Racial and Ethnic Threats in Pretrial Release Processing

Although extant research highlights the importance of race in determining pretrial detention outcomes, few studies have examined the ecological factors that shape these extralegal disparities. Building on minority threat theories, this project uses hierarchical modeling techniques to examine how county-level ethnic and racial composition impacts pretrial release outcomes for adult defendants charged with drug felonies. Results indicate that racial and ethnic threats significantly influence the amount of bail set, the probability a defendant posts bail, and the likelihood a defendant is detained prior to trial. The paper concludes with a discussion of the structural differences between racial and ethnic threats. ICPSR Bulletin Special Edition 2012 1 Pretrial Release Processing1" " 1. Introduction Although studies of courtroom racial/ethnic biases have traditionally focused on final sentencing outcomes, recent scholarship marks the pretrial release stage as a crucial site for producing and promoting racial/ethnic injustices (Freiburger & Hilinski 2010). Blacks and Hispanics are more likely than Whites to be denied bail, receive higher bail amounts, fail to post bail, and be detained prior to trial (Schlesinger 2005). The legal and social ramifications of this racial/ethnic bias are severe: While pretrial detention increases the likelihood of conviction (Schlesinger 2007), incarceration limits economic opportunities, destabilizes social networks, and increases chances of criminal recidivism (Freiburger, Marcum & Pierce 2010). Despite the importance of the pretrial release process to the well-being of the defendant and the equity of the criminal justice system, the literature on pretrial judicial decision-making remains underdeveloped. In particular, extant research has failed to examine how social ecology structures preadjudication racial/ethnic disparities. Given that courtroom actors are nested within the social, economic and ideological contexts of the surrounding community (Johnson 2006), studying the ecological predictors of pretrial detention outcomes can yield key insights into how racial/ethnic bias forms during the pretrial release process. To address this gap in the literature, the present research uses pretrial detention data on adult drug felony defendants to examine how social context shapes judicial decision-making during the pretrial release process. Drawing upon minority threat theories, this study tests whether county-level racial/ethnic composition impacts (1) the decision to deny a defendant bail, (2) the decision to offer a defendant a nonfinancial release option, (3) the level of bail set by a judge, (4) the likelihood that the accused will post bail, and (5) the probability that the defendant will be released prior to trial. To this end, the following essay is divided into six parts. Section 2 establishes the theoretical framework for examining minority threat effects in the context of ICPSR Bulletin Special Edition 2012 2 Pretrial Release Processing2" " pretrial detention, as well as provides an overview of the relevant empirical literature. Sections 3 and 4 then describe the data and methodology used to test the minority threat hypothesis for pretrial detention outcomes. Section 5 presents model results and section 6 concludes the paper with a discussion of the theoretical implications that stem from these findings. 2. Minority Threats: Theory and Related Literature Minority threat theories argue that there is a community-level component to courtroom racism. Specifically, the theory posits that White elites view the growth of racial/ethnic minority populations as an imminent threat to their socio-economic dominance (Kane 2003). In an attempt to neutralize this perceived danger, the governing strata will use a variety of social control mechanisms such as policing or imprisonment to “manage” or oppress threatening subpopulations. As a result, defendants adjudicated in counties with large minority communities are expected to face a more punitive judicial environment, with those minorities deemed most dangerous receiving the harshest punishments (Wang & Mears 2010). In addition to positing that minority threats condition individual-level race/ethnicity effects, a number of theorists hypothesize that minority threat effects have a nonlinear structural form (Liska 1992). Keen & Jacob (2009), for instance, suggest that minority population growth initially leads to a tightening of social control mechanisms; however, once the racial/ethnic group is large enough to significantly influence local political outcomes, stringent social control measures begin to relax as the subpopulation asserts its new governing powers. Consequently, these theories predict an inverted U-shaped relationship between county-level racial/ethnic composition and pretrial adjudication severity. Despite the extensive theoretical foundations for a minority threat phenomenon, empirical testing has yielded mixed results. Britt (2000), for instance, finds that the proportion of county ICPSR Bulletin Special Edition 2012 3 Pretrial Release Processing3" " population that self-identifies as Black (i.e., percent Black) is positively and linearly correlated with the likelihood of incarceration, but negatively associated with sentence length. In contrast, Ulmer & Johnson (2004), using the same dataset from a later time period, conclude that neither incarceration decisions nor sentencing lengths are significantly associated with percent Black. These studies, however, may have misspecified the structural form of the minority threat. Kane (2003), for instance, finds evidence of nonlinear associations between percent Hispanic and police deployment patterns. Similarly, Wang & Mears’ (2010) more recent analyses point to curvilinear relationships between minority populations and sentencing severity; importantly, this study also finds that percent Hispanic and percent Black exert opposite effects on sentencing outcomes, alluding to important differences between racial and ethnic threats. While inconsistencies plague the minority threat literature on final sentencing, I was only able to identify two studies that directly tested for minority threat effects on pretrial release outcomes. The first utilizes data from 65 counties in a northeastern state to examine the effects of minority population size on the pre-adjudication detention of juvenile delinquents (Armstrong & Rodriguez 2005). Although results indicate that percent minority positively impacts the likelihood of pretrial incarceration, the fact that the sample of defendants is drawn from a single state and that the criminal justice process clearly differs between juveniles and adults limits the extent to which these findings can be generalized. Moreover, Armstrong & Rodriguez’s (2005) decision to aggregate African Americans, Asians and American Indians into a single minority threat masks the possibility that minority threat effects vary by racial/ethnic group. The second study to test the minority threat hypothesis in the context of pretrial detention is an unpublished doctoral dissertation (Junkhyuk 2009). Junkhyuk uses the State Court Processing Statistics (SCPS) database to test whether racial composition and economic deprivation explain ICPSR Bulletin Special Edition 2012 4 Pretrial Release Processing4" " between-county variation in pretrial detention outcomes. Strikingly, the study fails to find a consistent relationship between minority population size and criminal justice severity: while percent Black and percent Hispanic are positively correlated with the likelihood of being denied bail, percent Black is found to be negatively associated with the amount of bail set for a defendant. These contradictory findings may, however, stem from a number of methodological and theoretical shortcomings. First, the study fails to adequately address the issue of missing data and, as such, may suffer from biased coefficients. More importantly, the study does not test for nonlinear minority threat effects and so may suffer from model misspecification. Thus, a review of the literature on final sentencing and pretrial detention indicates two areas for further research. The first revolves around the lack of contextual predictors in pretrial detention analysis; the second centers on the unresolved debate over racialized social control and the need to extend tests of the minority threat hypothesis to different criminal justice outcomes. The present study exploits the overlap between these two research agendas by examining whether the racial context in which defendants’ are adjudicated influences pretrial release outcomes. Specifically, this paper seeks to (1) test the minority threat hypothesis on pretrial release outcomes, (2) identify the structural form of significant racial/ethnic threat effects, and (3) determine whether Black (Hispanic) threat effects fall hardest on Black (Hispanic) defendants. 3. Data and Variables 3.1 Data To determine the extent to which minority threats impact the pretrial release process, this study merges data drawn from the State Court Processing Statistics (SCPS), 1990-2006 with an array of county-level variables. Since the effects of legal and extralegal sentencing predictors ICPSR Bulletin Special Edition 2012 5 Pretrial Release Processing5" " may vary across crime categories (Schlesinger 2005), the scope of the current analysis is restricted to Black, Hispanic, and White defendants charged with drug felonies in 1998 and 2000. The SCPS data contains detailed information on felony cases adjudicated in large urban U.S. counties. The database is notable for its rich array of data on the demographic characteristics, criminal history, arrest charges, and pretrial release processing of felony defendants. Of course, no dataset is perfect and Schlesinger (2005) highlights three important limitations of SCPS: (1) rural courts are not represented in the sample, (2) the database lac