The Legal/Extra-Legal Controversy: Judicial Decisions in Pretrial Release

Abstract

This study analyzes data for state criminal defendants prosecuted in New York to determine the bases upon which judges make pretrial release decisions for these defendants. Treating statutory law as defining the category of legal variables, it finds legal factors substantially affect decisions about whether to release a defendant on recognizance, the amount of bail required, and whether to offer a defendant a cash alternative to a surety bond. The impact of these factors varies, however, depending upon the particular decision being made. Factors not prescribed in the statute—extra-legal factors—are also found to affect these pretrial release decisions. Their impact, too, is decision context specific. Among the extra-legal factors that affect pretrial release decisions, the effects of status characteristics of the defendant pale in comparison to the effects of bench bias and measures of the defendant's dangerousness.

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