The Effects of Legal and Extralegal Factors on Detention Decisions in US District Courts

Abstract

The Bail Reform Act of 1984 changed the law dictating release and detention decisions in federal court. Since its passage, few studies have examined judicial decision-making in this context. Legal research enables us to account for the structure and interpretation of federal detention laws and to analyze previously neglected measures of legal factors in our analyses. We use US Sentencing Commission data on a sample of defendants who were sentenced in 2007 (N = 31,043). We find that legal factors—particularly length of criminal history, having committed a violent or otherwise serious offense, and having committed the offense while under supervision of the criminal justice system—have the strongest relationships with the presentence detention outcome. A defendant’s age, race, and ethnicity have weaker relationships with detention. When we compare defendants who are similarly situated with respect to legal factors, the probability of detention is similar regardless of age, race, and ethnicity.

Keywords:

• federal court
• detention
• legal factors vs. extralegal factors

Acknowledgments

This material is based upon work supported by a National Science Foundation Graduate Research Fellowship. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the National Science Foundation. A previous version of this article was presented at the Annual Meeting of the American Society of Criminology in 2010. The first author wishes to acknowledge and thank the sponsors and instructors of the 2009 ICPSR Summer Workshop on Sentencing and Other Federal Case Data Analysis for their support and excellent instruction on use of the US Sentencing Commission data.

Notes

1. Minor amendments have been made to the BRA over the years, and it is now codified at 18 USC §§ 3141–3156 (hereinafter, shortened to section number only). It has also withstood constitutional challenges (United States v. Salerno, 1987). The Salerno Court held that, as a matter of law, there is no absolute right to bail in criminal cases; the government has a compelling interest in protecting the community from dangerous offenders; the BRA provides defendants with sufficient procedural safeguards; and, despite contrary opinions (e.g. Demuth, 2003), pretrial detention is not impermissible punishment; it is a legitimate regulation imposed on dangerous defendants.

2. Presentence detention is governed by section 3143. At the presentence stage, the release or detention decision is made in accordance with the factors listed in section 3142, the pretrial detention statute (Adair, 2006, p. 6, 36; S. Rep. No. 98-225, p. 18, 1983). The evidentiary standards are slightly different, however. To detain a defendant at the pretrial stage, the government has the burden to show that no conditions of release will ensure the safety of the community by clear and convincing evidence or that no conditions of release will ensure the defendant’s appearance by a preponderance of the evidence. To release a defendant at the presentence stage, the defendant has the burden of proving no risk of danger or flight by a clear-and-convincing-evidence standard. The burden at the presentence stage is somewhat heavier for defendants with the violence, statutory maximum, or drug “triggers” (described below); to be released these defendants must also show, depending on the relevant circuit law, that their post-trial motions for acquittal or new trial will be successful, or the government will not recommend imprisonment, or other exceptional reasons exist.

3. On the one hand, only a very small percentage of defendants—about 1%—are detained at the pretrial stage but released before sentencing (Bak, 2002). On the other hand, approximately 7.6% of pretrial releasees will be detained at the presentence stage due to violations of the conditions of their pretrial release—either a technical violation or the commission of a new crime—and consequent revocation of pretrial release (Bureau of Justice Statistics, 2006).

4. Table 1 contains a summary of variables used in the study and statutory references for the legal concepts discussed in this section.

5. Section 3156 broadly defines “crime of violence.”

6. A detailed discussion of financial conditions of release—or bail—is beyond the scope of this paper (see generally § 3142(c)).

7. Research in the state courts is only marginally helpful to our understanding of federal detention. First, many of these studies were conducted on data in jurisdictions that were later affected by state-level legislation similar to the BRA, rendering findings of disparity based on class and race under earlier laws largely irrelevant to our study of detention decisions in federal court (e.g. Foote, 1954; Frazier, Bock, & Henretta, 1980; Goldkamp, 1980; Nagel, 1983). Second, more recent research analyzes State Court Processing Statistics (SCPS) program data (e.g. Demuth, 2003; Schlesinger, 2005), which are compiled from 75 counties in 24 states. Because the SCPS data are aggregated, they neglect the structure of state-level detention statutes. Without an analysis of the 24 detention statutes to determine which factors, in fact, are legally relevant in each jurisdiction, the SCPS data are not necessarily appropriate for assessing the relative importance of legal and extralegal factors on detention status (see Nagel Bernstein et al., 1977; Stryker et al., 1983).

8. There are other studies of pretrial detention in federal court that do not explore racial or ethnic disparity (Bak, 1998b, 2002; United States General Accounting Office, 1987).

9. Although USPPS data might be preferable for certain detention analyses, they are not publicly available (M. Motivans, Bureau of Justice Statistics, personal communication, January 2010).

10. Subsections 3142(a)(3) and 3142(d) allow a 10-day period of automatic detention for defendants who are not US citizens or lawful permanent residents. The purpose of this temporary detention is to notify officials from US Immigration and Customs Enforcement (ICE) and to allow them to place detainers on these defendants. Release or detention is then determined in accordance with the detention statutes. Although practices vary by districts, AUSAs generally seek detention of illegal aliens because of the flight risk they pose, regardless of whether ICE detainers have been lodged. Flight risk exists because nearly all illegal aliens convicted of a federal offense will face removal proceedings.

11. We cannot construct a measure for the seventh trigger as the data do not indicate whether a defendant’s previous convictions include crimes of violence, crimes punishable by life or death, or serious drug crimes (§ 3142(f)(1)(D)). In addition to the six triggers, we also constructed Any Trigger, a measure of whether any of the triggers warranting detention are present for a particular defendant, for descriptive purposes.

12. Weight of the evidence as a legal factor has been identified as important (Bak, 1998b; Frazier et al., 1980; Nagel, 1983), but a continuous measure is not possible with these data. The presumption variable suggests such defendants will have a substantial but not insurmountable evidentiary burden to carry. Additionally, we cannot construct a measure for the other rebuttable presumption as the data do not indicate whether a defendant has previously violated pretrial release (§ 3142(e)(2)); however, it has been noted that the application of the previous-violator presumption is rare (Adair, 2006).

13. Two items should be noted here. First, there are no defendants sentenced in the US District Court for the Northern Mariana Islands. Second, there is a thirteenth appellate circuit, the Federal Circuit, but its nationwide jurisdiction is based upon subject matter that does not include criminal appeals (28 U.S.C. § 1295).

14. We chose to control by circuit rather than by district for three reasons. First, there are problematic districts with no or too few cases, especially when analyses are run by racial/ethnic group. Second, there are circuit splits with respect to detention law, and because every district is bound to follow the legal precedents of its circuit, districts within circuits are more similar with respect to the legal factors they employ in detention decisions. Third, analyses were run with district dummies (dropping those with too few cases) and the results were similar to those of analyses with circuit dummies; our substantive conclusions do not change.

15. Following Menard’s (2011) suggestions regarding the interpretation of logistic regression estimates with respect to questions like ours, we use the “listcoef, std” command in Stata 9.0 to calculate fully standardized coefficients (Long & Freese, 2006). Although Menard (2011) recommends a slightly different approach, earlier work (Menard, 2004, p. 222) demonstrates that his and Long’s (1997) procedures yield similar results.

16. Our presentence detention figures are consistent with, but not identical to, pretrial release and detention prevalence in prior years. That is, approximately 60% of all defendants are detained at the pretrial stage, whereas 40% are released (Bureau of Justice Statistics, 2006).

17. We also entered the block of extralegal factors after estimating the model with legally relevant factors alone. The block of extralegal factors is statistically significant, but the increase in the pseudo R ², from .2391 to .2435, is fairly negligible.

18. We do not report the detention outcome in the full sample without the racial/ethnic group explanatory variables. However, there is no change in the pseudo R ² or in the relative strength of the explanatory variables between the reported model with race/ethnicity and the unreported model without it.

19. The coefficient comparison test assesses whether there is a statistically significant difference between two coefficients; i.e. whether a legal factor has the same effect for each racial/ethnic group (Brame et al., 1998).

20. Of the 92,517 cases closed by USPPS in fiscal year 2007, less than 8% were dismissed, acquitted, diverted, or became fugitives (Administrative Office of the US Courts, 2007).

21. Compare the current federal statute as discussed herein with the bail statute in New York (Nagel, 1983), which identifies seven types of legal factors, all designed to ensure the appearance of the defendant and not necessarily concerned with dangerousness.

22. Attempts to create measures of formalism are underway (see, e.g. Alberstein, 2009).