B. Pretrial Strategy

1. Bail Determinations

Once a charging decision has been made, prosecutors must determine whether to oppose bail and, if not, how high of a bail to recommend. There is empirical evidence to suggest that, at least in some jurisdictions, minority defendants receive less favorable pretrial detention determinations than their white counterparts. Similar to a prosecutor's decision to charge, this finding might be partially driven by implicit racial attitudes and stereotypes. In the bail context, in addition to the stereotype of the black defendant as hostile and prone to criminality, which itself could lead to inflated bail requests, implicit racial bias might also operate through a functionally distinct mechanism--namely, the implicit devaluation of the defendant. One major factor in all bail determinations is the strength of the defendant's ties to the community, including employment situation. Here, the assumption is that if a defendant has a good job and a solid connection with the community, then the defendant will be less likely to flee.

As studies such as stereotype IATs repeatedly demonstrate, black Americans are stereotyped as being less intelligent, lazier, and less trustworthy than white Americans. If a prosecutor is primed with a picture of the black defendant as she reviews the case file prior to the bail hearing, these negative work- and character-related stereotypes might cause the prosecutor to view the black defendant's work history and community connection with more skepticism than a similar background provided by a white defendant's background. On the other hand, a white prosecutor might view a similarly situated white defendant with positive implicit attitudes and stereotypes activated. These stereotypes might lead to the judgment that a hard-working and intelligent white defendant has a strong employment background and an intimate connection with the community.