Excerpted from: Clanitra Stewart Nejdl, Race, Poverty, and Bail: An Annotated Bibliography, 38 Northern Illinois University Law Review 487 (Summer, 2018) (38 Footnotes) (Full Document)
On June 9, 2017, Illinois's Bail Reform Act of 2017 was signed into law by Governor Bruce Rauner. Among other important provisions, the Act creates a presumption that non-monetary release conditions will be granted for defendants, requires that a defendant be provided an attorney for bail determination hearings, provides a bail credit for certain offenses, and authorizes the Illinois Supreme Court to create a non-discriminatory statewide risk assessment tool that could be used to make bail determinations. Despite the crucial improvements to Illinois's bail system achieved through the Act, some advocates argue that further reforms are still needed to protect the rights of defendants related to bail and pretrial release.
In light of the recent bail reforms in Illinois and other states, it is important to consider the growing body of research addressing whether (and, if so, the extent to which) bail outcomes and related pretrial release decisions are connected to the race, ethnicity, and income level of a defendant. Even if the bail and pretrial release policies in a state are intended to be race and income-neutral, racial and income disparities may still result. By examining existing research on this topic, stakeholders in states considering bail reform (including judges, legislators, lawyers, and community members) can truly determine what reforms may be sufficient and what additional reforms may still need to be considered.
This annotated bibliography highlights selected articles and studies examining the effects of a defendant's race and income level on bail determinations and the pretrial detention period. It is not intended to be a comprehensive list of all works available. Works selected for inclusion were published between the years 2000 and 2018 in law reviews and journals meeting specific ranking criteria. Although there are additional articles and studies available on this topic, the exclusion of any work from this annotated bibliography does not indicate any qualitative opinion of that work.
Included in the annotation:
- ‘‘Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N. Y. U. J. LEGIS. & Pub. Pol'y 919 (2013).
- A Comparison of Bail Amounts for Hispanics, Whites, and African Americans: A Single County Analysis, 30 Am. J. of Crim. Just. 35 (2005).
- Bail Credit: An Innovated Way to Mitigate Oppressive Monetary Bail, Crim. Just., Winter 2018, at 32.
- Bail: Reforming Policies to Address Overcrowded Jails, the Impact of Race on Detention, and Community Revival in Harris County, Texas, 7 Nw. J. L. & Soc. Pol'y 42 (2012).
- Confronting Race in the Criminal Justice System: The ABA's Racial Justice Improvement Project, Crim. Just., Summer 2012, at 12.
- Cumulative Disadvantage: Examining Racial and Ethnic Disparity in Prosecution and Sentencing, 52 Criminology 514 (2014).
- Is the Impact of Cumulative Disadvantage on Sentencing Greater for Black Defendants?, 14 Criminology & Pub. Pol'y 187 (2015).
- Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment, 69 Wash. & Lee L. Rev. 1297 (2012).
- Race and Cumulative Discrimination in the Prosecution of Criminal Defendants, 3 Race & Just. 275 (2013).
- Racial and Ethnic Disparity in Pretrial Criminal Processing, 22 Just. Q. 170 (2005).
- Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black, and White Felony Arrestees, 41 Criminology 873 (2003).
- Rigged: When Race and Poverty Determine Outcomes in the Criminal Courts, 14 Ohio St. J. of Crim. L. 263 (2016).
- Sentenced to Pretrial Detention: A Study of Bail Decisions and Outcomes, 40 Am. J. Crimjust. 661 (2014).
- The Price for Justice: The Economic Barriers that Contribute to an Unfair and Unjust Criminal Justice System, Crim. Just., Winter 2018, at 40.
- The Impact of Race on the Pretrial Decision, 35 Am. J. Crim. Just. 76 (2010).
- The Right to an Attorney is Not Enough: Steps to Rid the Criminal Justice System of Its Poverty Tax, 44 Fordham Urb. L. J. 1407 (2017).
- Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1399 (2017).
Clanitra Stewart Nejdl is an Assistant Professor on the Law Library Faculty and the Research and Instructional Services Librarian at the David C. Shapiro Memorial Law Library at the Northern Illinois University College of Law.