MODEL B With Prosecutor’s Bail Request N=805 Odds Ratio Standardized β .34

−.69***

.53

−.54***

—

.14 .59

−.41*** −.22***

.17 .65

−.28*** −.13***

2.01

.18***

2.20

.14***

.18*** .17* −.16*** .15** −.14* −.10* .10** —

4.46 — .22 3.59 .12 — — .13

.16*** — −.12*** .12* −.10* — — −.10*

3.60 2.36 .26 .3.25 .11 .63 1.85 —

2 Nagelkerke R = .54

—

Nagelkerke R2 = .66

***p ≤ .001, ** p ≤ .01, * p ≤ .05 A coefficient with no asterisk indicates that the variable was in the model but was not significant at the .05 level.

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