Three Essays on the Pretrial Process

The pretrial process is an important but often overlooked aspect of criminal justice contact. The decisions and activities that take place between arrest and case resolution both heavily influence case outcomes and constitute important forms of criminal justice contact in themselves. Yet surprisingly few studies have re-visited the pretrial process since the punitive turn of the 1980s and 90s. This dissertation consists of three empirical papers that contribute to an emerging literature analyzing contemporary criminal courts and the pretrial process in the era of mass arrest and incarceration./nThe first paper examines pretrial detention and release patterns. Despite growing interest in bail and pretrial detention among both academic researchers and policymakers, systematic research on pretrial release remains limited. This paper examines bail and pretrial release practices across 75 large US counties from 1990-2009 and look at the contextual correlates of bail regime severity. It finds tremendous intra-county variation in bail practices, as well as a nationwide decline in the use of non-financial release and doubling of bail amounts during this period. This variation is not accounted for by differences in case composition across jurisdictions or over time. Patterns of bail practices are associated with political, socioeconomic, and demographic factors, however. Implications of these findings for future research on bail and pretrial detention are discussed./nThe second paper draws on fieldwork in two California counties to analyze how courts manage access to drug treatment in the context of criminal prosecution. California’s multiple diversion programs channel tens of thousands of people into drug treatment every year, making criminal contact an important point of entry into counseling and medical care for substance abuse and related issues in the state. Drawing on direct observations in courts and interviews with the attorneys, judges, and counselors who staff them, this paper argues that the adversarial structure of the court fundamentally shapes the way treatment is understood and accessed in criminal cases. Attorneys handling these cases are driven by professional mandates to seek particular case outcomes, with prosecutors focused on securing convictions and appropriately punitive sentences, and defense attorneys focused on getting charges dropped and limiting punishment for their clients. While specific practices vary across the two counties I study, treatment decisions in both jurisdictions are based fundamentally on a defendant’s charges and criminal record with little consideration of the nature of a defendant’s substance use or treatment needs. The introduction of drug treatment into criminal case processing was thus less transformative than either supporters or critics suggest, as the priorities of criminal case processing frequently conflict with the ostensible goals of medical interventions, distorting and undermining the therapeutic aspirations of these reforms./nThe final paper examines the often overlooked role of judges in managing misdemeanor cases. While misdemeanors make up more than eighty percent of criminal cases filed in the U.S. each year, much of what we know about how courts process these cases in the modern era comes from studies of large, well-resourced court systems in major U.S. cities. This paper adds to this literature by analyzing misdemeanor courts in a smaller, peri-urban jurisdiction, where more limited resources result in less attorney oversight of misdemeanor cases. Drawing on observations of nearly seven hundred arraignments, it finds that judges play an important role in shaping both pretrial decisions and outcomes in misdemeanor cases. Without attorneys present at arraignments, judges take on elements of both prosecution and defense as they facilitate, discourage, or refuse guilty pleas from defendants in attempts to maintain local norms for case outcomes. This dynamic has surprising implications for defendants in custody. Although pretrial detention is generally seen as a practice that incentivizes guilty pleas, the pretrial detainees I observed were systematically kept from pleading guilty, as they were less likely to be facing the sort of routine cases that judges were willing to resolve with standard sentences at arraignment. While this protects defendants’ due process rights, it may also lead to more extensive forms of informal pretrial punishment.

Advisor: Fligstein, Neil