Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 1 of 15
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:19−cv−01145−JD

ERWIN,_SM

White et al v. Hesse et al Assigned to: Honorable Jodi W. Dishman Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 12/10/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Misty White

represented by Amia L Trigg Covington & Burling LLP − DC 850 10th St NW Washington, DC 20001 202−662−5906 Fax: 202−778−5906 Email: atrigg@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Jeanette Carter American Civil Liberties Union − NY 125 Broad St 18th Flr New York, NY 10004 212−549−2636 Fax: 212−549−2654 Email: tcarter@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis Covington & Burling LLP − LOS ANGELES 1999 Avenue of the Stars Los Angeles, CA 90067 424−332−4800 Fax: 424−332−4749 Email: alewis@cov.com ATTORNEY TO BE NOTICED

Brandon Jerel Buskey American Civil Liberties Union − NY 125 Broad St 18th Flr New York, NY 10004 212−284−7364 Fax: 212−549−2654 Email: bbuskey@aclu.org ATTORNEY TO BE NOTICED

Clayburn T Curtis Overman Legal Group 809 NW 36th St Oklahoma City, OK 73118 405−605−6718 Fax: 405−605−6719 Email: claycurtis@overmanlegal.com ATTORNEY TO BE NOTICED

J Blake Johnson Crowe & Dunlevy−OKC

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 2 of 15
Braniff Building 324 N Robinson Ave Suite 100 Oklahoma City, OK 73102 405−234−3257 Email: Blakejohnson@overmanlegal.com ATTORNEY TO BE NOTICED
Justin R Williams Pignato Cooper Kolker & Roberson PC 119 N Robinson Ave Suite 1120 Oklahoma City, OK 73102 405−606−3333 Email: justinwilliams@overmanlegal.com ATTORNEY TO BE NOTICED
Laura B Cohen Covington & Burling LLP − DC 850 10th St NW Washington, DC 20001 202−662−5222 Fax: 202−778−5222 Email: lcohen@cov.com ATTORNEY TO BE NOTICED
Marta P Cook Covington & Burling LLP − DC 850 10th St NW Washington, DC 20001 202−662−5953 Fax: 202−778−5953 Email: mcook@cov.com ATTORNEY TO BE NOTICED
Megan E Lambert American Civil Liberties Union of Oklahoma 3000 Paseo Dr PO Box 1626 Oklahoma City, OK 73103 405−525−3831 Email: mlambert@acluok.org ATTORNEY TO BE NOTICED
Michael C Redman Neuens Mitchell Bonds PLLC 2021 S Lewis Ave Suite 660 Tulsa, OK 74104 918−749−9331 Fax: 918−749−9336 Email: mredman@mitchellbonds.com ATTORNEY TO BE NOTICED
Ryan D Kiesel ACLU of Oklahoma Foundation PO Box 1626 Oklahoma City, OK 73101 405−525−3831 Fax: 405−524−2296 Email: rkiesel@acluok.org ATTORNEY TO BE NOTICED
Tyler C Box

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 3 of 15

Overman Legal Group 809 NW 36th St Oklahoma City, OK 73118 405−365−4511 Fax: 405−605−6719 Email: tylerbox@overmanlegal.com ATTORNEY TO BE NOTICED

Weston O Watts Fulkerson & Fulkerson 10444 Greenbriar Pl Suite A Oklahoma City, OK 73159 405−691−4949 Fax: 405−691−4595 Email: westonwatts@overmanlegal.com ATTORNEY TO BE NOTICED

Zoe Brennan−Krohn American Civil Liberties Union Foundation − SAN FRANCISCO 39 Drumm St San Francisco, CA 94111 415−343−0769 Fax: 415−395−0950 Email: zbrennan−krohn@aclu.org ATTORNEY TO BE NOTICED

Plaintiff Jermaine Bradford

represented by Amia L Trigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Jeanette Carter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED

Brandon Jerel Buskey (See above for address) ATTORNEY TO BE NOTICED

Clayburn T Curtis (See above for address) ATTORNEY TO BE NOTICED

J Blake Johnson (See above for address) ATTORNEY TO BE NOTICED

Justin R Williams (See above for address) ATTORNEY TO BE NOTICED

Laura B Cohen (See above for address) ATTORNEY TO BE NOTICED

Marta P Cook

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 4 of 15

(See above for address) ATTORNEY TO BE NOTICED

Megan E Lambert (See above for address) ATTORNEY TO BE NOTICED

Michael C Redman (See above for address) ATTORNEY TO BE NOTICED

Ryan D Kiesel (See above for address) ATTORNEY TO BE NOTICED

Tyler C Box (See above for address) ATTORNEY TO BE NOTICED

Weston O Watts (See above for address) ATTORNEY TO BE NOTICED

Zoe Brennan−Krohn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Janara Musgrave

represented by Amia L Trigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Jeanette Carter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED

Brandon Jerel Buskey (See above for address) ATTORNEY TO BE NOTICED

Clayburn T Curtis (See above for address) ATTORNEY TO BE NOTICED

J Blake Johnson (See above for address) ATTORNEY TO BE NOTICED

Justin R Williams (See above for address) ATTORNEY TO BE NOTICED

Laura B Cohen (See above for address) ATTORNEY TO BE NOTICED

Marta P Cook (See above for address)

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 5 of 15

ATTORNEY TO BE NOTICED

Megan E Lambert (See above for address) ATTORNEY TO BE NOTICED

Michael C Redman (See above for address) ATTORNEY TO BE NOTICED

Ryan D Kiesel (See above for address) ATTORNEY TO BE NOTICED

Tyler C Box (See above for address) ATTORNEY TO BE NOTICED

Weston O Watts (See above for address) ATTORNEY TO BE NOTICED

Zoe Brennan−Krohn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Landon Proudfit

represented by Amia L Trigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Jeanette Carter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED

Brandon Jerel Buskey (See above for address) ATTORNEY TO BE NOTICED

Clayburn T Curtis (See above for address) ATTORNEY TO BE NOTICED

J Blake Johnson (See above for address) ATTORNEY TO BE NOTICED

Justin R Williams (See above for address) ATTORNEY TO BE NOTICED

Laura B Cohen (See above for address) ATTORNEY TO BE NOTICED

Marta P Cook (See above for address) ATTORNEY TO BE NOTICED

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 6 of 15

Plaintiff Bradley Barber, Jr

Megan E Lambert (See above for address) ATTORNEY TO BE NOTICED
Michael C Redman (See above for address) ATTORNEY TO BE NOTICED
Ryan D Kiesel (See above for address) ATTORNEY TO BE NOTICED
Tyler C Box (See above for address) ATTORNEY TO BE NOTICED
Weston O Watts (See above for address) ATTORNEY TO BE NOTICED
Zoe Brennan−Krohn (See above for address) ATTORNEY TO BE NOTICED
represented by Amia L Trigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Twyla Jeanette Carter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED
Brandon Jerel Buskey (See above for address) ATTORNEY TO BE NOTICED
Clayburn T Curtis (See above for address) ATTORNEY TO BE NOTICED
J Blake Johnson (See above for address) ATTORNEY TO BE NOTICED
Justin R Williams (See above for address) ATTORNEY TO BE NOTICED
Laura B Cohen (See above for address) ATTORNEY TO BE NOTICED
Marta P Cook (See above for address) ATTORNEY TO BE NOTICED

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 7 of 15

Megan E Lambert (See above for address) ATTORNEY TO BE NOTICED

Michael C Redman (See above for address) ATTORNEY TO BE NOTICED

Ryan D Kiesel (See above for address) ATTORNEY TO BE NOTICED

Tyler C Box (See above for address) ATTORNEY TO BE NOTICED

Weston O Watts (See above for address) ATTORNEY TO BE NOTICED

Zoe Brennan−Krohn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dakota Kappus

represented by Amia L Trigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Jeanette Carter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED

Brandon Jerel Buskey (See above for address) ATTORNEY TO BE NOTICED

Clayburn T Curtis (See above for address) ATTORNEY TO BE NOTICED

J Blake Johnson (See above for address) ATTORNEY TO BE NOTICED

Justin R Williams (See above for address) ATTORNEY TO BE NOTICED

Laura B Cohen (See above for address) ATTORNEY TO BE NOTICED

Marta P Cook (See above for address) ATTORNEY TO BE NOTICED

Megan E Lambert

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 8 of 15

(See above for address) ATTORNEY TO BE NOTICED

Michael C Redman (See above for address) ATTORNEY TO BE NOTICED

Ryan D Kiesel (See above for address) ATTORNEY TO BE NOTICED

Tyler C Box (See above for address) ATTORNEY TO BE NOTICED

Weston O Watts (See above for address) ATTORNEY TO BE NOTICED

Zoe Brennan−Krohn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Dakota Kappus on behalf of themselves and all others similarly situated

represented by Amia L Trigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Jeanette Carter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED

Brandon Jerel Buskey (See above for address) ATTORNEY TO BE NOTICED

Clayburn T Curtis (See above for address) ATTORNEY TO BE NOTICED

J Blake Johnson (See above for address) ATTORNEY TO BE NOTICED

Justin R Williams (See above for address) ATTORNEY TO BE NOTICED

Laura B Cohen (See above for address) ATTORNEY TO BE NOTICED

Marta P Cook (See above for address) ATTORNEY TO BE NOTICED

Megan E Lambert (See above for address)

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 9 of 15

ATTORNEY TO BE NOTICED

Michael C Redman (See above for address) ATTORNEY TO BE NOTICED

Ryan D Kiesel (See above for address) ATTORNEY TO BE NOTICED

Tyler C Box (See above for address) ATTORNEY TO BE NOTICED

Weston O Watts (See above for address) ATTORNEY TO BE NOTICED

Zoe Brennan−Krohn (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Oklahoma State Conference NAACP

represented by Amia L Trigg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Jeanette Carter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron M Lewis (See above for address) ATTORNEY TO BE NOTICED

Brandon Jerel Buskey (See above for address) ATTORNEY TO BE NOTICED

Clayburn T Curtis (See above for address) ATTORNEY TO BE NOTICED

J Blake Johnson (See above for address) ATTORNEY TO BE NOTICED

Justin R Williams (See above for address) ATTORNEY TO BE NOTICED

Laura B Cohen (See above for address) ATTORNEY TO BE NOTICED

Marta P Cook (See above for address) ATTORNEY TO BE NOTICED

Megan E Lambert (See above for address) ATTORNEY TO BE NOTICED

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 10 of 15

Michael C Redman (See above for address) ATTORNEY TO BE NOTICED
Ryan D Kiesel (See above for address) ATTORNEY TO BE NOTICED
Tyler C Box (See above for address) ATTORNEY TO BE NOTICED
Weston O Watts (See above for address) ATTORNEY TO BE NOTICED
Zoe Brennan−Krohn (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Paul Hesse Hon., In his official capacity as presiding District Court Judge
Defendant Jack McCurdy Hon., In his official capacity as District Court Judge

represented by Devan A Pederson Attorney General's Ofc−NE 21STREET−OKC 313 NE 21st St Oklahoma City, OK 73105 405−521−3921 Fax: 405−521−4518 Email: devan.pederson@oag.ok.gov ATTORNEY TO BE NOTICED
Erin M Moore Erin M Moore PC 313 NE 21st Street Oklahoma Attorney General's Office Oklahoma City, OK 73105 405−595−6880 Email: erin.moore@oag.ok.gov ATTORNEY TO BE NOTICED
Stefanie E Lawson Attorney General's Ofc−NE 21STREET−OKC 313 NE 21st St Oklahoma City, OK 73105 405−521−4274 Fax: 405−521−4518 Email: stefanie.lawson@oag.ok.gov ATTORNEY TO BE NOTICED
represented by Devan A Pederson (See above for address) ATTORNEY TO BE NOTICED
Erin M Moore (See above for address) ATTORNEY TO BE NOTICED
Stefanie E Lawson

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 11 of 15

(See above for address) ATTORNEY TO BE NOTICED

Defendant
Barbara Hatfield Hon., in her official capacity as Special District Judge in the Canadian County District Court

represented by Devan A Pederson (See above for address) ATTORNEY TO BE NOTICED
Erin M Moore (See above for address) ATTORNEY TO BE NOTICED

Stefanie E Lawson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Charles Gass Hon., in his official capacity as Special District Judge in the Canadian County District Court

represented by Devan A Pederson (See above for address) ATTORNEY TO BE NOTICED
Erin M Moore (See above for address) ATTORNEY TO BE NOTICED

Stefanie E Lawson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Khristan Strubhar Hon., in her official capacity as Special District Judge in the Canadian County District Court

represented by Devan A Pederson (See above for address) ATTORNEY TO BE NOTICED
Erin M Moore (See above for address) ATTORNEY TO BE NOTICED

Stefanie E Lawson (See above for address) ATTORNEY TO BE NOTICED

Defendant
Canadian County District Court 26th Judicial District

represented by Devan A Pederson (See above for address) ATTORNEY TO BE NOTICED

Erin M Moore (See above for address) ATTORNEY TO BE NOTICED

Stefanie E Lawson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/10/2019

# Docket Text
1 COMPLAINT against Canadian County District Court 26th Judicial District, Charles Gass, Barbara Hatfield, Paul Hesse, Jack McCurdy, Khristan Strubhar filed by Landon Proudfit, Oklahoma State Conference NAACP, Misty White, Dakota Kappus, Bradley Barber, Jr, Jermaine Bradford, Janara Musgrave, Dakota Kappus(on behalf of

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 12 of 15

12/10/2019 12/10/2019 12/10/2019 12/10/2019 12/10/2019 12/10/2019
12/10/2019 12/10/2019 12/10/2019
12/10/2019
12/10/2019
12/10/2019
12/10/2019

themselves and all others similarly situated). (Attachments: # 1 Exhibit 1 − The Heavy Costs of High Bail, # 2 Exhibit 2 − Unsecured Bonds, The As Effective and Most Efficient Pretrial Release Option, # 3 Exhibit 3 − The Hidden Costs of Pretrial Detention, # 4 Civil Cover Sheet) (nv). Modified on 12/11/2019 to add exhibits upon counsel's request (nv). (Entered: 12/10/2019)
2 Summons Issued Electronically as to Canadian County District Court 26th Judicial District, Charles Gass, Barbara Hatfield, Paul Hesse, Jack McCurdy, Khristan Strubhar. (nv) (Entered: 12/10/2019)
PAYMENT FOR A CIVIL CASE CIV−19−1145−R Filing fee $ 400, receipt number 1087−3053414. (Lambert, Megan) (Entered: 12/10/2019)
3 ENTRY of Appearance by Megan E Lambert on behalf of All Plaintiffs (Lambert, Megan) (Entered: 12/10/2019)
4 ENTRY of Appearance by Michael C Redman on behalf of All Plaintiffs (Redman, Michael) (Entered: 12/10/2019)
5 MOTION to Certify Class by All Plaintiffs. (Lambert, Megan) (Entered: 12/10/2019)
6 STRICKEN BRIEF IN SUPPORT re 5 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C−1, # 5 Exhibit D, # 6 Exhibit D−1, # 7 Exhibit E, # 8 Exhibit E−1, # 9 Exhibit F, # 10 Exhibit F−1, # 11 Exhibit G, # 12 Exhibit G−1, # 13 Exhibit H, # 14 Exhibit H−1, # 15 Exhibit I, # 16 Exhibit J, # 17 Exhibit K, # 18 Exhibit L, # 19 Exhibit M, # 20 Exhibit N)(Lambert, Megan) (Entered: 12/10/2019)
7 CERTIFICATE OF SERVICE by Plaintiffs Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus, Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White re 4 Entry of Appearance of Michael C Redman (Redman, Michael) (Entered: 12/10/2019)
8 CERTIFICATE OF SERVICE by Plaintiffs Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus, Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White re 3 Entry of Appearance Megan Lambert (Lambert, Megan) (Entered: 12/10/2019)
9 STRICKEN MOTION for Leave to Appear Pro Hac Vice Marta P. Cook Filing fee $ 50, receipt number 1087−3053479 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White. (Attachments: # 1 Attachment)(Redman, Michael) (Entered: 12/10/2019)
10 MOTION for Leave to Appear Pro Hac Vice Zoe Brennan−Krohn Filing fee $ 50, receipt number 1087−3053480 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White. (Attachments: # 1 Attachment Application)(Redman, Michael) (Entered: 12/10/2019)
11 MOTION for Leave to Appear Pro Hac Vice Claudia Center Filing fee $ 50, receipt number 1087−3053481 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White. (Attachments: # 1 Attachment Application)(Redman, Michael) (Entered: 12/10/2019)
12 MOTION for Leave to Appear Pro Hac Vice Laura Beth Cohen Filing fee $ 50, receipt number 1087−3053482 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White. (Attachments: # 1 Attachment Application)(Redman, Michael) (Entered: 12/10/2019)
13 MOTION for Leave to Appear Pro Hac Vice Aaron M. Lewis Filing fee $ 50, receipt number 1087−3053483 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White.

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 13 of 15

12/10/2019 12/10/2019 12/10/2019 12/11/2019 12/11/2019 12/11/2019 12/11/2019
12/11/2019 12/11/2019 12/11/2019

(Attachments: # 1 Attachment Application)(Redman, Michael) (Entered: 12/10/2019)
14 MOTION for Leave to Appear Pro Hac Vice Amia L. Trigg Filing fee $ 50, receipt number 1087−3053484 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White. (Attachments: # 1 Attachment Application)(Redman, Michael) (Entered: 12/10/2019)
15 MOTION for Leave to Appear Pro Hac Vice Twyla Carter Filing fee $ 50, receipt number 1087−3053485 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White. (Attachments: # 1 Attachment Application)(Redman, Michael) (Entered: 12/10/2019)
16 MOTION for Leave to Appear Pro Hac Vice Brandon J.Buskey Filing fee $ 50, receipt number 1087−3053486 by Bradley Barber, Jr, Jermaine Bradford, Dakota Kappus, Dakota Kappus(on behalf of themselves and all others similarly situated), Janara Musgrave, Oklahoma State Conference NAACP, Landon Proudfit, Misty White. (Attachments: # 1 Attachment Application)(Redman, Michael) (Entered: 12/10/2019)
NOTICE from the Court 6 Brief, STRICKEN, due to counsel's failure to comply with ECF Policies and Procedures Manual, Section II(A)(4)(a). (nv) (Entered: 12/11/2019)
NOTICE from the Court 9 MOTION for Leave to Appear Pro Hac Vice Marta P. Cook Filing fee $ 50, receipt number 1087−3053479, STRICKEN. The motion and application appear to be a duplicate of Doc. 10. Counsel to re−file using correct document for Mr. Cook. (nv) (Entered: 12/11/2019)
17 MOTION for Leave to Appear Pro Hac Vice Marta P. Cook by All Plaintiffs. (Attachments: # 1 Attachment Application PHV Marta Cook)(Redman, Michael) (Entered: 12/11/2019)
18 STRICKEN BRIEF IN SUPPORT re 5 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Open Justice Oklahoma Bail Fact Sheet, # 2 Exhibit 2 − Administrative Order re Amended Bail Schedule, # 3 Exhibit 3 − Declaration of Misty White, # 4 Exhibit 4 − Typed Declaration of Misty White, # 5 Exhibit 5 − Declaration of Janara Musgrave, # 6 Exhibit 6 − Typed Declaration of Janara Musgrave, # 7 Exhibit 7 − Declaration of Jermaine Bradford, # 8 Exhibit 8 − Typed Declaration of Jermaine Bradford, # 9 Exhibit 9 − Declaration of Landon Proudfit, # 10 Exhibit 10 − Typed Declaration of Landon Proudfit, # 11 Exhibit 11 − Declaration of Bradley Barber, Jr, # 12 Exhibit 12 − Typed Declaration of Bradley Barber, Jr, # 13 Exhibit 13 − Declaration of Dakota Kappus, # 14 Exhibit 14 − Typed Declaration of Dakota Kappus, # 15 Exhibit 15 − Canadian County Application for Appointed Couns, # 16 Exhibit 16 − Trigg Declaration, # 17 Exhibit 17 − Carter Declaration, # 18 Exhibit 18 − Center Declaration, # 19 Exhibit 19 − Lambert Declaration, # 20 Exhibit 20 − Johnson Declaration)(Lambert, Megan) (Entered: 12/11/2019)
NOTICE from the Court 18 Brief, STRICKEN, exhibits still show alphabetical descriptions within the coversheets. Counsel to re−file. (nv) (Entered: 12/11/2019)
19 ORDER granting 10 Motion to Appear Pro Hac Vice ; granting 11 Motion to Appear Pro Hac Vice ; granting 12 Motion to Appear Pro Hac Vice ; granting 13 Motion to Appear Pro Hac Vice ; granting 14 Motion to Appear Pro Hac Vice ; granting 15 Motion to Appear Pro Hac Vice ; granting 16 Motion to Appear Pro Hac Vice ; granting 17 Motion to Appear Pro Hac Vice. Signed by Honorable David L. Russell on 12/11/19. (nv) (Entered: 12/11/2019)
20 BRIEF IN SUPPORT re 5 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Open Justice Oklahoma, Bail Fact Sheet, # 2 Exhibit 2 − Administrative Order re Amended Bail Schedule, # 3 Exhibit 3 − Misty White Declaration, # 4 Exhibit 4 − White Typed Declaration, # 5 Exhibit 5 − Jermaine Bradford Declaration, # 6 Exhibit 6 − Bradford Typed Declaration, # 7 Exhibit 7 − Janara Musgrave Declaration, # 8 Exhibit 8 − Musgrave Typed Declaration, # 9 Exhibit 9 − Landon Proudfit Declaration, # 10 Exhibit 10 − Proudfit Typed Declaration, # 11 Exhibit 11 − Bradley Barber, Jr Declaration, # 12 Exhibit 12 − Barber Typed Declaration, # 13 Exhibit 13 − Dakota Kappus Declaration, # 14 Exhibit 14 − Kappus Typed Declaration, # 15 Exhibit 15 − Canadian County Application for

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 14 of 15

12/13/2019 12/13/2019 12/19/2019
12/19/2019
12/19/2019
12/19/2019
12/19/2019
12/19/2019
12/24/2019 12/26/2019 12/26/2019 12/26/2019 12/31/2019 01/15/2020 01/22/2020
01/22/2020

Appointed Counsel, # 16 Exhibit 16 − Trigg Declaration, # 17 Exhibit 17 − Carter Declaration, # 18 Exhibit 18 − Center Declaration, # 19 Exhibit 19 − Lambert Declaration, # 20 Exhibit 20 − Johnson Declaration)(Lambert, Megan) (Entered: 12/11/2019)
21 ENTRY of Appearance by Twyla Jeanette Carter on behalf of All Plaintiffs (Carter, Twyla) (Entered: 12/13/2019)
22 ENTRY of Appearance by Brandon Jerel Buskey on behalf of All Plaintiffs (Buskey, Brandon) (Entered: 12/13/2019)
23 SUMMONS Returned Executed by Landon Proudfit, Oklahoma State Conference NAACP, Misty White, Dakota Kappus, Bradley Barber, Jr, Jermaine Bradford, Janara Musgrave, Dakota Kappus(on behalf of themselves and all others similarly situated). Canadian County District Court 26th Judicial District served on 12/12/2019. (Redman, Michael) (Entered: 12/19/2019)
24 SUMMONS Returned Executed by Landon Proudfit, Oklahoma State Conference NAACP, Misty White, Dakota Kappus, Bradley Barber, Jr, Jermaine Bradford, Janara Musgrave, Dakota Kappus(on behalf of themselves and all others similarly situated). Charles Gass served on 12/12/2019. (Redman, Michael) (Entered: 12/19/2019)
25 SUMMONS Returned Executed by Landon Proudfit, Oklahoma State Conference NAACP, Misty White, Dakota Kappus, Bradley Barber, Jr, Jermaine Bradford, Janara Musgrave, Dakota Kappus(on behalf of themselves and all others similarly situated). Barbara Hatfield served on 12/12/2019. (Redman, Michael) (Entered: 12/19/2019)
26 SUMMONS Returned Executed by Landon Proudfit, Oklahoma State Conference NAACP, Misty White, Dakota Kappus, Bradley Barber, Jr, Jermaine Bradford, Janara Musgrave, Dakota Kappus(on behalf of themselves and all others similarly situated). Paul Hesse served on 12/12/2019. (Redman, Michael) (Entered: 12/19/2019)
27 SUMMONS Returned Executed by Landon Proudfit, Oklahoma State Conference NAACP, Misty White, Dakota Kappus, Bradley Barber, Jr, Jermaine Bradford, Janara Musgrave, Dakota Kappus(on behalf of themselves and all others similarly situated). Jack McCurdy served on 12/12/2019. (Redman, Michael) (Entered: 12/19/2019)
28 SUMMONS Returned Executed by Landon Proudfit, Oklahoma State Conference NAACP, Misty White, Dakota Kappus, Bradley Barber, Jr, Jermaine Bradford, Janara Musgrave, Dakota Kappus(on behalf of themselves and all others similarly situated). Khristan Strubhar served on 12/12/2019. (Redman, Michael) (Entered: 12/19/2019)
29 ORDER REASSIGNING CASE. Case reassigned to Honorable Jodi W. Dishman for all further proceedings. Honorable David L. Russell no longer assigned to case. Signed by Honorable David L. Russell on 12/24/19. (jw) (Entered: 12/24/2019)
30 ENTRY of Appearance by Stefanie E Lawson on behalf of All Defendants (Lawson, Stefanie) (Entered: 12/26/2019)
31 UNOPPOSED MOTION for Extension of Time to File Responsive Pleading by All Defendants. (Lawson, Stefanie) (Entered: 12/26/2019)
32 ENTRY of Appearance by Erin M Moore on behalf of All Defendants (Moore, Erin) (Entered: 12/26/2019)
33 ORDER granting 31 Motion for Extension of Time to File. See order for details. Signed by Honorable Jodi W. Dishman on 12/31/19. (nv) Modified on 1/2/2020 to correct docket text (nv). (Entered: 12/31/2019)
34 ENTRY of Appearance by Devan A Pederson on behalf of All Defendants (Pederson, Devan) (Entered: 01/15/2020)
35 MOTION to Dismiss and Brief in Support by Canadian County District Court 26th Judicial District. (Attachments: # 1 Attachment Opinion − Harper v. Woodward Cnty Dist Ct, # 2 Attachment Opinion − Re v. Vistas)(Lawson, Stefanie) (Entered: 01/22/2020)
36 MOTION to Dismiss and Brief in Support by Charles Gass, Barbara Hatfield, Paul Hesse, Jack McCurdy, Khristan Strubhar. (Attachments: # 1 Exhibit 1 − Admin Order

Case: 5:19-cv-1145 As of: 05/07/2020 05:17 PM CDT 15 of 15

01/30/2020 01/30/2020 01/30/2020 01/30/2020 02/02/2020
02/12/2020 02/12/2020 02/19/2020
02/19/2020
02/24/2020 03/04/2020

re Amended Bail Schedule, # 2 Attachment Hyland v Davis (unpublished case), # 3 Attachment Walker v Mohiuddin (unpublished case))(Lawson, Stefanie) (Entered: 01/22/2020)
37 ENTRY of Appearance by Marta P Cook on behalf of All Plaintiffs (Cook, Marta) (Entered: 01/30/2020)
38 ENTRY of Appearance by Laura B Cohen on behalf of All Plaintiffs (Cohen, Laura) (Entered: 01/30/2020)
39 ENTRY of Appearance by Amia L Trigg on behalf of All Plaintiffs (Trigg, Amia) (Entered: 01/30/2020)
40 ENTRY of Appearance by Aaron M Lewis on behalf of All Plaintiffs (Lewis, Aaron) (Entered: 01/30/2020)
41 NOTICE FROM THE COURT. Available on the website for the United States District Court for the Western District of Oklahoma, under "Rules & Procedures, Chambers Rules," are the following that are applicable in civil cases in front of Judge Dishman: (1) Chamber Procedures for Civil Cases (issued 1−28−2020) and (2) Civil Cases: Guidelines for Protective Orders on Confidentiality, Sealing Documents, and Redactions (issued 1−29−2020). Parties are expected to comply with these rules for all filings and proceedings going forward. The Court intends to strike filings that fail to comply with these rules. (nv) (Entered: 02/02/2020)
42 RESPONSE in Opposition re 36 MOTION to Dismiss and Brief in Support filed by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 − Declaration of Frankie Lee Adair, # 2 Exhibit OIDS Application)(Trigg, Amia) (Entered: 02/12/2020)
43 RESPONSE in Opposition re 35 MOTION to Dismiss and Brief in Support filed by Janara Musgrave, Misty White. (Trigg, Amia) (Entered: 02/12/2020)
44 REPLY to Response to Motion re 35 MOTION to Dismiss and Brief in Support filed by Canadian County District Court 26th Judicial District. (Attachments: # 1 Attachment Hines v. Okla. − Unpublished Opin., # 2 Attachment Agrawal v. Courts of Okla. − Unpublished Opin., # 3 Attachment Ames v. Banther − Unpublished Opin., # 4 Attachment McCadden by McCadden v. City of Flint − Unpublished Opin., # 5 Attachment Grider v. City of Aurora − Unpublished Opin.)(Lawson, Stefanie) (Entered: 02/19/2020)
45 REPLY to Response to Motion re 36 MOTION to Dismiss and Brief in Support filed by Charles Gass, Barbara Hatfield, Paul Hesse, Jack McCurdy, Khristan Strubhar. (Attachments: # 1 Exhibit 1 − Administrative Order, # 2 Attachment Dawson v. Bd. of Cnty. Comm'rs − Unpublished Opin., # 3 Attachment Little v. Frederick − Unpublished Opin., # 4 Attachment Cooper v. Jones − Unpublished Opin.)(Lawson, Stefanie) (Entered: 02/19/2020)
46 ENTRY of Appearance by Zoe Brennan−Krohn on behalf of All Plaintiffs (Brennan−Krohn, Zoe) (Entered: 02/24/2020)
47 NOTICE (other) by All Plaintiffs of Supplemental Authority (Attachments: # 1 Attachment Supplemental Authority)(Carter, Twyla) (Entered: 03/04/2020)

 
 Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

[1] MISTY WHITE,

)

[2] JERMAINE BRADFORD,

)

[3] JANARA MUSGRAVE,

)

[4] LANDON PROUDFIT,

)

[5] BRADLEY BARBER, JR., and

)

[6] DAKOTA KAPPUS,

)

)

On behalf of themselves and all

)

others similarly situated, and

)

)

[7] OKLAHOMA STATE

)

CONFERENCE, NAACP,

)

)

Plaintiffs,

)

)

v.

)

)

[1] HON. PAUL HESSE, in his official

)

capacity as presiding District Court

)

Judge,

)

[2] HON. JACK MCCURDY,

)

in his official capacity as District Court

)

Judge,

)

[3] HON. BARBARA HATFIELD,

)

[4] HON. CHARLES GASS,

)

[5] HON. KHRISTAN STRUBHAR, in their )

official capacities as Special District

)

Judges in the Canadian County District

)

Court, and

)

[6] CANADIAN COUNTY DISTRICT

)

COURT, 26TH JUDICIAL DISTRICT,

)

)

Defendants.

)

______________________________________ )

Case No. _C_I_V_-_1_9_-_1_1_4_5_-R (Class Action)
Hon. _______________

CLASS ACTION COMPLAINT

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 2 of 56
INTRODUCTORY STATEMENT 1. Impoverished individuals in Canadian County are routinely jailed because they cannot afford bail. Meanwhile, similarly situated individuals who can afford bail are routinely released—sometimes without even having to wait to appear before a judge. This unconstitutional discrimination against indigent arrestees is the result of the Canadian County District Court’s policy and practice of imposing unaffordable bail without making any inquiry into an arrestee’s ability to pay, based solely on amounts set forth in a published bail schedule. As a result, many arrestees in Canadian County are held in custody pending trial, subject to bail amounts that they cannot afford to pay. 2. These bail terms operate as de facto orders for pretrial detention, yet the Canadian County District Court, through its Special District Judges, set them without any of the findings or procedures that the Constitution requires before a court is permitted to detain a presumptively innocent person prior to trial. These constitutional requirements include a substantive finding on the record that detention is the only adequate option to address an arrestee’s risk of flight or danger to the community. The Constitution further requires procedural protections to ensure the accuracy of this substantive finding, including that the presiding court must conduct a meaningful, individualized inquiry into: (A) whether the arrestee poses an unmanageable flight risk or danger to the community if released before trial, and (B) whether non-financial release conditions could adequately address any such risks or dangers. The Canadian County District Court, through its Special District Judges, also sets bail and holds pretrial proceedings without any

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 3 of 56
consideration of arrestees’ disabilities or appropriate reasonable modifications, in violation of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.
3. In Canadian County, most arrestees are initially detained subject to bail amounts established in a published bail schedule and imposed either by order of a Special District Judge, if an individual is arrested under a warrant, or by jail officials, if an individual is arrested without a warrant. These initial determinations are made without any evaluation of the arrestee’s ability to pay the bail amount imposed and without any evaluation of whether the arrestee has disabilities and is entitled to accommodations. If an arrestee posts the bail amount set forth in the schedule, she is often released within hours of her arrest, without even having to wait to appear before a judge. Those who cannot are detained until at least their first appearance before a judge—and often much longer—even if they do not pose a risk of flight or an unmanageable danger to the community.
4. For most arrestees, bail is set at their initial appearance (or arraignment if they have been formally charged) because they cannot afford the initial bail amount. Special District Judges preside over these proceedings, which are conducted by videoconference from the Special District Judge’s chambers. Indigent defendants are not represented by counsel during these hearings. The Special District Judges do not hear arguments about whether bail is affordable or whether pretrial detention is warranted. And they rarely reduce the bail amounts imposed pursuant to the published bail schedule; more often, they increase them. In either case, it is the policy and practice of the Special District Judges not to inform an arrestee that her ability to pay is relevant to the bail
3

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 4 of 56
determination, let alone to accept evidence, make findings based on clear and convincing evidence related to the arrestee’s ability to pay, or provide disability-related modifications.
5. A person who cannot afford bail and requires court-appointed counsel must wait—often weeks—to request that appointment. They must continue to wait until they actually receive and meet a lawyer before they can request a reduction of the bail amount. As a result, many people who present no danger to the community and no risk of fleeing prosecution are held in custody for weeks or months awaiting trial, solely because they cannot pay the unaffordable bail amount imposed as a result of Defendants’ policies and practices.
6. In addition to violating well-established constitutional guarantees of due process and equal protection, Defendants’ policies and practices violate the ADA and Section 504 of the Rehabilitation Act. Many arrestees have disabilities, entitling them not only to constitutional protections but also to the protections of the ADA and Rehabilitation Act. Many cannot afford bail, including those who rely on poverty-level Supplemental Security Income (SSI), based on their disabilities. Arrestees with disabilities who cannot afford their bail are entitled to pretrial release when they pose no danger to the community and no risk of flight, or when any such dangers and risks can be ameliorated through reasonable modifications such as reminders for scheduled court appearances. Some disabled arrestees cannot represent themselves in court proceedings, particularly when such sessions are conducted via videoconference. Individuals with disabilities require counsel to have an equal opportunity in court, but they are routinely
4

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 5 of 56
denied court-appointed lawyers. Arrestees with disabilities are often denied the reasonable modifications they need to have an equal opportunity to participate in pretrial proceedings, such as extra time, quiet, slow and meaningful proceedings, or documents and explanations in simple English. As a result of these policies and practices, arrestees with disabilities face not only the constitutional denials of wealth-based detention described above, but the additional barriers of proceedings that fail to account for disability and that do not allow them equal participation and access to freedom.
7. The individually named Plaintiffs have been detained since their arrests and remain in jail because they cannot afford to purchase their release. The Special District Judges set bail in Plaintiffs’ cases following cursory initial appearances or summary arraignments that many of them could barely understand, and at which the Special District Judges did not ask questions about their incomes, expenses, or abilities to pay before setting bail amounts. No one was provided with a court-appointed attorney, and all appeared without counsel. During each day that they remain in jail, Plaintiffs have already lost, or risk losing, their jobs, their homes, their health, and their ability to support and take care of their children and other loved ones, among other injuries.
8. Plaintiff Oklahoma State Conference, NAACP (“the NAACP of Oklahoma”), through one of its members, attempted to access an in-custody arraignment proceeding at the Canadian County District Court. However, the NAACP of Oklahoma was denied access and was told the hearing was not open to the public. In stark contrast to how initial appearances and arraignments are conducted in other parts of the country, it is the policy and practice of Defendants to conduct them hidden from public scrutiny.
5

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 6 of 56
9. The individually named Plaintiffs, on behalf of the many other arrestees subjected to Defendants’ unlawful pretrial detention policies and practices, challenge the routine use of unaffordable bail to detain arrestees, including arrestees with disabilities, without a hearing at which an arrestee’s ability to pay is considered and without a lawyer to safeguard the arrestee’s constitutional and statutory rights, and without modifications required under disability rights laws. This wealth-based pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution, as well as the right to counsel protected under the Sixth Amendment, as courts around the country have held in analogous situations. The pretrial detention system further violates the ADA and the Rehabilitation Act.
10. Plaintiff NAACP of Oklahoma, on behalf of its members, challenges Defendants’ policy and practice of conducting all in-custody initial appearances and arraignments in judicial chambers, behind closed doors, making the proceedings inaccessible to the public. Plaintiff NAACP of Oklahoma has a First Amendment right to access hearings at which bail is determined. Defendants have no legitimate reason for denying Plaintiff NAACP of Oklahoma—and the rest of the community—the ability to access initial appearances and arraignments for people held in jail.
JURISDICTION AND VENUE 11. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. § 2201 et seq., 42 U.S.C. § 12131, et seq., 29 U.S.C. § 794, and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1343 (civil rights jurisdiction).
6

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 7 of 56
12. Venue in this Court is proper pursuant to 28 U.S.C. § 1391, because Canadian County, and the Canadian County District Court are both located within the district, and a substantial part (if not all) of the events giving rise to the Plaintiffs’ claims occurred or will occur in this district.
PARTIES 13. Plaintiff Misty White is a 40-year-old Native American woman and a member of the Cherokee Nation. She is a resident of Canadian County. She brings this suit on behalf of herself as an individual and on behalf of a class of similarly situated people subjected to Defendants’ unlawful pretrial detention scheme, including a subclass of similarly situated people with disabilities subject to Defendants’ unlawful pretrial detention scheme. Ms. White has severe depression, severe anxiety, bipolar disorder, post-traumatic stress disorder (“PTSD”), and a painful condition called interstitial cystitis. She is a person with a disability under the ADA and Section 504 of the Rehabilitation Act. She cannot afford to pay the cash bail imposed in her case, and she cannot afford counsel. Her arraignment was conducted via videoconference. Her arraignment was not open to the public. She did not have defense counsel to represent her at arraignment and she did not receive any accommodations for her disabilities. She has not received any of the services or medications she requires to manage her disabilities and her disability symptoms have worsened during her time in jail. 14. Plaintiff Jermaine Bradford is a 37-year-old black man and a resident of Canadian County. He brings this suit on behalf of himself as an individual and on behalf of a class of similarly situated people subjected to Defendants’ unconstitutional pretrial
7

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 8 of 56
detention scheme. His arraignment was conducted via videoconference in what appeared to be a judge’s chambers. He did not have defense counsel to represent him. His arraignment was not open to the public. He cannot afford to pay the cash bail amount imposed in his case, and he cannot afford to hire private counsel.
15. Plaintiff Janara Musgrave is a 47-year-old white woman and a resident of Canadian County. She brings this suit on behalf of herself as an individual and on behalf of a class of similarly situated people subjected to Defendants’ unlawful pretrial detention scheme, including a subclass of similarly situated people with disabilities subject to Defendants’ unlawful pretrial detention scheme. She has bipolar disorder I, anxiety disorder, and PTSD. Ms. Musgrave is a person with a disability under the ADA and Section 504 of the Rehabilitation Act. She cannot afford to pay the cash bail imposed in her case, and she cannot afford counsel. Her arraignment was conducted via videoconference. Her arraignment was not open to the public. She did not have defense counsel to represent her at her arraignment and did not receive any accommodations for her disabilities. She could not meaningfully participate in her arraignment because of the lack of counsel and disability accommodations. She has not received any services or medications to manage her disabilities, and her health has worsened while in jail.
16. Plaintiff Landon Proudfit is a 35-year-old white man and a resident of Canadian County. He brings this suit on behalf of himself as an individual and on behalf of a class of similarly situated people subjected to Defendants’ unconstitutional pretrial detention scheme. His arraignment was conducted via videoconference in what appeared to be a judge’s office. Mr. Proudfit did not have defense counsel to represent him. His
8

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 9 of 56
arraignment was not open to the public. He cannot afford to pay the cash bail imposed in his case, and he cannot afford counsel.
17. Plaintiff Bradley Barber Jr. is a 26-year-old white man and a resident of Canadian County. He brings this suit on behalf of himself as an individual and on behalf of a class of similarly situated people subjected to Defendants’ unconstitutional pretrial detention scheme. His arraignment was conducted via videoconference in what appeared to be a judge’s office. He did not have defense counsel to represent him. Mr. Barber’s arraignment was not open to the public. He cannot afford to pay the cash bail amount imposed in his case, and he cannot afford to hire private counsel.
18. Plaintiff Dakota Kappus is a 23-year-old white man and a resident of Canadian County. He brings this suit on behalf of himself as an individual and on behalf of a class of similarly situated people subjected to Defendants’ unconstitutional pretrial detention scheme. His arraignment was conducted via videoconference in what appeared to be a judge’s chambers. He did not have defense counsel to represent him. His arraignment was not open to the public. Mr. Kappus cannot afford to pay the cash bail amount imposed in his case, and he cannot afford to hire private counsel.
19. Plaintiff NAACP of Oklahoma is a state affiliate of the National Association for the Advancement of Colored People (“NAACP”) and is composed of all NAACP branches and chapters located in the State of Oklahoma. The principal objectives of the NAACP and its local affiliates are to ensure the political, educational, social and economic equality of all citizens; to achieve equality of rights and eliminate race prejudice among the citizens of the United States; to remove all barriers of racial
9

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 10 of 56
discrimination through democratic processes; to inform the public of the adverse effects of racial discrimination and to seek its elimination; and to educate persons as to their constitutional rights and to take all lawful action to secure the exercise thereof. The NAACP of Oklahoma brings this suit on behalf of its members. Plaintiff NAACP of Oklahoma, through one of its members, attempted to attend an arraignment at the Canadian County District Court on December 9, 2019 but was denied access by a Court clerk.
20. Defendant Paul Hesse is the presiding District Judge in Canadian County. Judge Hesse created the bail schedule used by the Special District Judges when they impose bail at initial appearances and arraignments. Judge Hesse appoints all Special District Judges and reviews their performance. Judge Hesse also sets bail for defendants arraigned for failure to appear or revocation of probation. Judge Hesse can appoint counsel to indigent defendants. He is sued for injunctive and declaratory relief in his official administrative capacity as the supervisory official with the authority to alter the policies and practices of the Special District Judge Defendants at initial appearances and arraignments. In the alternative, he is sued in his judicial capacity for declaratory relief only.
21. Defendant Jack McCurdy is a District Judge in Canadian County. Judge McCurdy appoints all Special District Judges and reviews their performance. Judge McCurdy sets bond in certain criminal cases. Judge McCurdy can appoint counsel to indigent defendants. He is sued for injunctive and declaratory relief in his official
10

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 11 of 56
administrative capacity for having implemented the Bail Setting Policy described herein. In the alternative, he is sued in his judicial capacity for declaratory relief only.
22. Defendants Barbara Hatfield, Charles Gass and Khristan Strubhar (collectively, “the Special District Judges”), are Special District Judges in Canadian County. They are responsible for conducting initial appearances and arraignments with arrestees via videoconference and imposing bail amounts based on the published schedule created by Presiding District Judge Hesse. These initial bail determinations set the financial conditions for an arrestee’s pretrial detention. Arrestees are unable to meaningfully challenge the bail determination made by Special District Judges until their next court appearance, which is usually over a week later. The Special District Judges can appoint counsel to indigent defendants. The Special District Judges are sued for injunctive and declaratory relief in their official administrative capacities for having implemented the Bail Setting Policy described herein. In the alternative, they are sued in their judicial capacity for declaratory relief only.
23. Defendant Canadian County District Court, 26th Judicial District, is the court that administers the policies and practices challenged herein. It is a public entity for purposes of the ADA. On information and belief, it is a recipient of federal financial assistance for purposes of the Rehabilitation Act.
11

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 12 of 56
FACTUAL ALLEGATIONS A. The Individual Plaintiffs are Held in Jail Solely Because They Cannot
Afford to Pay Bail. 24. Plaintiff Misty White was arrested on November 16, 2019 for violation of a Victim Protective Order (“VPO”). The officer who arrested her did not tell her how she violated a VPO. 25. Ms. White has severe depression, severe anxiety, bipolar disorder and PTSD, and interstitial cystitis. She takes medications for these conditions, including methadone to manage withdrawal symptoms after she stopped taking prescribed Percocet for the pain of interstitial cystitis earlier this year. She could experience heart problems if she suddenly stopped taking her medications. 26. She was transported to the Canadian County Jail in the afternoon of November 16, 2019. Ms. White was taken to see a nurse at Intake in the jail. 27. Ms. White informed the nurse at the jail about the medications she takes, and that it is dangerous to stop some of these medications abruptly. The nurse told her that they “do not treat anxiety here.” She also told her that certain medications that Ms. White takes, including methadone and anxiety medications that are dangerous to stop suddenly, are not available at the jail. 28. Ms. White spent the first four days in an isolation cell in jail because jail officers incorrectly thought that she was suicidal. She did not receive any of her medications while she was in isolation and suffered withdrawal symptoms as a result. She felt like she was breaking down.
12

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 13 of 56
29. The day after she was arrested, Ms. White was taken out of the isolation cell for her initial appearance. She spoke to the judge through a video monitor for approximately one minute. The judge read Ms. White her charges and told her that her bail was $3,500. The judge did not ask her whether she could afford to pay that amount. She could not afford the $3,500 bail.
30. Ms. White felt intimated during the proceeding, and she did not know the rules. She did not know whether she could ask any questions. Ms. White would have liked to have a lawyer present at the proceeding because it felt one-sided. She was suffering from withdrawals during the proceeding as a result of not having received her medications. She had insomnia and a headache, which made it difficult for her to understand what was happening or to advocate for herself.
31. Ms. White was arraigned nine days later. The same judge conducted the proceeding via videoconference. Ms. White was still being denied access to most of her medications, including methadone and most of her psychiatric medications, and was experiencing disability-related symptoms at the time of her arraignment. The overcrowding in the jail further exacerbated Ms. White’s disabilities. She was informed that a charge of Obstructing an Officer had been added to her case, and the judge increased her bail amount to $4,500. Ms. White cannot afford to pay the $4,500 bail. She stopped working as a medic in order to take care of her daughter. She has no savings and has fallen behind in paying her bills.
32. The judge did not ask Ms. White any questions except personal identifying information. The entire proceeding lasted about one minute. The judge did not ask
13

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 14 of 56
whether Ms. White has a job, or if she could afford to pay $4,500. The judge did not provide any explanation for why her bail was set at $4,500.
33. Before her arraignment, the jail officer informed her and other people in jail that if they talked while they were waiting, the officer would return them to their cells and they would have to wait an additional week to be arraigned. The officer sent two people back to their cells before they were arraigned as punishment for talking.
34. Ms. White did not have a lawyer representing her at arraignment. She cannot afford to hire a private lawyer. Ms. White completed an application for an Oklahoma Indigent Defense System (“OIDS”) court-appointed attorney the day of her arraignment. She has inquired about the status of her application but still does not know if her application was approved. She cannot afford to pay the $40 application fee.
35. Ms. White’s next court appearance is scheduled for December 18, 2019. However, she has heard that the jail officials will not take incarcerated people to court if they do not have a lawyer assigned by the court date.
36. Ms. White has been in jail for 25 days. 37. Plaintiff Jermaine Bradford was arrested around midnight on November 20, 2019 for Driving While Under the Influence and Driving a Defective Vehicle (a Traffic Offense), in Yukon, Oklahoma. He was taken to the Yukon jail around 1:00 a.m., and stayed there until around 5:00 a.m., when he was transferred to the Canadian County Jail. 38. The computers were not working when he was booked into jail. The officer looked at a piece of paper and then told Mr. Bradford that his bail was around $6,000.
14

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 15 of 56
He cannot afford to pay that amount. At the time of his arrest, Mr. Bradford was working odd jobs completing cement work and other construction projects. He was earning roughly $500 each month. He lives with his girlfriend, and after covering all monthly expenses, there is little to no money remaining. They do not have any savings.
39. Mr. Bradford did not see a judge for about a week or a week-and-a-half after entering the Canadian County Jail.1 The meeting with the judge took place
0F
remotely. Mr. Bradford was in a visitation area of the jail. The judge appeared on a screen, and looked like she was sitting at a desk. Mr. Bradford spoke to the judge through a phone for less than three minutes. The judge informed Mr. Bradford of his charges and told him that his bond was $2,000; $1,000 per charge. The judge asked if he understood and he confirmed that he did. Before the proceeding ended, the judge told Mr. Bradford to be in her courtroom on December 18, 2019.
40. The judge did not ask Mr. Bradford any questions about his income, expenses or whether he can pay the bail amount she imposed in his case. The judge did not explain why the bail was set at $2,000. The judge did not inform him of any other options for him to get out of jail besides paying a cash bond.
41. Mr. Bradford was not represented at his arraignment. He would have liked to have a lawyer present to explain to the judge that he cannot afford the bond that she
1 Mr. Bradford identified a delay ranging from a week to a week and a half prior to his arraignment. Upon review of the Oklahoma State Courts Network (OSCN), he was arrested on November 20, 2019 and was not arraigned until November 26, 2019
15

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 16 of 56
imposed in his case, and to explain why he should have received an Own Recognizance bond.
42. Mr. Bradford was provided with an application for an OIDS courtappointed attorney before he entered the jail visitation room for his arraignment. He submitted the application but did not provide the names of three lawyers as required, because he does not know any lawyers. He cannot afford to pay the $40 application fee.
43. Mr. Bradford has been in jail for about 21 days. 44. Plaintiff Janara Musgrave has bipolar I disorder, anxiety disorder, and PTSD. She was arrested on November 11, 2019 for four misdemeanor charges: unlawful possession of a controlled dangerous substance, unlawful possession of drug paraphernalia, knowingly receiving stolen property, and larceny of lost property. She was taken to El Reno City Jail and then transported to the Canadian County Jail. 45. Ms. Musgrave was arraigned via videoconference one week after being arrested. The arraignment was the first time she was informed of the charges against her. Because of her disabilities, Ms. Musgrave had difficulty hearing and understanding what the judge was saying during the arraignment. The judge set Ms. Musgrave’s bond at $4,000. The judge did not ask Ms. Musgrave any questions about her income, her expenses, or her ability to afford the bail amount set. Nor did the judge provide any explanation as to why she set bail at that amount. There was no opportunity for Ms. Musgrave to obtain modifications or accommodations to participate in the proceeding. 46. Ms. Musgrave was anxious and distracted during the arraignment because a jail officer was sitting directly behind her throughout the proceeding. She would have
16

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 17 of 56
been able to hear better during the proceeding if the phone volume had been louder and the door to the room where the videoconference was held had been closed. If she had felt less rushed, she could have calmed down and asked the judge a question. The entire arraignment was completed in three to five minutes.
47. Ms. Musgrave did not know if she had the right to ask any questions and she did not know it was possible to have a lawyer at the arraignment. She would have liked to have a lawyer present to help explain what was taking place and what her options were.
48. Ms. Musgrave cannot afford to hire a private lawyer. She first received the application to request an OIDS court-appointed attorney before her arraignment. She was unable to complete the application until after her arraignment, however, because she did not know her charges until the arraignment. Ms. Musgrave was also not able to get the application notarized. She cannot afford to pay the $40 application fee. She still does not know whether her application for an OIDS court-appointed attorney was approved.
49. Ms. Musgrave cannot afford to pay the bail amount set in her case. She worked in a fast food restaurant before being arrested. After she pays for rent, utilities, bills, transportation, food, and medications, she has no funds left. Her friends and family are also unable to pay her bail amount.
50. Since she has been incarcerated, she has informed several jail officials about her significant psychiatric diagnoses. But no one has acknowledged her disabilities. She has not received any treatment or medication the entire time that she has been incarcerated.
17

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 18 of 56
51. Ms. Musgrave has been in jail for 30 days. 52. Plaintiff Landon Proudfit was arrested on November 13, 2019 for burglary in the second degree and arson in the first degree, both felonies.2 He was arrested at his
1F
apartment and taken to Yukon City Jail for processing and then transported to Canadian County Jail.
53. Within an hour of arriving at Canadian County Jail, Mr. Proudfit was placed on suicide watch for several days. He was not informed of his charges or his bond amount until November 17, 2019 when he asked a guard.3 The guard informed Mr.
2F
Proudfit of his charges and told him that his bond was $30,000. 54. Mr. Proudfit was arraigned via videoconference on December 5, 2019,
more than three weeks after being arrested. 55. The arraignment lasted two or three minutes. Mr. Proudfit had difficulty
hearing the judge because of the background noise at the jail and the quality of the sound on the videoconference. The judge informed Mr. Proudfit that he was charged with an additional misdemeanor for public intoxication from a previous arrest in August 2019 and set Mr. Proudfit’s bond at $31,000 total: $25,000 for the first-degree arson charge, $5,000 for the second-degree burglary charge, and $1,000 for the public intoxication charge. The judge did not ask Mr. Proudfit any questions about his income, his expenses, or his ability to afford the bail amount set. Nor did the judge provide any explanation as to why
2 Mr. Proudfit recalls being arrested on November 15, 2019. Upon review of the case docket on OSCN, it appears he was arrested on November 13, 2019. 3 Mr. Proudfit recalls that he was informed of his charges and bond on Sunday November 18, 2019. Upon review, the correct date is Sunday November 17, 2019.
18

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 19 of 56
she set bail at that amount. When he was asked whether he understood the proceedings, he responded “yes and no.” Mr. Proudfit attempted to ask the judge questions about both his charges and the setting of his bond but the judge and jail officer instructed him to save his questions for the next proceeding. Mr. Proudfit was not permitted to write down his bond amounts during the arraignment.
56. Mr. Proudfit cannot afford to pay the bail amount set in his case because he has been unemployed for approximately a year and a half. His family cannot afford to pay the bond amount.
57. Mr. Proudfit did not have an attorney at the arraignment, and he cannot afford to hire one. After his initial appearance, Mr. Proudfit received an application to request an OIDS court-appointed attorney. However, he was not able to complete the application’s requirements of speaking with three attorneys and having the application notarized. He completed the application to the best of his ability.
58. Mr. Proudfit has been in jail for 28 days. 59. Plaintiff Bradley Barber was arrested on November 19, 2019 for unlawful possession of a controlled dangerous substance. He was taken to El Reno City Jail and then transported to Canadian County Jail. 60. An officer informed Mr. Barber that his bond was $2,000. He also informed Mr. Barber that he could not be released on his own recognizance because of a city hold for the failure to pay a $25 a month minimum fine. 61. Mr. Barber was arraigned via videoconference a week after being arrested. The arraignment was very quick, and Mr. Barber had difficulty hearing the judge. The
19

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 20 of 56
judge set Mr. Barber’s bond at $4,000.4 The judge did not ask Mr. Barber any questions 3F
about his income, his expenses, or his ability to afford the bail amount set. Nor did the judge provide any explanation as to why she set bail at that amount.
62. Mr. Barber cannot afford to pay the bail amount set in his case because he has been laid off for three months.
63. Mr. Barber did not have an attorney at the arraignment, and he cannot afford to hire one. After his arraignment, Mr. Barber received an application to request an OIDS court-appointed attorney. However, he was not able to complete the application’s requirements of speaking with three attorneys and having the application notarized. He completed the application to the best of his ability and provided it to an officer to submit.
64. Mr. Barber has been in jail for 22 days. 65. Plaintiff Dakota Kappus was arrested on November 7, 2019 for Larceny of an Automobile, Leaving the Scene of an Accident, and Trespassing After Being Forbidden. He was held in the El Reno City Jail for seven days before being taken to the Canadian County Jail. An officer at the El Reno City Jail told him that the bond was $1,100, but they did not tell him why his bond was that amount.
4 Mr. Barber recalls that his bond was set at arraignment at $4,000. Upon review of the case docket on OSCN, it appears that his bond amount may actually be $6,000; $5,000 on the Motion to Revoke Probation, and $1,000 on the Unlawful Possession of a Controlled Substance.
20

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 21 of 56
66. He waited 2 weeks to be arraigned. He was arraigned by video from the Canadian County Jail, during which he spoke to the judge through a phone. He believes bond was set at approximately $50,000.5 The judge did not ask him whether he could
4F
afford to pay his bond. A jail officer sat behind him taking notes during the arraignment. 67. Mr. Kappus did not have a lawyer at the proceeding and he cannot afford to
hire a private lawyer. He would have liked to have a lawyer during the proceeding to help him.
68. When he was taken to the arraignment, an officer gave him the application for the OIDS court-appointed attorney. He could not afford the $40 application fee. Nor could he complete the form because he did not know three lawyers to contact and he did not know what a notary was.
69. Mr. Kappus has been in jail for over 34 days. B. Defendants’ Policies and Practices Constitute a Wealth-Based
Detention System That Keeps People in Jail for the Sole Reason that They Cannot Afford to Pay Bail. 70. The Canadian County District Court, through Defendant Presiding District Judge Paul Hesse, has created a policy of setting bail amounts that many indigent defendants cannot afford to pay according to a fixed bail schedule (the “Bail Setting Policy”) without any inquiry into the arrestee’s ability to pay bail. 71. This Bail Setting Policy applies in both misdemeanor and felony cases. Under the Policy, bail amounts are imposed upon a person, without any individualized
5 Mr. Kappus was unsure of his bond amount but believes it is approximately $50,000. Upon review of the case docket on OSCN his bond amount appears to be $44,500.
21

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 22 of 56
inquiry into the person’s circumstances such as flight risk, dangerousness, and ability to pay, or how disability and accommodations to disability might affect this inquiry. Bail is imposed without counsel for the arrestee and without providing the arrestee with an opportunity to present evidence or rebut evidence of flight risk or dangerousness. As a result of this policy, wealthier arrestees can purchase their release, while similarly situated but poor arrestees—although accused of the same crimes—remain in jail.
72. In May 2018, Canadian County Presiding District Court Judge Paul Hesse created and promulgated a revised bail schedule. Under the terms of the revised schedule some people accused of misdemeanors are eligible for release upon personal recognizance, while people charged with crimes deemed ineligible for release upon personal recognizance receive bail conditions. The amount of bail is based, in part, on county residency. Out-of-county residency automatically increases the bail amount. For example, for some less serious misdemeanors, the predetermined bail schedule sets bail at $1,000 for Canadian County residents. For these same less serious misdemeanors, the bail schedule sets bail at $2,000 for non-residents of Canadian County. The bail schedule also includes bail amounts to be imposed in felony cases based, in part, on Oklahoma state residency. For example, for non-violent felonies, the bail schedule sets bail at $5,000 for residents of the state, whereas for the same non-violent felonies, the bail schedule sets bail at $10,000 for non-residents of the state.
22

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 23 of 56
1. Bail Is Set Following Proceedings That Are Constitutionally Inadequate
73. Canadian County Special District Judges conduct initial appearances and arraignments for in-custody individuals every week, but only on Tuesday and Thursday. These proceedings are conducted in judicial chambers, that are closed off from the public.
74. Arrestees appear via videoconference and these initial appearances and arraignments generally last sixty to ninety seconds. The presiding Special District Judges do not advise defendants of their right to counsel, and the Special District Judges do not ask about the defendant’s ties to the community, income, expenses, or ability to pay a particular bail amount. Although it is known that many arrestees have disabilities, the Special District Judges do not inquire into the individual’s disability, whether they require reasonable modifications in the proceeding in order to be released pretrial, or whether their disability has contributed to previous alleged technical violations, such as failures to appear. Although many such arrestees’ disabilities prevent them from representing themselves, the Special District Judges do not consider whether these individuals need representation to have an equal opportunity to participate in their arraignments and initial appearances.
75. Special District Judges usually order that bail remain at the amount that was previously set based on the bail schedule, unless the charges filed are different from those on which the arrestee was booked. If new charges have been added, the bail amounts for those charges are set in accordance with the bail schedule.
23

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 24 of 56
76. An individual who cannot pay the amount set by the schedule, and adopted by the Special District Judge at their initial appearance or arraignment, remains in jail.
77. The Named Plaintiffs waited between 7 and 21 days to be arraigned after their arrest.
78. Upon information and belief, arrestees wait an average of two to three weeks after arrest before counsel is appointed, and usually much longer before they actually meet their attorney.
79. Indigent arrestees must pay a $40 fee to apply for a court-appointed lawyer through OIDS and, if approved, must wait approximately one week on average before counsel will be appointed. However, if an arrestee posts the bail amount imposed in their case after receiving an OIDS attorney, OIDS has a policy and practice of filing a motion to withdraw as counsel on the basis that the arrestee does not qualify as indigent because they paid their bail. The District Court judges also consider payment of bail as a factor in determining whether the arrestee is indigent when deciding whether to grant OIDS’ motions to withdraw. As a result, indigent arrestees who want the assistance of a courtappointed lawyer must effectively remain in custody, even if a family member or employer would be willing to pay bail. This system causes indigent arrestees in Canadian County to have to make an unjust choice: either remain in custody to secure the advice and representation of court-appointed counsel, or go free but face criminal charges without a lawyer.
80. Most arrestees, including Named Plaintiffs Musgrave, Proudfit, and Barber are aware of the existence of this practice and the negative consequences attached to
24

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 25 of 56
posting bail in Canadian County. Plaintiff Barber, was aware that even if he could afford to post his bail amount, he would not be able to receive an OIDS court-appointed attorney if he paid the bail and was released from jail. Plaintiff Musgrave read that the OIDS court-appointed attorney application says that if the applicant posts bond, they cannot have an OIDS court-appointed attorney. Plaintiff Proudfit also read that the OIDS courtappointed attorney application states there is a presumption that you can afford a lawyer if you bond out and that it makes arrestees feel like they should stay in jail if they want to get a lawyer.
C. The Period of Automatic Detention Resulting from Defendants’ Policies and Practices Unconstitutionally and Unlawfully Discriminates Against Arrestees Who Cannot Afford Their Bail.
81. As a result of the Bail Setting Policy, Defendants routinely jail arrestees who cannot afford their bail without considering their ability to pay any bail amount, or the possibility that any risk that the arrestee might flee prosecution or present a danger to the community could be mitigated by a less restrictive option than pretrial detention, including through reasonable modifications for arrestees with disabilities. This policy causes extraordinary harm for arrestees who cannot afford their bail, and yet it is completely unrelated to any permissible judicial or governmental purpose, let alone being narrowly tailored to achieve a compelling governmental objective, as required by the Due Process and Equal Protection Clauses.
82. Nor do Defendants consider that many arrestees have disabilities and require modifications to participate in the pretrial proceedings, and to have an equal opportunity to be released successfully on bail. Additionally, as a result of their
25

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 26 of 56
disabilities, many indigent arrestees cannot represent themselves in court proceedings, particularly when such sessions occur via videoconference. Defendants fail to consider whether these arrestees require court-appointed counsel to have an equal opportunity in court. Defendants fail to consider alternatives to their bail policy that would permit these arrestees an equal opportunity to be released pending trial. Defendants fail to consider whether arrestees with disabilities pose any risk of fleeing prosecution or danger to the community, whether any such risk could be mitigated by reasonable modifications such as reminders for court appearances, and whether previous failures to appear or pay were themselves a result of disability or Defendants’ denial of required modifications.
1. The Bail Schedule Policies and Practices Inflict Severe Harm on Arrestees Who Cannot Afford Their Bail.
83. The periods of incarceration experienced by pretrial arrestees in Canadian County who cannot afford their bail—periods in which these individuals are presumed innocent—are inherently harmful deprivations of liberty. Pretrial detention for impoverished individuals can wreak havoc on their lives, even if they are in jail for only a few days. Individuals miss work due to being detained, leading to lost wages and sometimes lost jobs. Due to lost wages, impoverished individuals fall behind on rent and may be evicted from their homes. They also fall further behind on paying legal financial obligations like court fines, costs and fees, thereby trapping them in a cycle of poverty and endless involvement with the criminal legal system. Arrestees who remain in jail because they cannot afford their bail also cannot perform their caretaking responsibilities, which can lead to loss of custody of their children. For disabled arrestees, the experience
26

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 27 of 56
of incarceration often includes disrupted health, missed medications, and interruption of any routine and stability that can be vital in managing disability, often resulting in significant decompensation and increased disability-related symptoms. Each of these consequences occurs before the arrestee has even been tried or found guilty of a crime.
84. The Federal Reserve recently reported that approximately 40% of adults in the United States are unable to pay a $400 emergency expense.6 The unaffordable bail
5F
amounts imposed in Canadian County are thus sure to cause financial strain, and perhaps even devastation, for impoverished arrestees and their families.
85. Incarcerating arrestees because they cannot afford bail is also harmful to the community in general. Canadian County jails are already overcrowded, and taxpayers shoulder the burden of paying for these jails and the incremental costs of each additional person kept in jail. In 2017, the Canadian County Detention Center (“CCDC”), which holds both pretrial detainees and formally sentenced people,7 had an average daily
6F
population of 300, more than 100 over the CCDC’s capacity.8 Approximately 4,000 7F
people were processed through the CCDC in 2017.9 With regard to taxpayer cost, a 2015 8F
6 Board of Governors of the Federal Reserve System, Report on the Economic Well-Being of U.S. Households in 2018, May 2019, https://www.federalreserve.gov/publications/files/2018-report-economic-well-being-ushouseholds-201905.pdf. 7 Canadian County Sheriff’s Office, https://www.ccsheriff.net/31/Detention-Facility (last accessed Nov. 9, 2019). 8 Id. 9 Id.
27

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 28 of 56
study showed that the state prison average cost per incarcerated person in Oklahoma was $16,497. 10
9F
86. Further, cash bail has been shown to lead to an increase in the likelihood that individuals will plead guilty just to get out of the horrific experience of jail, even when they are innocent. 11
10F
87. Plaintiff Misty White has suffered as a result of the past 25 days she has spent in jail. She has experienced increased anxiety due to the conditions in the jail. She spent four days in isolation following a miscommunication where the jail believed she was suicidal. She suffered extreme trauma and harm during this period, including a threat by an officer that a male officer would undress her if she didn’t comply with the officer’s orders. This experience exacerbated Ms. White’s PTSD and other disabilities. Ms. White does not consume pork for religious reasons. She informed the booking officer of her dietary restrictions and the officer told her that she would not be able to eat many of the meals served. Pork is frequently served for lunch and dinner at the Canadian County Jail. She has had to forego many meals and goes hungry often. The jail has also refused to provide her most of the medications she takes. She has experienced insomnia,
10 Prison spending in 2015, Vera, https://www.vera.org/publications/price-of-prisons2015-state-spending-trends/price-of-prisons-2015-state-spending-trends/price-of-prisons2015-state-spending-trends-prison-spending (last accessed November 9, 2019). 11 Antonia Noori Farzan, He pleaded guilty to cocaine possession and was sentenced to 15 years in prison. It turned out to be powdered milk, Wash. Post (Oct. 16, 2019) (citing a study that found that “66 percent of people who were exonerated after being convicted of drug crimes ended up in prison in the first place because they entered a guilty plea.”)
28

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 29 of 56
withdrawals and chronic pain. Being in jail has caused her to miss visitations with her daughter. She has been unable to work and therefore has been unable to pay her bills.
88. Plaintiff Jermaine Bradford has not been able to work and contribute to household expenses as a result of being in jail the past 21 days. His girlfriend has struggled to pay their bills in his absence.
89. Plaintiff Janara Musgrave has lost her employment since being arrested. Her disability-related symptoms have worsened, and she has received no support or counseling, despite repeatedly informing the jail of her diagnoses.
90. Plaintiff Landon Proudfit has missed spending time with his daughter. He has also been unable to provide support to his disabled father and assist with caring for his brother who has cerebral palsy and uses a wheelchair and requires assistance with eating, bathing, and routine daily tasks.
91. Plaintiff Bradley Barber has missed the opportunity to resume his employment as a result of his continued incarceration.
92. Plaintiff Dakota Kappus has missed spending time with his mother who has cancer. He has been unable to receive treatment for his Type II diabetes.
2. Defendants’ Bail Setting Policy Does Not Further Any Valid Governmental Interest, Let Alone a Compelling One.
93. Studies show that cash bail does not meaningfully increase a person’s likelihood of returning to court, 12 and that there are other, more effective non-financial
11 F
12 ODonnell v. Harris Cnty., 882 F.3d 528, 545 (5th Cir. 2018) (upholding the district court’s “thorough review of empirical data and studies [finding] that the County had failed to establish any ‘link between financial conditions of release and appearance at
29

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 30 of 56
means of ensuring their return. This research defeats one of the two key reasons often offered to justify bail: ensuring that the accused will return to court. If there is no correlation between bail and returning to court, there is quite simply no legitimate government interest in cash bail in cases that do not involve public safety. For many people with disabilities, simple modifications such as text message reminders about court dates and clear explanations of the criminal legal process can increase appearance at court hearings without loss of liberty. Such modifications must be considered under disability rights laws.
94. Further, unaffordable bail does not increase public safety. After brief periods of detention, each additional day a person spends locked in jail increases the likelihood that she will be rearrested after she is released, largely as a result of the economic harms she will have suffered as a result of her detention. 13
12F
trial or law-abiding behavior before trial.’”). E.g., EXHIBIT A, Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 21 (Aug. 18, 2016) (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”); EXHIBIT B, Michael R. Jones, Unsecured Bonds: The as Effective and Most Efficient Pretrial Release Option, 11 (Oct. 2013) (“Whether released defendants are higher or lower risk or in-between, unsecured bonds offer the decision-makers same likelihood of court appearance as do secured bonds.”). 13 EXHIBIT C, Christopher T. Lowenkamp Ph.D et al., The Hidden Costs of Pretrial Detention, Laura & John Arnold Foundation, 19–20 (November 2013) (“Defendants detained pretrial were 1.3 times more likely to recidivate compared to defendants who were released at some point pending trial.”), https://craftmediabucket.s3.amazonaws.com/uploads/PDFs/LJAF Report_hidden costs_ FNL.pdf.
30

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 31 of 56
D. Special District Judges Set Bail Amounts and Deprive Arrestees of Liberty Without Adequate Procedural Protections and Without Constitutionally Required Findings.
95. The Bail Setting Policy also deprives people of liberty without adequate procedural protections. Under the Policy, Special District Judges use the preset bail schedule to automatically determine the amount of bail imposed upon a person arrested under a warrant. Likewise, jail officials impose bail according to the bail schedule when booking arrestees following arrest. These reflexively imposed bail amounts are largely adopted by Special District Judges as the bail amount at initial appearances and arraignments.
96. An arrestee is never provided with any of the procedural protections that are required before a person can constitutionally be deprived of their liberty before trial: a hearing with counsel where the person can present and rebut evidence concerning allegations of flight risk or danger to the community; advance notice of the hearing; and individualized, reasoned written findings, by clear and convincing evidence, that no other non-financial release conditions could address any risk of flight or danger to the community.
E. The Bail Setting Policy Violates Indigent Arrestees’ Right to Counsel Under the Sixth Amendment.
97. Canadian County’s Bail Setting Policy also deprives indigent arrestees of defense counsel at a critical stage of prosecution and relatedly deprives them of an opportunity to present evidence or rebut evidence concerning allegations of flight risk or dangerousness. The setting of bail has the power to severely prejudice the fairness of
31

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 32 of 56
subsequent criminal proceedings. Bail proceedings can settle the fate of the person accused and render subsequent proceedings a mere formality. Unaffordable bail, in particular, can induce plea bargains, which foreclose subsequent proceedings. Bail setting in Canadian County District Court is therefore a critical stage of the prosecution, and the Sixth Amendment requires that arrestees have the benefit of counsel at such proceedings.
F. Defendants’ Bail Setting Policy Violates the ADA and the Rehabilitation Act
98. Defendants’ policies and procedures violate the ADA and the Rehabilitation Act. Many arrestees have disabilities and cannot represent themselves in court proceedings, particularly when such proceedings occur via videoconference. Defendants fail to consider whether disabled arrestees require legal representation to have an equal opportunity in court. Defendants fail to consider whether disabled arrestees require other reasonable modifications or effective communication services to participate equally in initial appearances and arraignments, including extra time, quiet proceedings or proceedings in person, simple language, and documents written in plain English. Defendants fail to consider whether, as a result of their disabilities and the poverty programs upon which disabled people rely (such as SSI), disabled arrestees are unable to afford their bail. Defendants fail to consider alternatives to bail for indigent disabled arrestees who cannot pay bail. Defendants fail to consider whether these arrestees pose any risk of flight or danger to the community and further fail to consider whether any such risks could be mitigated by reasonable modifications. Defendants fail to consider
32

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 33 of 56
whether previous failures to appear or alleged technical violations were themselves a result of Defendants’ failure to provide reasonable modifications such as reminders of court appearances or assistance with transportation. As a result, these arrestees are denied an equal opportunity to be released pending trial.
G. By Holding Initial Appearances and Arraignments in Judicial Chambers, Special District Judges are Denying Community Members Such as the NAACP of Oklahoma their First Amendment Right to Access Pretrial Proceedings.
99. Special District Judges conduct initial appearances and arraignments within the confines of their chambers, closed off from the public. Special District Judges arraign in-custody arrestees via videoconference to the jail. No attorneys or other witnesses are present.
100. Plaintiff NAACP of Oklahoma, as well as the rest of the public, has a strong interest in being able to have access to and have confidence in the Canadian County judicial system which has the ability to detain people in jail who have not yet been convicted of a crime. Further, the NAACP of Oklahoma is interested in the way people are treated in the criminal legal system, and is dedicated to educating members of the public about their constitutional rights. The NAACP of Oklahoma wants to be able to observe initial appearances and arraignments to further that cause.
101. Plaintiff NAACP of Oklahoma, through one of its members, attempted to attend an initial appearance and arraignment on December 9, 2019. However, the NAACP of Oklahoma’s member was denied access and told that arraignments are only
33

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 34 of 56
held on Tuesdays and Thursdays, and that he could not observe them because they are they are held in judicial chambers.
102. The Defendants have no legitimate reason for shutting out the public, including its taxpayers from initial appearances and arraignments.
H. The Defendants are Liable for the Unconstitutional Bail Setting Policy. 103. The District Judges, make policy decisions about which arrestees are eligible for release, which ones are not eligible for bond, and about the amounts for the bail for all offenses. 104. The Defendants’ Bail Setting Policy has injured individual Plaintiffs by causing them lost wages, lost jobs, inability to care for their loved ones, and other unjustified harms. 105. The Canadian County District Court could provide constitutionally adequate pretrial detention proceedings at initial appearances and arraignments that would be consistent with Oklahoma and federal law. Instead, it continues to operate an unconstitutional pretrial detention system that discriminates against poor people, in particular poor people with disabilities, based on wealth.
CLASS ACTION ALLEGATIONS 106. The named individual Plaintiffs Misty White, Jermaine Bradford, Janara Musgrave, Landon Proudfit, Bradley Barber, Jr., and Dakota Kappus seek injunctive and declaratory relief, on behalf of themselves and all others similarly situated, under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. With respect to Counts 1, 2, and 3, individual Plaintiffs Misty White, Jermaine Bradford, Janara Musgrave, Landon
34

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 35 of 56
Proudfit, Bradley Barber, Jr., and Dakota Kappus seek to represent a primary class composed of all arrestees who are detained by Canadian County from the time of the filing of this Complaint through the final resolution of this case, for whom a secured financial condition of release has been set, without the presence of counsel, and who cannot afford the amount necessary for release on the secured money bail. With respect to Counts 5 and 6, Plaintiffs Misty White and Janara Musgrave seek to represent a subclass (the “disability subclass”) of all arrestees with a disability, as defined in the Americans with Disabilities Act and Rehabilitation Act, who are detained by Canadian County from the time of the filing of this Complaint through the final resolution of this case, for whom a secured financial condition of release has been set, without the presence of counsel, and who cannot afford the amount necessary for release on the secured money bail.
107. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.
A. Numerosity, Fed. R. Civ. P. 23(a)(1) 108. The primary class and the subclass are so numerous as to render joinder of all members impracticable, and, joinder is further impracticable because the primary class and subclass include future members. 109. In 2017, over 4,000 individuals were booked through the Canadian County Detention Center. 14 Based on publicly available jail population data, during one week in
1 3F
14 https://www.ccsheriff.net/13/Detention-Facility.
35

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 36 of 56
November, 2019, 243 of the 294 (82.6%) individuals being held in the Canadian County Detention Center were in custody pretrial. Moreover, the primary class consists of future members, rendering joinder even more impracticable.
110. Joinder of the proposed disability subclass would also be impracticable. In 2016, for example, 60% of individuals imprisoned in Oklahoma had symptoms or a history of mental illness. 15 Moreover, the disability subclass consists of future members,
14F
rendering joinder even more impracticable. B. Commonality, Fed. R. Civ. P. 23(a)(2) 111. The relief sought for the primary class, and the disability subclass, is
common to all members of the primary class and members of the subclass. Common questions of law and fact exist as to all members of the primary class, and all members of the disability subclass.
112. Plaintiffs seek a declaratory judgment that the Defendants’ practice of conducting initial appearances and arraignments through the use of the Bail Setting Policy, and without defense counsel present, are unconstitutional, and an order enjoining them, on grounds that they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Sixth Amendment right to counsel. These practices apply openly and in materially the same manner every day with respect to all people arraigned in the Canadian County District Court. Resolution of the legal and factual
15 Jaclyn Cosgrove, Epidemic Ignored, The Oklahoman, (Nov. 13, 2016), http://oklahoman.com/special/article/5526388/epidemic-ignored-solutions-necessary-tostop-oklahomans-from-funneling-into-jails-prisons-for-treatment.
36

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 37 of 56
issues raised by this Complaint will determine whether all members of the primary class, and the disability subclass, are entitled to the constitutional relief that they seek.
113. Questions of fact common to the primary class include the following: • Whether Defendants have a widespread, well-settled policy and practice of setting secured bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, reasoned findings based on clear and convincing evidence on the record that de facto pretrial detention unaffordable bail is the least restrictive means of mitigating an individual’s flight risk or danger to the community; • Whether Defendants conduct initial appearances and arraignments without the presence of counsel for the arrestee; • Whether Defendants have a widespread, well-settled policy and practice of setting bail without inquiry into ability to pay or consideration of alternatives less restrictive than unaffordable bail; • Whether Defendants’ bail orders result in pretrial detention; • Whether unaffordable bail undermines the fairness of plea bargaining or trial; and • How long class members must wait in jail after arrest before they have an opportunity to raise their inability to pay for their release or to request alternative, non-financial conditions.
37

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 38 of 56
114. Questions of law common to the primary class include the following: • Whether imposing bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, and reasoned findings on the record that a de facto detention order through unaffordable bail is the least restrictive means of mitigating an individual’s flight risk or danger to the community violates the Fourteenth Amendment’s Due Process Clause; • Whether imposing unaffordable bail without an ability to pay hearing violates the Fourteenth Amendment Equal Protection and Due Process Clauses; and • Whether denying counsel at initial appearances and arraignments violates the Sixth Amendment right to counsel.
115. Questions of fact common to the disability subclass include the following: • Whether Defendants fail to consider whether, as a result of their disabilities and/or the poverty programs upon which disabled people rely (such as SSI), disabled arrestees are unable to afford their bail; • Whether Defendants fail to consider whether disabled arrestees require reasonable modifications or effective communication services to participate equally in initial arraignments and appearances, including extra time, quiet proceedings or proceedings in person, simple language, and documents written in plain English;
38

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 39 of 56
• Whether Defendants have a policy and practice of denying court-appointed representation to disabled arrestees without considering whether they are able to represent themselves in court proceedings;
• Whether Defendants fail to consider whether disabled arrestees are qualified to be released without bail because, with or without reasonable modifications, they do not pose a risk of fleeing prosecution or danger to the community; and
• Whether Defendants fail to consider whether previous failures to appear or alleged technical violations were themselves a result of Defendants’ failure to provide reasonable modifications such as reminders of court appearances, or assistance with transportation.
116. Questions of law common to the disability subclass include the following: • Whether the failure to consider whether, as a result of their disabilities and and/or the poverty programs upon which disabled people rely (such as SSI), disabled arrestees are unable to afford their bail, violates the ADA and the Rehabilitation Act; • Whether the failure to consider whether disabled arrestees require reasonable modifications or effective communication services to participate equally in initial appearances and arraignments, including extra time, quiet proceedings or proceedings in person, simple language, and documents written in plain English, violates the ADA and the Rehabilitation Act;
39

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 40 of 56
• Whether denying court-appointed counsel to such arrestees who cannot represent themselves violates the ADA and the Rehabilitation Act; and
• Whether the failure to consider alternatives to bail for disabled arrestees who are qualified for pretrial release, with or without reasonable accommodations, violates the ADA and the Rehabilitation Act.
C. Typicality, Fed. R. Civ. P. 23(a)(3) 117. The named Plaintiffs’ claims are typical of the claims of the other members of the proposed primary class and subclass. Each class member suffers, or suffered, the same injury because Defendants do not comply with constitutional requirements: primary class members are arraigned under the Defendants’ Bail Setting Policy, without counsel present, at a proceeding during which they were not afforded the opportunity to present evidence, and their individual flight risk and dangerousness were not adequately considered, and they are confined in jail because they could not afford to pay the bail amount that was set in their case. The disability subclass members are all subjected to the Defendants’ policies and procedures regarding bail setting, without consideration of alternatives to bail that would accommodate their disabilities and grant an equal opportunity for pretrial release. 118. The constitutional deprivations suffered by named Plaintiffs are the same as those of putative primary and subclass members. D. Adequacy, Fed. R. Civ. P. 23(a)(4) 119. The named Plaintiffs are adequate representatives of the primary class and subclass because they have suffered the same constitutional harms being inflicted on
40

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 41 of 56
similarly-situated individuals who are arraigned under the Defendants’ Bail Setting Policy, and because their interests in the vindication of the legal claims they raise are aligned with the interests of the other primary class and subclass members.
120. The named Plaintiffs are members of the primary class and subclass, and there are no known conflicts of interest among members of the proposed primary class and subclass.
121. Plaintiffs are represented by attorneys from the American Civil Liberties Union Foundation, the American Civil Liberties Union of Oklahoma Foundation, Covington & Burling LLP, and Overman Legal Group, PLLC. Counsel have extensive combined experience litigating class actions and complex civil rights matters in federal court and extensive knowledge of the details of the Canadian County’s Bail Setting Policy and the relevant constitutional and statutory law. Counsel include litigators who have specific experience with these types of claims, having litigated similar issues in class action lawsuits in other fora around the country. Counsels’ qualifications to serve as Class Counsel are set forth in the pending Motion for Class Certification filed concurrently with this complaint.
122. The interests of the members of the proposed class and subclass will be fairly and adequately protected by the named Plaintiffs and their attorneys.
41

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 42 of 56
E. Injunctive and Declaratory Relief Are Appropriate, Fed. R. Civ. P. 23(b)(2)
123. Class-action status under Rule 23(b)(2) is appropriate because the Defendants, through the Bail Setting Policy, have acted in the same unconstitutional manner with respect to all primary class and subclass members.
124. On behalf of the primary class, Plaintiffs seek declaratory and injunctive relief: prohibiting Defendants from continuing to follow their Bail Setting Policy, prohibiting Defendants from continuing to impose unaffordable bail amounts without providing advance notice of the rights at stake, the opportunity to present or contest evidence, or a written record of reasoned findings by clear and convincing evidence that bail in the amount set is the least restrictive means of achieving a valid and compelling government interest, and requiring adequate procedures and appointment of counsel at initial appearances and arraignments. The relief sought is appropriate for the primary class as a whole.
125. On behalf of the disability subclass, Plaintiffs seek declaratory and injunctive relief prohibiting Defendants from continuing to impose unaffordable bail amounts for disabled indigent arrestees who are qualified for pretrial release, with or without reasonable modifications. Plaintiffs further seek declaratory and injunctive relief requiring Defendants to provide court-appointed counsel to those indigent disabled arrestees who cannot represent themselves in court proceedings. The relief sought is appropriate for the disability subclass as a whole.
42

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 43 of 56
CLAIMS FOR RELIEF COUNT ONE 42 U.S.C. § 1983
Violation of the Equal Protection and Due Process Clauses: Wealth-Based Discriminatory Detention
On Behalf of All Plaintiffs Against All Individual Defendants 126. Plaintiffs incorporate all of the allegations above. 127. Under the Bail Setting Policy, Defendants cause Plaintiffs to be jailed because they are unable to pay bail amounts that are automatically imposed on them, while releasing otherwise similarly-situated individuals who can afford to pay their bail. 128. Defendants set unaffordable bail amounts without: (1) conducting an inquiry into or making findings on the record based on clear and convincing evidence concerning an arrestee’s ability to pay; (2) considering whether there are less restrictive, alternate means of achieving a compelling government interest; and (3) determining that detention is necessary notwithstanding and arrestee’s inability to pay. 129. Defendants’ wealth-based Bail Setting Policy violates Plaintiffs’ and the members of the Detention subclass’ rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution.
COUNT TWO 42 U.S.C. § 1983 Violation of Procedural and Substantive Due Process: Failure to Provide Adequate Hearings Before Depriving Plaintiffs of a Guaranteed Liberty Interest; Unjustified Pretrial Detention On Behalf of All Plaintiffs Against All Individual Defendants
130. Plaintiffs incorporate all of the allegations above.
43

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 44 of 56
131. Under the Bail Setting Policy, Defendants set unaffordable bail under a bail schedule in initial appearances and arraignments lasting less than a few minutes for each person. Defendants then continue to jail people who are unable to pay their bail, depriving them of their pretrial liberty.
132. These unaffordable bail amounts function as de facto pretrial detention orders. Defendants set these unaffordable bail amounts without making a substantive finding, subject to heightened scrutiny, that detention is necessary because there is no other less restrictive condition or combination of conditions that would achieve the compelling government interests in preventing flight or danger to the community.
133. This practice fails to adequately justify the pretrial deprivation of liberty of an arrested person, and violates Plaintiffs’ right to substantive due process guaranteed by the Fourteenth Amendment to the United States Constitution.
134. Due Process also demands that, prior to issuing a detention order, the government must provide certain procedural protections to ensure the accuracy and reliability of the requisite finding of necessity, such as advance notice of the rights at stake and a prompt, individualized hearing with counsel at which an individual may only be incarcerated if a neutral decision-maker makes a finding on the record, by clear and convincing evidence, that no less restrictive alternatives would be sufficient to reasonably advance the purposes of bail.
135. Defendants violate Plaintiffs’ and all primary class members’ right to the procedural due process guaranteed by the Fourteenth Amendment to the United States Constitution by detaining individuals after cursory initial appearances and arraignments
44

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 45 of 56
that do not provide any of the procedural protections required before the government may deprive an individual of pretrial liberty.
COUNT THREE 42 U.S.C. § 1983 Violation of Sixth Amendment Right to Counsel: Failure to Provide Counsel at a Critical Stage On Behalf of All Plaintiffs Against All Individual Defendants 136. Plaintiffs incorporate all of the allegations above. 137. Under the Bail Setting Policy, Defendants jail arrestees after conducting initial appearances and arraignments and setting bail without defense counsel present. 138. The Sixth Amendment to the United States Constitution, incorporated against the States by the Fourteenth Amendment, guarantees defendants the right to counsel at each critical stage of prosecution. Critical stages include all pretrial hearings that may prejudice the fairness of subsequent criminal proceedings. 139. The setting of bail has the power to severely prejudice the fairness of subsequent criminal proceedings. Bail hearings can settle the fate of the person accused and render subsequent proceedings a mere formality. Unaffordable bail, in particular, can induce plea bargains, which would foreclose subsequent proceedings in the case. Bail setting in Canadian County District Court is therefore a critical stage of the prosecution, and the Sixth Amendment requires that arrestees have the benefit of counsel at such proceedings. By setting Plaintiffs’ bail without first appointing defense counsel to represent and assist them, Defendants violate Plaintiffs’, and all primary class and subclass members’, right to counsel guaranteed by the Sixth Amendment to the United States.
45

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 46 of 56
COUNT FOUR 42 U.S.C. § 1983 Violation of First Amendment Right to Open Courts: Failure to Provide Public With Access to Bail Determinations On Behalf of All Plaintiffs Against All Individual Defendants 140. Plaintiffs incorporate all of the allegations above. 141. Bail determinations for people in jail in Canadian County are held in judicial chambers via videoconference between a Special District Judge and the arrestee. 142. The Defendants’ failure to conduct these proceedings in open court denies the public access to a pretrial proceeding, in violation of the First Amendment to the United States Constitution. COUNT FIVE Discrimination On The Basis Of Disability In Violation Of Title II Of The ADA (42 U.S.C. § 12131, et seq.) On behalf of Plaintiffs White and Musgrave Against All Defendants 143. Plaintiffs incorporate all of the allegations above. 144. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations implementing Title II of the ADA require that public entities avoid unnecessary policies, practices, criteria or methods of administration that have the effect of excluding or discriminating against persons with disabilities. 28 C.F.R. § 35.130(b)(3), (8). Further, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that
46

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 47 of 56
making the modifications would fundamentally alter the natures of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
145. Plaintiffs are individuals with disabilities for purposes of the ADA, 42 U.S.C. § 12102. They are “qualified” for the programs, services, and activities being challenged herein, 42 U.S.C. § 12131(2).
146. Defendants are violating Title II of the ADA by administering a bail policy that does not take into consideration an individual’s disability, does not provide the modifications or effective communication services that the person may need to participate equally in the initial appearance or arraignment proceedings, and does not offer alternatives to bail for arrestees with disabilities. Defendants are further violating Title II of the ADA by denying court-appointed representation to such disabled arrestees who are unable to represent themselves in court proceedings. Defendants are further violating Title II of the ADA by failing to release indigent disabled arrestees who, with or without reasonable modifications, do not pose a risk of flight or danger to others. Defendants are further violating Title II of the ADA by failing to consider whether previous failures to appear, failures to pay, or other alleged technical violations were themselves a result of Defendants’ failures to provide reasonable modifications or to consider arrestees’ poverty. As a result, indigent arrestees with disabilities are denied an equal opportunity for pretrial release, and instead remain incarcerated, often experiencing a worsening of their disability-related symptoms.
47

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 48 of 56
COUNT SIX Discrimination On The Basis Of Disability In Violation Of Section 504 of the Rehabilitation Act
(29 U.S.C. § 794) On behalf of Plaintiffs White and Musgrave Against All Defendants 147. Plaintiffs incorporate all of the allegations above. 148. Section 504 of the Rehabilitation Act states that no qualified individual with a disability in the United States . . . shall, solely by reason of [] disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. § 794(a). The regulations implementing Section 504 of the Rehabilitation Act require that entities receiving federal financial assistance avoid unnecessary policies, practices, criteria or methods of administration that have the effect of discriminating against persons with disabilities. 28 C.F.R. § 41.51(b)(3)(i). 149. Upon information and belief, Defendants receive “Federal financial assistance” within the meaning of 29 U.S.C. § 794(a). 150. Plaintiffs are individuals with disabilities for purposes of the Rehabilitation Act, 42 U.S.C. § 12102. 29 U.S.C. § 705(20)(B). They are “qualified” for the programs, services, and activities being challenged herein. 151. Defendants are violating Section 504 of the Rehabilitation Act by administering a bail policy that does not take into consideration an individual’s disability, does not provide the modifications or effective communication services that the person may need to participate equally in the initial appearance or arraignment proceedings, and does not offer alternatives to bail for arrestees with disabilities. Defendants are further
48

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 49 of 56
violating Section 504 of the Rehabilitation Act by denying court-appointed representation to such disabled arrestees who are unable to represent themselves in court proceedings. Defendants are further violating Section 504 of the Rehabilitation Act by failing to release indigent disabled arrestees who, with or without reasonable modifications, do not pose a risk of flight or danger to others. Defendants are further violating Section 504 of the Rehabilitation Act by failing to consider whether previous failures to appear, failures to pay, or other alleged technical violations were themselves a result of Defendants’ failures to provide reasonable modifications or to consider arrestees’ poverty. As a result, arrestees with disabilities and unaffordable bail are denied an equal opportunity for pretrial release, and instead remain incarcerated, often experiencing a worsening of their disability-related symptoms.
RELIEF REQUESTED Plaintiffs request that this Court issue the following relief: 1. Assert jurisdiction over this action; 2. An order certifying the primary class and disability subclass, defined above; 3. An order entering judgment in favor of Plaintiffs and against Defendants; 4. A declaratory judgment that the Bail Setting Policy violates Plaintiffs’
rights to equal protection, substantive and procedural due process, right to counsel, and right to open courts as set forth above; 5. A permanent injunction prohibiting the Special District Judge Defendants and District Judge Defendants from maintaining the Bail Setting Policy
49

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 50 of 56
described above, and from failing to provide a prompt bail hearing with constitutionally adequate findings and procedures. Such hearings must occur promptly after arrest and include: a. Advance written notice to the arrestee of the factors to be considered
in setting bail, and in particular notice that evidence of ability to pay is relevant to the setting of bail conditions; b. A meaningful, individualized inquiry into ability to pay; c. Appointment and presence of counsel for the hearing for any arrestee who cannot afford to retain counsel; d. If the court is considering a de facto denial of bail by setting unaffordable bail as the result of clear and convincing evidence that the arrestee presents an unmanageable flight risk or an identifiable and articulable danger to the community, the arrestee must have notice of the evidence in question and an opportunity to testify, present her own evidence, and rebut the evidence against her; e. Reasoned written findings, on the record, of the arrestee’s ability to pay; and f. If a de facto denial of bail by setting unaffordable bail is to be imposed, the court must issue reasoned written findings, on the record and by clear and convincing evidence, that detention is necessary because there is no other less restrictive means of mitigating the arrestee’s unmanageable risk of flight or an
50

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 51 of 56
identifiable and articulable danger to an individual or the community. 6. A permanent injunction prohibiting the Special District Judge Defendants and District Judges from conducting initial appearances and arraignments and making bail determinations in proceedings that are inaccessible to the public; 7. A permanent injunction directing the Special District Judge Defendants and District Judges to adopt a policy of nondiscrimination and the provision of reasonable modifications for arrestees with disabilities participating in initial appearances, arraignments, and bail settings, including: a. Effective communication at and about appearances, arraignments, and bail setting, including the notices described in Section 5(a) and (d); b. A meaningful, individualized inquiry into ability to pay, including consideration of the disability-related limitations upon ability to pay; c. Appointment and presence of counsel for the hearing for any arrestee with a disability who requires counsel to have an equal opportunity to meaningfully participate in appearances, arraignments, and bail settings; d. If a de facto denial of bail by setting unaffordable bail is to be imposed, the court must issue reasoned written findings on the record and by clear and convincing evidence, and taking reasonable
51

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 52 of 56
modifications into account (such as reminders of court hearings), that detention is necessary because there is no other less restrictive means of mitigating the arrestee’s unmanageable risk of flight or an identifiable and articulable danger to an individual or the community, and if de facto denial of bail is to be imposed based on previous failures to appear, failure to pay, or failure to comply with other technical requirements, the court must consider whether such violation(s) were themselves the result of failure by Defendants to make reasonable modifications, and, if so, to disregard that history in evaluation of flight risk; e. Reasoned written findings, on the record, of the arrestee’s ability to pay, including any disability-related limitations on ability to pay; f. Any other reasonable modifications necessary for disabled arrestees to have an equal opportunity to participate in appearances, arraignments, and bail settings, including but not limited to in-person encounters (appearances, arraignments, and bail settings), extra time, quiet settings, and simple language to ensure disabled arrestees can understand and participate equally in proceedings. 8. An order granting reasonable attorneys’ fees and costs under 29 U.S.C. § 794a, 42 U.S.C. § 1988, and 42 U.S.C. § 12133; 9. Reasonable service awards for named Plaintiffs; and 10. Any other relief this Court deems just and proper.
52

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 53 of 56

Respectfully Submitted,

/s/ Twyla Carter (Signed by Filing Attorney with permission of Attorney) Twyla Carter* Washington State Bar Number: 39405 Brandon J. Buskey* Alabama Bar Number: ASB2753-A50B American Civil Liberties Union Foundation, Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 tcarter@aclu.org bbuskey@aclu.org
/s/ Claudia Center (Signed by Filing Attorney with permission of Attorney) Claudia Center* California Bar Number: 158255 Zoe Brennan-Krohn* California Bar Number: 324912 American Civil Liberties Union
Foundation, Disability Rights Program 39 Drumm Street San Francisco, CA 94111 (415) 343-0762 ccenter@aclu.org zbrennan-krohn@aclu.org

/s/ Aaron Lewis (Signed by Filing Attorney with permission of Attorney) Aaron Lewis* California Bar Number: 284244 Covington & Burling LLP 1999 Avenue of the Stars Los Angeles, CA 90067-4643 (424) 332-4800 alewis@cov.com
Amia Trigg* District of Columbia Bar Number: 1023003 Marta Cook* District of Columbia Bar Number: 1045613 Laura Beth Cohen* Michigan Bar Number: P83111 Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, DC 20001-4656 (202) 662-6000 atrigg@cov.com mcook@cov.com lcohen@cov.com

/s/ Megan Lambert Megan Lambert Oklahoma Bar Number: 33216 Ryan Kiesel Oklahoma Bar Number: 21254 Michael Redman Oklahoma Bar Number: 13340 American Civil Liberties Union of
Oklahoma Foundation

53

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 54 of 56
P.O. Box 13327 Oklahoma City, OK 73113 (405) 525-3831 mlambert@acluok.org rkiesel@acluok.org mredman@acluok.org
/s/ Blake Johnson (Signed by Filing Attorney with permission of Attorney) Blake Johnson Oklahoma Bar Number: 32433 Tyler Box Oklahoma Bar Number: 31817 Weston Watts Oklahoma Bar Number: 33299 Justin Williams Oklahoma Bar Number: 32539 Clayburn Curtis Oklahoma Bar Number: 30538 Overman Legal Group, PLLC 809 NW 36th St. Oklahoma City, OK 73118 (405) 605-6718 blakejohnson@overmanlegal.com tylerbox@overmanlegal.com westonwatts@overmanlegal.com justinwilliams@overmanlegal.com claycurtis@overmanlegal.com ATTORNEYS FOR PLAINTIFFS
*Applications for admission pro hac vice pending
Dated: December 10, 2019
54

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 55 of 56 CERTIFICATE OF SERVICE
I affirm that this motion for class certification and supporting brief will be served concurrently with the service of the Summons and Complaint in this matter.
/s/ Amia L. Trigg Amia L. Trigg
55

Case 5:19-cv-01145-JD Document 1 Filed 12/10/19 Page 56 of 56 INDEX OF EXHIBITS
Exhibit A: Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (May 2, 2016) Exhibit B: Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (October 2013) Exhibit C: Christopher T. Lowenkamp, Marie VonNostrand, & Alexander Holsinger, The Hidden Costs of Pretrial Detention, Laura & John Arnold Foundation (November 2013)
56

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 1 of 46
Exhibit A

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 2 of 46
The Heavy Costs of High Bail: Evidence from Judge Randomization
Arpit Gupta∗ Christopher Hansman†
Ethan Frenchman‡§ August 18, 2016
Abstract In the United States, roughly 450,000 people are detained awaiting trial on any given day, typically because they have not posted bail. Using a large sample of criminal cases in Philadelphia and Pittsburgh, we analyze the consequences of the money bail system by exploiting the variation in bail-setting tendencies among randomly assigned bail judges. Our estimates suggest that the assignment of money bail causes a 12% rise in the likelihood of conviction, and a 6–9% rise in recidivism. Our results highlight the importance of credit constraints in shaping defendant outcomes and point to important fairness considerations in the institutional design of the American money bail system.
∗Email: ag2968@columbia.edu; Columbia GSB †Email: cjh2182@columbia.edu; Columbia University ‡Maryland Oﬃce of the Public Defender §We thank Edward Morrison, Ilyana Kuziemko, Anne Milgram, and seminar participants at New York University and Columbia Law School for helpful comments. We are grateful to Joel Mankoski and the Pennsylvania Oﬃce of the Administrative Courts for data access, as well to the Center for Justice at Columbia University for ﬁnancial assistance.
1

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 3 of 46
1 INTRODUCTION
Roughly 450,000 people in the United States are held in jail awaiting trial on any given day.1 These individuals have not been convicted of a crime and are presumed to be innocent of the charges for which they have been jailed. For the majority of defendants the barrier to release is ﬁnancial: they are unable or unwilling to post bail. Due to limited judicial resources, defendants often remain incarcerated for months or years awaiting trial.2 Many defendants who are detained on money bail before trial eventually choose to plead guilty in exchange for release, rather than risking continued detention or an uncertain trial outcome.
There is signiﬁcant evidence of a correlation between pretrial detention and both conviction and recidivism, consistent with a direct impact of bail assessment on defendant outcomes (for instance, Lowenkamp, VanNostrand and Holsinger (2013a), Lowenkamp, VanNostrand and Holsinger (2013b), Phillips (2007), and Phillips (2008)). However, prior research has struggled with causally estimating the impact of money bail due to the endogenous nature of detention hearings.3 When judges determine whether to release an arrestee and the conditions of such release, they consider, among other things, the facts of the case, the strength of the evidence, and the arrestee’s criminal history, ties to the local community, and ﬁnancial resources. These factors may be related to factual guilt and render correlations between money bail assessments and outcomes like convictions and recidivism diﬃcult to interpret.
This paper investigates the causal impact of money bail on convictions and recidivism using comprehensive court data from the two largest cities in Pennsylvania: Philadelphia and Pittsburgh. By money bail, we refer to the requirement that criminal defendants post a cash amount as bail in exchange for freedom before trial.4 In Philadelphia, defendants are assigned bail at a centralized, 24-hour-a-day court presided over by arraignment court magistrates, whom we refer to as judges for convenience. These judges diﬀer in what we call severity, or the propensity to assess bail. All else being equal, some judges assess money bail frequently, while others do so sparingly. The Philadelphia system assigns defendants to bail judges in
1See http://www.bjs.gov/content/pub/pdf/jim14.pdf. 2In our data, the median time between bail arraignment and trial is 200 days. 3A notable exception is Abrams and Rohlfs (2011) who exploit an experiment in Philadelphia in the 1980s. 4Other forms of bail may require non-monetary conditions, or only require the defendant to pay in the event of a non-appearance.
2

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 4 of 46
an eﬀectively random manner, creating a natural experiment that we exploit to determine the role of money bail in determining defendant outcomes. We document that defendants’ assignment to more severe judges raises the probability of being assessed money bail for reasons unrelated to other case factors, including defendant characteristics. This natural experiment allows us to then study the implications of eﬀectively exogenous impositions of money bail on further defendant outcomes.
We ﬁnd that the assessment of money bail is a signiﬁcant, independent cause of convictions and recidivism. In Philadelphia, criminal defendants who are assessed money bail are 12% (6 percentage points) more likely to be convicted. These eﬀects appear to be driven by the subset of cases where arrestees are detained due to their inability to post bail. We also investigate money bail assessment and outcomes in Pittsburgh, where judicial assignment is based on arrest location, and ﬁnd similar results. We combine the Philadelphia and Pittsburgh samples to gain statistical precision in examining the lasting negative eﬀects of money bail after the conclusion of the underlying criminal case. We document that the assessment of money bail increases recidivism in our sample period by 6-9% yearly (0.7 percentage points).
Our results are primarily driven by whether money bail is required and not by the amount of money bail. In other words, the assessment of money bail, rather than the bail size, appears to cause convictions. A key implication of this ﬁnding is that simply lowering required bail amounts will not ameliorate harms imposed by money bail. Our ﬁndings persist among a number of subgroups—non-white defendants, those assigned a public defender, and male defendants. We ﬁnd estimates that are even larger among defendants charged with felonies, though we do not reach statistical signiﬁcance in that sample. This suggests that our eﬀects are not merely driven by convictions for petty crimes.
We do not attempt to isolate the exact channel by which money bail causes convictions and recidivism. Money bail, as a source of pretrial detention, imposes signiﬁcant costs on defendants. As the Supreme Court wrote in Gerstein v. Pugh (420 U.S. 103, 114 [1975]) pretrial detention “may imperil the suspect’s job, interrupt his source of income, . . . impair his family relationships [and aﬀect his] ability to assist in preparation of his defense.” Many defendants who are detained on money bail before trial may consequently choose to plead guilty to avoid
3

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 5 of 46
or minimize further detention. Prosecutors commonly oﬀer detained defendants a plea of “time-served,” where defendants will receive credit for time already spent in detention and will therefore be released immediately upon conviction. Other potential channels include the diﬃculty detained defendants have communicating with their counsel and properly preparing a defense; changes in behavior among various institutional actors such as prosecutors, defense attorneys, judges, and jurors toward defendants who are incarcerated pretrial; the limited opportunity for detained arrestees to participate in diversionary programs and other resolutions not resulting in convictions; and the ﬁnancial strain of making bail.5 Money bail may also directly inﬂuence recidivism through the harms of pretrial incarceration imposed upon those those unable to make bail, post-trial incarceration following conviction, or the stigma of conviction.6
Despite the multiplicity of possible channels, we emphasize that our results provide novel evidence of a causal role of money bail and pretrial detention on defendant outcomes. The relationship between money bail, conviction, and recidivism suggests a strong interaction between poverty and the criminal justice system. A large literature has examined the credit constraints facing American households that make even small money bail amounts diﬃcult to post (see Lusardi, Schneider and Tufano (2011)). While it is feasible that money bail could impact convictions among those with suﬃcient liquid assets to post bail, it is more likely that these eﬀects come primarily from the credit-constrained. It is important to note that a large majority of arrestees in our sample qualiﬁed for representation by the public defender, and therefore are presumably indigent.
The interactions between money bail and subsequent defendant outcomes pose substantive legal issues. From a liberty perspective, these relate to the incarceration of presumptively innocent people and the basic assumption that convictions reﬂect only the merits of the underlying case. Bail also raises equality issues related to the requirement of equal access to justice and the prohibition against wealth discrimination. Racial is a further concern, and we ﬁnd evidence consistent with racial discrimination in bail setting: non-white defendants
5Though bail bondsmen can front bail amounts in exchange for a collateral value which is typically 10%, even these relatively smaller collateral values may be out of reach for criminal defendants facing liquidity constraints. In Philadelphia, the court may accept 10% of the bail amount.
6See, e.g., Baylor (2015);Appleman (2012); Phillips (2008).
4

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 6 of 46
are more likely to be assessed money bail, yet less likely to be found guilty. However, this correlation is suggestive, and may reﬂect unobserved factors that are correlated with race.
Our ﬁndings also raise institutional design questions regarding the American money bail system as a whole. The money bail system in Philadelphia and Pittsburgh has a lot in common with the money bail systems used in many cities around the country, such as New York and Baltimore. Arrestees see a judicial oﬃcer who determines whether to release a person pending trial or impose money bail. Those people who are unable to pay their bail have the opportunity to plead guilty or remain in jail until trial. In systems to the one in Philadelphia and Pittsburgh, our research suggests that money bail causes convictions and recidivism.7
One suggested solution to the perceived inequities of pretrial detention is the adoption of empirical pretrial risk assessments. Such tools, based on multivariate models built from large sets of defendant data, create recommendations for release or conditions of release. Despite the use of such assessment tools in Philadelphia and Pittsburgh in the time period covered by our analysis, judges varied widely in assessing bail amounts for similar defendants, calling into question the ability of such tools to rein in judicial discretion.
To contextualize our ﬁndings on guilt and recidivism, we examine whether the assessment of money bail induces defendants to appear at trial, the stated purpose of the money bail system. As we are unable to explicitly observe defendants failing to appear, we construct two proxies based on the issuance of bench warrants. While these proxies are imperfect — both likely understate the true number of failures to appear — we ﬁnd no evidence that money bail increases the probability of appearance. These results should be interpreted as preliminary, and a more nuanced study of court appearances using more complete date is necessary. Nevertheless it is notable that we are unable to ﬁnd an obvious impact of money bail. Pretrial detention is expensive. Philadelphia spent an estimated $290 million on jailing in 2009, and 57% of the daily jailed population was detained awaiting trial (Eichel, 2010). Rationalizing the costs imposed by money bail (via detention costs, convictions and
7Of course, the impact may diﬀer depending on the population. For instance, in certain places, defendants may be relatively well-oﬀ and have the general ability to pay money bail. In such a place, we would expect that the causal impact of money bail would be lower than in Philadelphia, where many people are too poor to pay their bail.
5

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 7 of 46
recidivism) requires substantial compensating public beneﬁts, and we ﬁnd no evidence that such beneﬁts exist.
Our research has a close connection to the literature on pretrial justice.8 There is a large body of evidence suggesting that pretrial custody status is associated with the ultimate outcomes of criminal cases, with detained defendants consistently faring worse than defendants at liberty (See ABA Standards for Criminal Justice: Pretrial Release 29 (3d. ed. 2007)). Past work has uncovered the correlation between money bail, pretrial detention, and conviction (e.g. Phillips (2007), Phillips (2008)), and examined other policy considerations regarding the design of pretrial detention systems (See Lowenkamp, VanNostrand and Holsinger (2013a), Lowenkamp, VanNostrand and Holsinger (2013b), Bechtel et al. (2012), and Phillips (2012)).
In the economics literature, beyond Abrams and Rohlfs (2011), our work is most closely related to papers utilizing random assignment of judges within the criminal justice system such as Kling (2006), Doyle Jr (2007), Doyle Jr (2008), Mueller-Smith (2016) and Aizer and Doyle (2015), as well as in other contexts, such as Chang and Schoar (2007), and Dobbie and Song (2015). Especially relevant is concurrent and complementary work by Stevenson (2016), which uses a similar approach in Pennsylvania to examine the impacts of pretrial detention on case outcomes. Our work diﬀers in that we also examine recidivism and establish a longterm negative outcome of incarcerations spells. We also diﬀer in that our approach focuses on the decision of judges to set money bail, rather than the detention status of defendants.9
Our paper is structured as follows: Section 2 presents legal background on the money bail system in Philadelphia and Pittsburgh, Section 3 explains our data and empirical strategy, Section 4 contains estimation results, and Section 5 concludes.
2 LEGAL BACKGROUND AND BAIL HEARINGS
2.1 Legal Background
Any person who is arrested without a warrant is entitled to a hearing within 48 hours of arrest, see Cnty. of Riverside v. McLaughlin (500 U.S. 44, 56 [1991]) and (Gerstein, 420 U.S.
8The Pretrial Justice Institute has created an exceptionally detailed bibliography, available at: http://www.pretrial.org/wpfb-file/pji-pretrial-bibliography-pdf/.
9In principle, guilty pleas may be aﬀected by bail setting even when bail is posted due to the ﬁnancial cost of making bail. Our Table 5 examines the consequence of bail setting on the full interaction of outcomes of pre-trial detention and case guilty.
6

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 8 of 46
at 114). At this hearing, a judicial oﬃcer must determine whether there is probable cause for the arrest prior to the imposition of “any signiﬁcant pretrial restraint of liberty.” (Gerstein, 420 U.S. at 125). Across the country, this initial appearance has evolved into a “hearing at which the magistrate informs the defendant of the charge in the complaint, and of various rights in further proceedings, and determines the conditions for pretrial release.” Rothgery v. Gillespie Cnty, Tex (554 U.S. 191, 199 [2008]).
At a bail hearing, judges have a number of options available to them:
1. Release on Recognizance (ROR) — Requires the defendant only to agree to appear at a later date
2. Non-Monetary Conditions — Allows some non-monetary restriction to be placed on the defendant, such as pretrial supervision or a curfew
3. Unsecured Monetary Condition — Written agreement to be liable for a ﬁxed ﬁnancial payment, akin to a promissory note.
4. Secured Monetary Condition — Defendant must satisfy a ﬁnancial condition paid to the court either directly, through a bail bondsman, or other collateral such as real property, in order to secure release
5. No Bail — Defendant is to be held pending trial
A variety of constitutional and legal protections constrain the discretion of judicial oﬃcers in determining whether to detain or release a defendant and what conditions to place on such release. First, pretrial liberty is a fundamental right independently guaranteed by the Constitution. See Foucha v. Louisiana (504 U.S. 71, 80 [1992]); U.S. v. Salerno (481 U.S. 739, 750 [1987]). “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” (Salerno, 481 U.S. at 755). Therefore pretrial detention must be “narrowly focus[ed]” to the government’s “compelling” interests in public safety and return to court. (See Salerno, 481 U.S. at 750-51) and Stack v. Boyle (342 U.S. 1, 4 [1951]); ABA Standards for Criminal Justice: Pretrial Release 37 (3d. ed. 2007). In determining whether to release a defendant, and what conditions to place on such release,
7

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 9 of 46
the judicial oﬃcer must make an individualized assessment of the case and defendant. (See Stack, 342 U.S. at 5).
Bail also raises issues covered under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which has been interpreted to prohibit “punishing a person for his poverty.” Bearden v. Georgia (461 U.S. 660, 671 (1983)). Persons may not be incarcerated solely due to their inability to make a payment. (See Bearden, 461 U.S. at 671) and Tate v. Short (401 U.S. 395 [1971]); Williams v. Illinois (399 U.S. 235 [1970]); and Smith v. Bennett, (365 U.S. 708, 709 [1961]). For this reason such payments must take into account a person’s ﬁnancial resources.
These guarantees ﬁnd a statutory parallel in the Pennsylvania Rule of Criminal Procedure 523, which explicitly requires magistrates to consider arrestees’ ﬁnancial resources when setting money bail.
2.2 Bail Hearings
In Pennsylvania, a magistrate presides over the initial appearance of an arrestee. In Philadelphia particularly, a centralized bail court operates 24 hours a day. Defendants from across the city appear before one of a team of appointed magistrates who conduct the initial detention hearing. Magistrates generally preside via CCTV over satellite locations in the city where arrestees are held. The centralized location, high case load, constant process, and rotating magistrate calendar result in the eﬀectively random assignment of defendants to magistrates (an assumption we test). Importantly for our purposes, magistrates in Philadelphia only preside over the initial appearance; they do not preside over subsequent hearings or trials. As a result, magistrates only impact the case at the bail assessment, and not at later stages.
In Pittsburgh, magistrates are elected to a six-year term to serve in a district court, which administers a particular geographic section of Allegheny county. A single magistrate handles the majority of the arrests that occur within their jurisdiction, although many arrestees are seen by other magistrates during weekends, nights, and other periods when the presiding magistrate is not in service. As a result, defendants in Pittsburgh are assigned to judges in part based on the location and time of their arrest.
8

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 10 of 46
At the pretrial detention hearing in both Pittsburgh and Philadelphia a magistrate hears information from the defendant (or the defendant’s counsel) and the prosecutor relevant to the defendant’s ﬂight risk and public safety. This information includes the many factors set forth in Pennsylvania Rule of Criminal Procedure 523, such as: the nature of the oﬀense, the strength of the evidence, the defendant’s ﬁnancial resources, family and community ties, criminal record, and prior failures to appear. These hearings typically last only a few minutes. In Philadelphia and Pittsburgh, magistrates also employ a empirical risk assessment tool, meant to standardize decisions regarding pretrial detention.10
Should money bail be set, detainees may only secure their release through the satisfaction of its ﬁnancial terms. In Philadelphia, detainees may post 10% of the money bail amount directly to the court.
Detainees who cannot aﬀord the ﬁnancial condition of their release remain incarcerated for months or even years awaiting trial. Detainees have the opportunity to move for a reduction in their money bail after the initial hearing. We focus on the initial assessment of money bail, as it is the product of a randomized judicial decision, and ﬁnd this decision is inﬂuential in determining the ﬁnal amount the defendant is required to pay, regardless of later modiﬁcations.
The timeline of defendant actions around the release determination varies from state to state. In Pennsylvania, the detention hearing precedes the entry of the plea, ensuring that the magistrate’s assessment of money bail is a factor in the defendant’s plea decision from the beginning.
3 DATA AND EMPIRICAL STRATEGY
3.1 Data Summary
We obtained comprehensive criminal data from the Administrative Oﬃce of the Pennsylvania Courts for 2010-2015. These include records from the local magistrate courts as well as
10Although we ﬁnd that these tools do not eliminate the exercise of wide judicial discretion.
9

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 11 of 46
subsequent judicial and defendant decisions from the higher Court of Common Pleas. In Philadelphia, a separate municipal court system typically handles initial arraignments.
Table 1 summarizes the data for our focal region of Philadelphia, where we are best able to establish judicial randomization, as well as Pittsburgh—the second largest jurisdiction in the state. Our data contain information about the entire history of detention determinations and money bail assessments on criminal defendants (although we focus on the money bail amount resulting from the initial hearing); disposition information on the list of charged oﬀenses; bench warrant information; and ﬁnal sentencing outcomes for individual defendants. Our ﬁrst appendix table, Table A1, contains the top 10 most common oﬀenses and basic characteristics of the cases associated with those oﬀenses.
3.2 Empirical Strategy
A simple approach to addressing the role of money bail would be to run the OLS regression:
Guiltit = α + βBailit + εit
where Bailit is an indicator for whether or not individual i is assigned money bail in time t. Table 2 illustrates this strategy. Column 1 suggests that being assessed money bail results in a 1.4 percentage point increase in the probability of pleading guilty. As shown in column 3, this goes up to 4.3 percentage points after adding a battery of additional controls, including gender, race, age, and oﬀense ﬁxed eﬀects. This relationship is conﬁrmed in column 4, where we focus on the log of the bail amount instead of the indicator for money bail assessment. Figure 1 provides an illustration of this correlation for one oﬀense: possession of marijuana. Defendants charged with this oﬀense are substantially more likely to be found guilty when assessed money bail.
While these estimates are consistent with a causal interpretation that higher bail amounts induce convictions, they are also consistent with a spurious correlation resulting from the endogenous bail assessment. Recall that bail assessments are not made randomly, but are intended to be calibrated against the nature of the oﬀense, the ﬂight risk of the individual,
10

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 12 of 46
and even the strength of the case. As these factors are also likely to be associated with the underlying guilt of the defendant, the results from Table 1 may not reﬂect a causal role of bail.
Concerns about the endogenous assignment of bail are heightened by the results shown in Panel A of Figure 2, which displays the coeﬃcients from a regression of money bail on various covariates. While there is a raw univariate correlation with guilt, the assessment of money bail is also associated with gender, race, and prior cases. The correlation of money bail with these covariates is indicative of the endogenous initial assignment of money bail.
The goal of our empirical strategy is to address this endogeneity concern using the eﬀectively random assignment of defendants to judges. Bail judges diﬀer widely in how they treat similarly situated defendants. Some judges are far more likely to impose money bail, and to impose money bail in greater amounts, than other judges. In other words, certain judges over time tend to set bail when other judges would not, all else being equal. We refer to each judge’s propensity to set money bail as the judge’s severity. Therefore, a defendant’s chances of receiving money bail depend on the severity of the bail judge, not just the characteristics of the case and the defendant. Because defendants are close to randomly assigned to bail judges, the judicial assignment serves as the treatment in a natural experiment. We isolate the eﬀect of the severity of the bail judge in setting money bail to determine the role of money bail on defendant outcomes.
The coeﬃcients plotted in Panel B of Figure 2 reﬂect our attempt to isolate the impact of random judicial assignment on guilt. This ﬁgure shows the relationship between a battery of covariates and the component of money bail that is due only to judicial severity. They are created by regressing several covariates on the linear prediction of money bail on a judicial severity measure described below. None of the covariates appear to be related to the fraction of variation in money bail that is driven by judicial variation, indicating random assignment. By contrast, our outcome variable of guilt is associated with our instrument—showing how the judicial assignment of bail can produce causal estimates of the impact of money bail.
Conceptually, our identiﬁcation strategy is to isolate the impact of the judge on the probability that an individual is assigned money bail. One approach would be to use judgespeciﬁc ﬁxed eﬀects to instrument for whether a defendant is assigned bail. This would
11

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 13 of 46

involve estimating a ﬁrst stage, for individual i in court c with judge j, of: Bailicjt = α + γc + δj + vit

and estimating the eﬀect of Bailicjt on guilt in a second stage, where δj are judge ﬁxed eﬀects. However, the assumptions required for IV estimation via two-stage least squares may be violated in ﬁnite samples because of a mechanical correlation in the ﬁrst stage. The estimated judge ﬁxed eﬀects are essentially an average across defendants, and with a small number of cases each defendant contributes signiﬁcantly to the average. As discussed above, a defendant’s own bail assessment is likely to be correlated with unobserved factors that are associated with guilt. If this is true, then averaging that bail assessment with a ﬁnite number of other defendants’ assessments will not in general eliminate the correlation.
A solution to this problem in the literature (e.g., Dobbie and Song (2015)) involves estimating a leave-out mean for each defendant:

1 Zicjt = ncjt − 1

ncjt
(Bailk) − Baili
k=1

1 −
nct − 1

nct
(Bailk) − Baili
k=1

which we refer to as judicial severity. The ﬁrst term of Zicjt is simply the average of Bailkcjt for all individuals faced by judge j except for i (all k = i). The second term subtracts out the average of Bailkcjt at the court c, once again omitting individual i. Intuitively, Zicjt is simply judge j’s average relative to the court’s average, computed using everyone but i. Because Zicjt is computed without using individual i, there is no mechanical correlation. This leave-out mean is then used as an instrument in place of judge ﬁxed eﬀects.

While the exposition above demonstrates a judge-level leave-out mean, our preferred instrument is slightly more granular. To account for possible non-random assignment by oﬀense we compute a leave-out mean at the oﬀense-judge level. That is, the average for a judge for a given oﬀense type, relative to the court average for that oﬀense. For this instrument, we need only assume that individuals of the same oﬀense category are randomly assigned to judges. Our primary speciﬁcations depend on a version of the instrument in

12

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 14 of 46
which Bailit is deﬁned as the binary decision of whether to assign bail or not. However, we also examine alternative continuous measures, including log(1+ bail amount).
Panel A of Figure 3 illustrates our estimate of judicial severity against the log bail amount, showing that judge severity is highly predictive of bail amounts faced by criminal defendants11. Panel B shows that our judge severity measure is consistent over time, suggesting that judge severity is driven by idiosyncratic personal factors rather than temporary shocks or case characteristics (judge severity is even consistent across diﬀerent oﬃces when judges move to serve in other jurisdictions).
In our main speciﬁcations, we instrument for Bailicto with Zictjo, our measure of judge severity taken from a within oﬀense measure:
Guilticto = α + βBailicto + Xictoδ + ηcto + εictjo Bailicto = α + γZictjo + Xictoζ + ρcto + victjo
with errors clustered at the jurisdiction-judge-year level. Our identifying assumption, taken from judge randomization, is that:
corr(Zictjo, εictjo) = 0.
In the next section, we provide supporting evidence for this assumption. It is important to note that these results are created using an instrumental variable
approach that focuses on criminal defendants induced to pay money bail as a result of judicial severity. In other words, we estimate a local average treatment eﬀect (LATE) identiﬁed on the basis of individuals for whom changes in bail assessment resulting from variation in judicial severity impact guilty pleas. These defendants are more likely to represent criminal cases for which there is more scope for judicial variation in bail setting. Nevertheless, we do ﬁnd
11 We measure judicial severity using a leave-out-mean of the log[1 + Money Bail Amount] at the judge-year level, relative to the leave-out-mean average at the court in the same year. These computed judicial measures are then regressed against individual measures of log bail with ﬁxed eﬀects for the month of arraignment. The resulting residuals are averaged at the judge-year level and the average log bail amount is added to each residuals. Panel A contrasts the averaged measure of judicial severity against average log bail amounts at the judge-year level. Panel B compares the averaged measure of judicial severity in one year against the same judge’s measure the previous year.
13

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 15 of 46
that our results persist in a number of important subcategories (including defendants facing felonies), and our results are quite comparable in both Philadelphia and Pittsburgh. These checks suggest that our results have external validity outside of the precise jurisdictions we examine.
3.3 Randomization Check
Though our analysis of the judicial assignment process in Philadelphia leads us to expect close-to-random assignment of cases across judges, we check this assumption by examining the association between our leave-out-mean estimator and a series of defendant covariates in Table 3. Column 1 illustrates the means of the covariates we analyze. Column 2 regresses our instrument against each covariate in isolation with no additional controls and reports the coeﬃcient. Column 3 regresses our instrument against all covariates and includes ﬁxed eﬀects for the most severe oﬀense among the defendant’s charges. Column 4 adds additional month-of-arraignment ﬁxed eﬀects.
Across all speciﬁcations, we ﬁnd strong evidence for random assignment. F-statistics of the joint signiﬁcance of covariates we test against our instrument are 0.54 with only month ﬁxed eﬀects and 0.34 when including both month ﬁxed eﬀects and oﬀense controls.
4 RESULTS
4.1 IV Results
Table 4 presents our main results from Philadelphia. The ﬁrst column shows the ﬁrst stage— a regression of our instrument of judicial severity against a binary indicator of whether the defendant was assessed money bail. While defendants are on average likely to receive money bail (62%), we ﬁnd that judicial factors also play a large role. Our ﬁrst stage suggests strong instrumental validity: being assigned to a more severe judge results in defendants facing a higher likelihood of being assessed money bail. Given the close-to-random assignment to judges and the lack of correlation between our instrument and observable defendant characteristics, we interpret this ﬁrst stage as indicating that judicial severity provides eﬀectively exogenous variation in money bail.
14

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 16 of 46
Column 2 presents the reduced form—a direct regression of our instrument of judge severity against the outcome of guilt. Although this relationship will be attenuated—because not all people who receive a severe judge are impacted by way of higher bail amounts—the strong and signiﬁcant relationship in the reduced form indicates a causal relationship between judge severity and conviction.
The third column scales the reduced form by the ﬁrst stage to produce our instrumental variables estimate of the relationship between money bail and conviction. Our estimate suggests that defendants who are required to pay money bail as a result of being assigned to a severe judge are 6 percentage points more likely be convicted. Given a baseline guilt level of 50% in our sample, our estimate suggests that the presence of money bail increases the likelihood that a defendant is found guilty by about 12%.
This estimate is large, tightly identiﬁed through our measure of judicial severity, and suggests a powerful role for money bail in inducing convictions. Our data do not permit complete analysis of whether convictions result from plea bargains or trials. However, we have strong results when focusing on cases in which we can explicitly observe plea behavior, and cases proceeding to trial appear in our sample only rarely. We believe our estimates are primarily driven by defendant plea behavior.
Table 4 also provides suggestive estimates regarding the role of race in case outcomes. Column 1 shows that non-white defendants are 1.4 percentage points more likely to be assessed money bail. However, columns 2 and 3 show that non-whites are less likely to be found guilty of crimes. While these results should not be interpreted causally, as they do not exploit judicial randomization and may reﬂect non-racial factors associated with race, they are consistent with racial bias in the criminal justice system. They are also consistent with other mechanisms of the legal process. For instance, prosecutors or judges may correct for an initial bias in arrest by dismissing or diﬀerentially pursuing cases involving non-white defendants. While our data do not permit a complete analysis of racial bias in bail setting, this remains an interesting avenue for future research.
We next detail the relationship between money bail, pretrial detention, and convictions. There are a number of paths a defendant may take following the initial bail assessment. We
15

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 17 of 46
consider a categorization of four possible paths in a criminal case: defendants may be detained and found guilty, detained and found not guilty, released and found guilty, or released and found not guilty. Table 5 attempts to analyze the impact of money bail on the ﬂow of defendants between these four categories. Each of the four columns presents an IV regression (as in column 3 of Table 2) with one of those categories as the dependent variable. As the dependent variables across the four columns are mutually exclusive and exhaustive, one of the columns is redundant, in the sense that the coeﬃcients in any row must sum to 0. However, examining all four columns provides a useful picture of the impact of money bail on the path defendants take from bail assessment to their ultimate case outcome.
Since defendants not receiving money bail are presumptively released, we can assume that the imposition of money bail is unlikely to increase the number who are released. Fort this reason, we observe that the judicial assignment of money bail reduces the outcome of release both in column 2 (release and guilty) and column 4 (release and not guilty). Although we are not able to precisely estimate the eﬀects in either column, Table 5 suggests that money bail decreases the probability that a defendant is released and ultimately found guilty by nearly 10 percentage points and decreases the probability that a defendant is released and found not guilty by nearly 8 percentage points.
The reduction in the released population must be matched by an increase in the detained population. Nearly the entire increase falls into the ﬁrst column: we see a 16 percentage point increase in the outcome of detention and guilt. In other words, money bail increases the probability of detention for those who would be counterfactually released, and the majority of the population that is detained as a result of money bail is ultimately convicted.
4.2 Robustness
For robustness, we provide a number of additional checks. Table 6 explores our main IV speciﬁcation as illustrated in column 3 of Table 4 for diﬀerent subsamples—being charged with a felony, having a public defender, being male, and being non-white. While none of these estimates are statistically diﬀerent from our main estimates, it is noteworthy given our ﬁndings on race discussed above that our IV point estimate for non-whites is higher,
16

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 18 of 46
at 8.3 percentage points. Our ﬁnding on felonies, an 8.1 percentage point increase, is not precisely estimated but is high in magnitude and suggestive that instances of guilt induced by higher bail are not for low-level crimes exclusively. Being convicted of a felony typically results in severe long-term impacts on defendant outcomes, including opportunities for future employment and voting status.12
Tables 7 and 8 explore alternate speciﬁcations of our judge severity measure. Table 7 uses the log of 1 plus the bail amount, eﬀectively using both the intensive and extensive margins. Table 8 uses the log of the bail amount, conditional on being assigned money bail—that is, only the intensive margin. In Philadelphia, we ﬁnd no evidence that the intensive margin matters, only the extensive margin of being assessed money bail.
Next, we turn to Pittsburgh. As discussed in section 2, the nature of judicial assignment in Pittsburgh and the rest of the state is not as clean and does not permit a straightforward causal estimate. Rather than a central courtroom that handles all cases, individual magistrate judges are elected to districts in the city and are principally responsible for cases within that jurisdiction. Our judge measure therefore captures the variation arising from the diﬀerence between the principal judge and other judges, which account for 20–30% of cases in districts, typically due to the principal judge being absent on a weekend, night, vacation, or for some other reason. Our identifying assumption is that case loads, conditional on observables, do not diﬀer between the principal judge and other judges in a given district.
A randomization check in Appendix Table A2 suggests that there is non-random judicial assignment in Pittsburgh, with an F-statistic of 4.74 for various defendant characteristics regressed against a measure of judicial severity within Allegheny County. Nonetheless, to establish robustness of our primary ﬁnding outside of the city of Philadelphia, we attempt a version of our main speciﬁcation in Pittsburgh in Table 9. Remarkably, given the extent of non-random assignment, we ﬁnd estimates that are virtually identical in Pittsburgh—in column 3, we see a 6.4 percentage point increase in guilt as a result of money bail assessment. Due to the comparability of the Pittsburgh and Philadelphia samples, in subsequent analysis on recidivism we combine the two samples in order to maximize statistical power.
12Though convicted felons can vote in Pennsylvania.
17

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 19 of 46
Appendix Table A3 examines how our results vary across the distribution of bail amounts. To avoid an endogenous assignment of bail amounts, we ﬁrst categorize oﬀense categories according to the average bail amount into quartiles. Next, we estimate our main IV analysis within each quartile of bail assessment. Interestingly, we ﬁnd that our results appear to be largest in the ﬁrst quartile, where bail amounts are lowest. This suggests that the imposition of money bail, even when bail amounts are low, is suﬃcient to cause convictions.
Appendix Tables A4 and A5 focus on the top ﬁve most common oﬀenses within felonies and misdemeanors. Table A4 highlights the extensive margin and shows coeﬃcients from our main IV speciﬁcation run on individual oﬀenses (without oﬀense ﬁxed eﬀects). Interestingly, our results appear among various categories of theft—retail theft, receiving stolen property, and retail theft (misdemeanor). Our results are somewhat lower and do not reach signiﬁcance for drug oﬀenses, DUIs, and gun possession charges. These results are comparable to Stevenson (2016), who also ﬁnds substantial results among those categories and lower eﬀects on drug and other charges.
Table A5 examines the intensive margin—whether changes in the intensity of bail matter given that bail was set. Interestingly, we only ﬁnd eﬀects here among gun possession misdemeanors. It is possible that the eﬀect could be driven by the relatively high average bail in this category (around $11,000). Though other oﬀense categories also carry high bail amounts (such as aggravated assault), they typically also carry greater consequences which may deter defendants from pleading guilty. Future work will attempt to analyze why responses to bail setting appear to be particularly high in some oﬀenses more than others, which may assist in adjusting pretrial detention standards.
4.3 Other Outcomes
4.3.1 Recidivism
We next look at recidivism, which we explore in Table 10. Existing literature has documented the role of incarceration on future criminal activity.13 There are a variety of mechanisms which appear to drive this relationship, including the negative impact of incarceration on
13See for instance Mueller-Smith (2016) and Aizer and Doyle (2015).
18

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 20 of 46
labor market outcomes (encouraging illegal income seeking), family disruption, loss of human capital, and peer eﬀects resulting from associations with other detainees.
We extend this literature by examining the role of money bail on future criminal activity. There are a number of channels through which money bail in particular might cause recidivism. As our results from section 4.1 show, money bail causes convictions, which in turn may entail incarceration and subsequent eﬀects. Even without additional convictions, money bail may impact future criminal activity via job loss during pretrial detention, ﬁnancial hardship caused by raising funds to make bail, or other factors. Our data do not permit, and we do not attempt, a complete separation of the various mechanisms linking bail assessment to future criminal activity.
We follow some of the prior literature in this area by restructuring our data into a yearly panel format. Our main speciﬁcation follows the ﬁrst criminal oﬀense committed by defendants in our data and estimates:
Recidivismi,t+y = α + Xi,t + µy + µt + βBaili,t + εi,t+y
Where Recidivismi,t+y is a binary indicator equal to one if the defendant is charged with a crime in the yth calendar year after his or her initial charge (where the initial charge year is denoted by t). Xi,t is the full list of defendant controls previously included (these include the age, race, and gender of the defendant; along with controls for the criminal charge) which are taken in the calendar year of criminal charge. µy is a calendar year ﬁxed eﬀect; µt controls for the month of arraignment. Baili,t is an indicator for whether the defendant was required to post money bail, and is instrumented for using our judicial severity measure. β remains the key causal variable of interest, capturing the role of exogenous bail assessments on future recidivism. Our yearly defendant panel begins in the calendar year in which defendants enter our data as a result of initial charge, and ends in 2015 (the last year for which we have criminal charge data). Standard errors are clustered at the defendant level.
The base rate of yearly recidivism in our sample (around 12% in Philadelphia) along with the standard errors of our IV estimates result in some statistical imprecision in our estimate in Philadelphia. In column 1 of Table 10, we examine the role of money bail assessment
19

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 21 of 46
on the yearly probability of future criminal behavior. Though the estimate of 0.007 is quite large economically (corresponding to a 0.7 percentage point yearly increase in the probability of committing future crime, or a 6% increase), we are unable to statistically distinguish this result from zero. In order to gain statistical precision, in column two we expand our sample to a “Combined Sample” which includes data from both Pittsburgh and Philadelphia. Though the judicial assignment process is not as random in Pittsburgh as in Philadelphia, we ﬁnd quite comparable results in both localities in most of our speciﬁcations—including recidivism. We estimate an identical eﬀect of 0.007 in the Combined Sample (or an increase of 9%), an eﬀect which is statistically signiﬁcant at a 5% level.
In columns 3 and 4, we separate future criminal charges into felonies and misdemeanors on the combined sample. We ﬁnd that the bulk of our recidivism result is driven by money bail causing defendants to be charged with misdemeanors, a ﬁnding consistent with prior literature and the intuition that incarceration spells should raise the chances of committing minor crimes more than severe ones.
Our eﬀects can be compared with the literature examining the role of incarceration spells on future criminal activity. Our results are somewhat lower than Aizer and Doyle (2015), who ﬁnd juvenile incarceration increases adult incarceration by 23 percentage points, consistent with a larger role for incarceration spells on the future criminal behavior of younger defendants. Our ﬁnding is more comparable to Mueller-Smith (2016), who ﬁnds that each year of incarceration results in a 4–7 percentage point quarterly increase in post-release criminal activity. While these studies examine the role of incarceration spells on criminal behavior directly, we examine the role of money bail—which is unlikely to be a binding constraint for many defendants, but leads to sizable ﬁnancial costs or detention for some defendants. It is unsurprising our results are somewhat smaller or attenuated as a result, but remain striking in that we ﬁnd evidence that money bail causes recidivism. Though we emphasize the statistical imprecision of our estimates, our results suggest that the assessment of money bail yields substantial negative externalities in terms of additional crime.
20

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 22 of 46
4.3.2 Failure to Appear
We ﬁnally analyze whether money bail impacts the probability that a defendant appears in court. While we do not explicitly observe failures to appear, we construct a series of proxies. The ﬁrst, which we label “Explicit FTA”, is our most conservative. It reﬂects an explicit entry in the court calendar ﬁles of a warrant being issued as a result of the defendant failing to appear. While this surely captures instances in which the defendant failed to appear, the ﬁles lack a standard coding procedure, and so this measure may underreport the true number of failures to appear.14 Our second measure, “Warrant” indicates whether a warrant was issued at a scheduled court calendar event. This event is consistently coded when it occurs in the calendar ﬁles, but may capture warrants issued for reasons other than failures to appear. This measure has a higher mean than Explicit FTA, occurring in approximately one out of a hundred cases, but still may underreport the true number of failures to appear.
Table 11 presents IV regressions as in column 3 of Table 4, but with Explicit FTA and Warrant as the dependent variables. The left columns restrict the sample to Philadelphia, while the right columns include the Combined Sample of Philadelphia and Pittsburgh. The coeﬃcients on money bail are positive and insigniﬁcant in all speciﬁcations. While the imprecision of these estimates prevents us from drawing much from these results, we note that the goal of money bail is to ensure appearance at trial, that is, to have a substantial negative eﬀect on failures to appear. Our results suggest that money bail has a negligible eﬀect or, if anything, increases failures to appear.
Of course, a substantial caveat to these results is imposed by the limitations of our data, which rely on proxies to measure defendants’ failures to appear. By contrast, prior research has found diﬀerent estimates of appearance rates. For instance, Abrams & Rohlfs (2011) document that, in 2000, 22% of U.S. defendants failed to appear while 16% of those released on bail were rearrested. They also document in Philadelphia defendants failed to appear around 10–13% of the time. Our analysis focuses on later periods, and measures failures to appear among all defendants. Primarily, however, we use administrative court data to trace either: 1) when court appearances were shifted due to defendant non-appearance, or 2) when
14The average of the binary indicator for this measure is extremely small: 0.001, likely reﬂecting this underreporting.
21

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 23 of 46
a warrant was issued. It is possible that defendants who fail to appear may be warned prior to a warrant being issued, though we expect that the court appearance data will still count that event as a failure to appear.
We emphasize the incompleteness of our available data on failures to appear. It is possible in particular that our estimates may under-estimate the role of non-appearances in the criminal justice system. We examine the role of money bail assessment on defendants’ probability of appearing in court the best we can, and ﬁnd little evidence of a connection.
5 CONCLUSION
Our ﬁndings raise substantial questions about the nature of the money bail system. We ﬁnd substantial variation among individual magistrates in setting money bail, suggesting that the imposition of money bail, and therefore pretrial detention, is a function of the judge one receives. We exploit the random assignment of defendants to judges to examine the causal implications of money bail. Defendants assessed money bail have a 6 percentage point (12%) higher chance of conviction and a 0.7 percentage point higher yearly probability of being charged with further crimes (or a 6–9% increase). Our results are robust to alternative speciﬁcations and examining diﬀerent subgroups. Our results tend to be higher on the extensive margin—whether money bail was set at all—than the intensive amount of diﬀerent bail amounts. Broadly, our results seem to be highest among relatively minor oﬀenses: those with low average bail amounts or oﬀenses related to retail theft. However, we do ﬁnd eﬀects which are sizable, if not signiﬁcant, among defendants charged with felonies.
These results have implications for both our understanding of criminal defendants’ economic circumstances and the institutional design of the American money bail system. Existing research shows that a quarter of Americans report that they cannot come up with $2,000 in 30 days (Lusardi, Schneider and Tufano (2011)), and we demonstrate how these liquidity issues have real impacts on household outcomes. The demands of money bail are quite low for those with easy access to cash, so we expect our ﬁndings are largely driven by those facing severe liquidity constraints.
22

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 24 of 46
We also document how money bail impacts the later outcome of recidivism, potentially through channels of pretrial detention, the ﬁnancial imposition of paying bail, or the impact of post-conviction incarceration spells. Our work complements other literature demonstrating how incarceration causally inﬂuences future criminal behavior (for instance, Mueller-Smith (2016) and Aizer and Doyle (2015)), but diﬀers by providing a link to the pretrial process.
From a legal perspective, our work raises both conceptual and practical issues. Examining the pretrial detention phase of the criminal justice system is particularly topical given the recent policy focus on reducing the incarcerated population in the United States. While sentencing decisions may involve tradeoﬀs between harms to criminal defendants and the goals of punishment, our analysis indicates a much weaker tradeoﬀ regarding the imposition of money bail on criminal defendants. Money bail imposes many costs on society —including those stemming from pretrial detention, convictions, and recidivism — yet we ﬁnd no evidence that money bail results in positive outcomes, such as an increase in defendants’ rate of appearance at court. Reducing the number of arrestees held pretrial may be a relatively low-cost way of decreasing the size of the incarcerated population.
The system of money bail also raises substantive issues related to equal protection. Past work has noted the potential for racial discrimination in the bail system (e.g. Ayres and Waldfogel, 1994) and we ﬁnd suggestive evidence consistent with this notion: non-white defendants are assessed bail more frequently, despite being convicted less often. However, our primary result highlights the importance of wealth in access to justice. Many defendants appear to be found guilty simply due to an inability to pay money bail, indicating two systems: one for the rich and one for the poor.
23

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 25 of 46
References
Abrams, David S, and Chris Rohlfs. 2011. “Optimal Bail and the Value of Freedom: Evidence from the Philadelphia Bail Experiment” Economic Inquiry, 49(3): 750–770.
Aizer, Anna, and Joseph J. Doyle. 2015. “Juvenile Incarceration, Human Capital, and Future Crime: Evidence from Randomly Assigned Judges” The Quarterly Journal of Economics, 130(2): 759–803.
Appleman, Laura I. 2012. “Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth Amendment” Washington and Lee Law Review, 69(3): 1297–1369.
Ayres, Ian, and Joel Waldfogel. 1994. “A Market Test for Race Discrimination in Bail Setting” Stanford Law Review, 46(5): 987–1047.
Baylor, Amber. 2015. “Beyond the Visiting Room: A Defense Council Challenge to Conditions in Pretrial Conﬁnement” Cardozo Public Law, Policy and Ethics Journal, 14(1): 1– 229.
Bechtel, Kristin, John Clark, Michael R Jones, and David J Levin. 2012. “Dispelling the Myths: What Policy Makers Need to Know About Pretrial Research” Pretrial Justice Institute.
Chang, Tom, and Antoinette Schoar. 2007. “Judge Speciﬁc Diﬀerence in Chapter 11 and Firm Outcomes” Unpublished manuscript. Massachusetts Institute of Technology.
Dobbie, Will, and Jae Song. 2015. “Debt Relief and Debtor Outcomes: Measuring the Eﬀects of Consumer Bankruptcy Protection” American Economic Review, 105(3): 1272– 1311.
Doyle Jr, Joseph J. 2007. “Child Protection and Child Outcomes: Measuring the Eﬀects of Foster Care” The American Economic Review, 97(5): 1583–1610.
Doyle Jr, Joseph J. 2008. “Child Protection and Adult Crime: Using Investigator Assignment to Estimate Causal Eﬀects of Foster Care” Journal of Political Economy, 116(4): 746– 770. 24

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 26 of 46
Eichel, L. 2010. “Philadelphia’s Crowded, Costly Jails: the Search for Safe Solutions” Philadelphia: Pew Charitable Trusts.
Kling, Jeﬀrey R. 2006. “Incarceration Length, Employment, and Earnings” The American Economic Review, 96(3): 863.
Lowenkamp, Christopher T, Marie VanNostrand, and Alexander Holsinger. 2013a. “The Hidden Costs of Pretrial Detention” Laura and John Arnold Foundation.
Lowenkamp, Christopher T, Marie VanNostrand, and Alexander Holsinger. 2013b. “Investigating the Impact of Pretrial Detention on Sentencing Outcomes” Laura and John Arnold Foundation.
Lusardi, Annamaria, Daniel Schneider, and Peter Tufano. 2011. “Financially Fragile Households: Evidence and Implications” Brookings Papers on Economic Activity, 42(1): 83–134.
Mueller-Smith, Michael. 2016. “The Criminal and Labor Market Impacts of Incarceration” Unpublished manuscript, University of Michigan.
Phillips, Mary T. 2007. “Bail, Detention, and Nonfelony Case Outcomes” New York City Criminal Justice Agency, INC.
Phillips, Mary T. 2008. “Bail, Detention, and Felony Case Outcomes” New York City Criminal Justice Agency, INC.
Phillips, Mary T. 2012. “A Decade of Bail Research in New York City” New York City Criminal Justice Agency, INC.
Stevenson, Megan. 2016. “Distortion of Justice: How the Inability to Pay Bail Aﬀects Case Outcomes” Unpublished manuscript, University of Pennsylvania.
25

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 27 of 46
Figure 1 Guilt by Bail Status: Possession of Marijuana

.8

.6

Proportion Guilty

.4

.2

0

No Bail Set

Bail Set

26

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 28 of 46
Figure 2 Randomization Check: Regression Coeﬃcients of Covariates on Money Bail
Panel A: Raw Association With Money Bail

.15

.1

.05

Association with Money Bail

0

−.05

Non−White Race Recorded

Male

Prior Cases

Guilty

Panel B: Money Bail as Instrumented by Judicial Severity

.15

.1

.05

Association with Money Bail

0

−.05

Non−White Race Recorded

Male

Prior Cases

Guilty

27

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 29 of 46
Figure 3 Panel A: Judicial Severity vs. Log Bail Amount

15

10

5

Log Bail Amount

0

−5

−5

0

5

10

Judge Severity

Panel B: Judicial Severity t-1 v. Severity in t

10

5

Severity Measure, t − 1

0

−5

−5

0

5

10

Judge Severity, t

28

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 30 of 46

Table 1 Summary Statistics

Philadelphia Pittsburgh

Mean SD Mean SD

Age Non-White Race Missing Male Prior Cases Total Oﬀenses Case Guilty Total Bail Money Bail Posted Money Bail Bench Warrant Charged With Future Crime

33.5 0.56 0.12 0.81 0.42 3.42 0.50 24083 0.62 0.31 0.019 0.43

11.6 -
2.95 -
74891 -

33.4 0.42 0.027 0.77 0.33 4.68 0.77 12964 0.53 0.24 0.15 0.33

11.7 -
3.48 -
28697 -

Sample Size

203188

57145

The sample includes criminal cases in Philadelphia and Pittsburgh in the period 2010–2015. Bail information is reported from the magistrate level; case disposition information is taken from the most severe oﬀense for which the defendant was charged; and bench warrant information is taken from a merged dataset of all bench warrants ﬁled in association with a particular docket. Prior cases are taken within our sample, so the measure does not account for crimes committed in the period prior to our sample. Defendants are recorded as having posted money bail if money bail was initially set and their bail status was at some point listed as posted.

29

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 31 of 46

Table 2 OLS Regressions of Guilt on assigned Bail

No Controls Oﬀense FEs Full Controls Full Controls

(1)

(2)

(3)

(4)

Any Money Bail

0.014∗ (0.008)

0.092∗∗∗ (0.007)

0.043∗∗∗ (0.006)

Log(Money Bail)

0.004∗∗∗ (0.001)

Proportion Guilty N

0.498 200643

0.498 200643

0.498 200617

0.498 200617

Case Controls

No

No

Yes

Yes

Oﬀense FEs

No

Yes

Yes

Yes

Month FEs

Yes

Yes

Yes

Yes

OLS regressions of a binary indicator of a case disposition of guilt on a binary indicator equal to 1 if money bail is initially assigned to the case (Columns 1-3) or the continuous measure log[1+money bail amount] (column 4). Case controls include age, age2, prior cases, number of oﬀenses, and indicators for race, gender and out-of-state.Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the judge-year level * p < 0.10, ** p < 0.05, *** p < 0.01.

30

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 32 of 46

Table 3 Randomization Tests

Joint Regressions

Means Pairwise No Controls Controls

(1)

(2)

(3)

(4)

Non-White Race Missing Male Age Out of State Prior Cases

0.56 0.12 0.81 33.5 0.031 0.42

0.00035 (0.000) -0.00026 (0.001) 0.00053 (0.001) -0.0000010 (0.000) 0.0018 (0.001) 0.00013 (0.000)

0.00037 (0.001) -0.000015 (0.001) 0.00043 (0.001) -0.00000041 (0.000) 0.0019 (0.001) 0.00013 (0.000)

0.00020 (0.001) -0.00014 (0.001) -0.000066 (0.001) 0.000016 (0.000) 0.0026 (0.002) 0.00037 (0.001)

N. of cases F-Statistic

200617 0.54

200617 0.34

Oﬀense FEs Month FEs

No

Yes

Yes

No

No

Yes

OLS regressions of our judge severity measure on case characteristics for the Philadelphia sample. Column 1 presents means of case characteristics. Column 2 presents coeﬃcients of separate bivariate regressions of the judge severity measure on each case characteristic. Column 3 contains the coeﬃcients from a single regression of the judge severity measure on all case characteristics and month ﬁxed eﬀects. Column 4 shows the coeﬃcients from a regression identical to column 3, but additionally including oﬀense ﬁxed eﬀects. F-statistics are reported for the test of joint signiﬁcance of all shown case characteristics. * p < 0.10, ** p < 0.05, *** p < 0.01.

31

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 33 of 46

Table 4 IV Regressions of Guilt on Money Bail

First Stage Reduced Form

IV

Severity Any Money Bail Non-White Male

Any Money Bail (1) 0.587∗∗∗
(0.028)
0.014∗∗∗ (0.003) 0.077∗∗∗ (0.006)

Case Guilty (2) 0.036∗∗
(0.017)
−0.026∗∗∗ (0.003) 0.026∗∗∗ (0.003)

Case Guilty (3)
0.061∗∗ (0.028) −0.027∗∗∗ (0.003) 0.021∗∗∗ (0.003)

Mean of Dep. Var. N

0.623 200617

0.498 200617

0.499 200615

Case Controls

Yes

Oﬀense FEs

Yes

Month FEs

Yes

Yes

Yes

Yes

Yes

Yes

Yes

IV regressions of a binary indicator of a case disposition of guilt (Case Guilty) on a binary indicator equal to 1 if money bail is initially assigned (Any Money Bail) instrumented by our judge severity measure based on Any Money Bail. Only the Philadelphia sample is included. The ﬁrst column presents the ﬁrst stage, an OLS regression of Any Money Bail on our judge severity measure. The second column presents the reduced form: a regression of Case Guilty on our judge severity measure. The ﬁnal column presents the IV regression itself. Case controls include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the judge-year level * p < 0.10, ** p < 0.05, *** p < 0.01.

32

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 34 of 46

Table 5 IV Regressions of Guilt × Detention Status on Money Bail

Guilty

Not Guilty

Any Money Bail Non-White Male

Detained Released Detained Released

(1)

(2)

(3)

(4)

0.161∗∗∗ −0.098∗ (0.059) (0.060)

0.014 −0.077 (0.050) (0.053)

−0.006∗∗ −0.021∗∗∗ 0.029∗∗∗ −0.003 (0.002) (0.003) (0.003) (0.004)

0.029∗∗∗ −0.008 (0.005) (0.005)

0.028∗∗∗ −0.049∗∗∗ (0.006) (0.006)

Mean of Dep. Var. 0.226

N

200615

0.272 200615

0.178 200615

0.323 200615

Case Controls Oﬀense FEs Month FEs

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

IV regressions of a binary indicator of a new measure of full defendant outcomes on a binary indicator equal to 1 if money bail is initially assigned (Any Money Bail) instrumented by our judge severity measure based on Any Money Bail. Only the Philadelphia sample is included. Outcomes for defendants are split into four categories corresponding to the interaction of being detained and a case disposition of guilty. Detained defendants were either remanded without the ability to post bail, or failed to post bail given the assessment of money bail. Released individuals either did not receive money bail or posted money bail. Each of the four columns presents an IV regression with one of those category as the dependent variable. Case controls include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the judge-year level * p < 0.10, ** p < 0.05, *** p < 0.01.

33

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 35 of 46

Table 6 IV Regressions of Guilt on Money Bail by Case Characteristics

Any Money Bail Non-White Male

Felony Public Defender Male Non-White

(1)

(2)

(3)

(4)

0.081 (0.061)

0.054∗ (0.029)

0.060∗ (0.032)

0.083∗∗ (0.034)

−0.045∗∗∗ (0.003)

−0.026∗∗∗ (0.003)

−0.026∗∗∗ (0.003)

0.020∗∗∗ (0.006)

0.024∗∗∗ (0.004)

0.024∗∗∗ (0.004)

Proportion Guilty 0.541

N

94658

0.492 126757

0.509 162691

0.515 112280

Case Controls

Yes

Yes

Yes

Yes

Oﬀense FEs

Yes

Yes

Yes

Yes

Month FEs

Yes

Yes

Yes

Yes

IV regressions of a binary indicator of case dispositions on a binary indicator equal to 1 if money bail is initially assigned (Any Money Bail) instrumented by our judge severity measure based on Any Money Bail. Only the Philadelphia sample is included. Each column restricts to the subsample indicated in the column header. Felony refers to defendants are who are charged with a felony oﬀenses, public defender refers to defendants represented by public defenders. Case controls include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the judge-year level * p < 0.10, ** p < 0.05, *** p < 0.01.

34

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 36 of 46

Table 7 IV Regressions of Guilt on Log(Money Bail)

First Stage Reduced Form

IV

Severity Log(Money Bail) Non-White Male

Log(Money Bail) (1) 0.561∗∗∗
(0.027)
0.153∗∗∗ (0.024) 0.829∗∗∗ (0.058)

Case Guilty (2) 0.004∗
(0.002)
−0.026∗∗∗ (0.003) 0.026∗∗∗ (0.003)

Case Guilty (3)
0.006∗∗ (0.003) −0.027∗∗∗ (0.003) 0.021∗∗∗ (0.004)

Mean of Dep. Var. N

5.695 200617

0.498 200617

0.499 200615

Case Controls

Yes

Oﬀense FEs

Yes

Month FEs

Yes

Yes

Yes

Yes

Yes

Yes

Yes

IV regressions of a binary indicator of a case disposition of guilt (Case Guilty) on the continuous measure log[1+money bail amount] (Log(Money Bail)) instrumented by our judge severity measure based on Log(Money Bail). Only the Philadelphia sample is included. The ﬁrst column presents the ﬁrst stage, an OLS regression of Log(Money Bail) on our judge severity measure. The second column presents the reduced form: a regression of Case Guilty on our judge severity measure. The ﬁnal column presents the IV regression itself. Case controls include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the judge-year level * p < 0.10, ** p < 0.05, *** p < 0.01.

35

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 37 of 46

Table 8 IV Regressions of Guilt on Log(Money Bail) – Intensive Margin

First Stage

Reduced Form

IV

Severity

Log(Money Bail | Bail>0) (1)
0.489∗∗∗ (0.035)

Case Guilty (2)
−0.006 (0.008)

Case Guilty (3)

Log(Money Bail | Bail > 0) Non-White Male

0.047∗∗∗ (0.007)
0.344∗∗∗ (0.021)

−0.037∗∗∗ (0.002)
0.019∗∗∗ (0.004)

−0.013 (0.016)
−0.036∗∗∗ (0.002)
0.023∗∗∗ (0.006)

Mean of Dep. Var. N

9.143 124352

0.506 124352

0.499 124338

Case Controls Oﬀense FEs Month FEs

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

IV regressions of a binary indicator of a case disposition of guilt (Case Guilty) on the continuous measure log[money bail amount], instrumented by our judge severity measure based on log[money bail amount]. Only the Philadelphia sample is included, and defendants with no money bail are excluded. The ﬁrst column presents the ﬁrst stage, an OLS regression of log[money bail amount] on our judge severity measure. The second column presents the reduced form: a regression of Case Guilty on our judge severity measure. The ﬁnal column presents the IV regression itself. Case controls include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the judge-year level * p < 0.10, ** p < 0.05, *** p < 0.01.

36

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 38 of 46

Table 9 IV Regressions of Guilt on Money Bail – Pittsburgh

First Stage Reduced Form

IV

Severity Any Money Bail Non-White Male

Any Money Bail (1) 0.391∗∗∗
(0.026)
0.107∗∗∗ (0.006) 0.084∗∗∗ (0.006)

Case Guilty (2) 0.025∗
(0.013)
−0.004 (0.006) 0.053∗∗∗ (0.006)

Case Guilty (3)
0.064∗∗ (0.031) −0.011 (0.007) 0.047∗∗∗ (0.006)

Mean of Dep. Var. N

0.495 38149

0.777 38149

0.766 38141

Case Controls

Yes

Oﬀense FEs

Yes

Month FEs

Yes

Yes

Yes

Yes

Yes

Yes

Yes

IV regressions of a binary indicator of a case disposition of guilt (Case Guilty) on a binary indicator equal to 1 if money bail is initially assigned (Any Money Bail) instrumented by our judge severity measure based on Any Money Bail. Only the Allegheny county (Pittsburgh) sample is included. The ﬁrst column presents the ﬁrst stage, an OLS regression of Any Money Bail on our judge severity measure. The second column presents the reduced form: a regression of Case Guilty on our judge severity measure. The ﬁnal column presents the IV regression itself. Case controls include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the oﬃce-judge-year level * p < 0.10, ** p < 0.05, *** p < 0.01.

37

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 39 of 46

Table 10 IV Panel Regressions of Recidivism on Money Bail

Philadelphia

Combined Sample

Any Money Bail Non-White Male

All Charges (1)
0.007 (0.008)
−0.012∗∗∗ (0.001)
0.026∗∗∗ (0.001)

All Charges (2)
0.007∗∗ (0.004)
−0.008∗∗∗ (0.001)
0.017∗∗∗ (0.001)

Felony Misdemeanor

(3)

(4)

0.002 (0.003)

0.006∗∗ (0.003)

0.003∗∗∗ −0.012∗∗∗ (0.001) (0.001)

0.018∗∗∗ 0.002∗∗∗ (0.001) (0.001)

Mean of Dep. Var. N

0.117 522395

0.0811 862163

0.0442 862163

0.0424 862163

Case Controls

Yes

Oﬀense FEs

Yes

Month of Initial Oﬀense FEs

Yes

Calendar Year FEs

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

IV regressions of recidivism on a binary indicator equal to 1 if money bail is initially assigned (Any Money Bail) instrumented by our judge severity measure. Recidivism is a binary indicator equal to one if the defendant is charged with a new oﬀense in the current calendar year following the case in question. Only the IV regression is displayed in each column. Defendants are included in a yearly panel starting with the calendar year of oﬀense until 2015 (the last year for which we have criminal charge data). Case controls are taken from the ﬁrst case in our records only, and include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Subsequent charges are included only as instances of recidivism. Oﬀense and month of arraignment ﬁxed eﬀects are also included, as are controls for the calendar year. The ﬁrst column includes data only from Philadelphia (episodes of recidivism may reﬂect future crimes committed anywhere else in the state); the remaining columns include combined data from Pittsburgh and Philadelphia (the “Combined Sample”). Column 3 uses as a dependent variable only future crimes which are classiﬁed as felonies; column 4 focuses on future misdemeanor oﬀenses. Standard errors are clustered at the defendant level * p < 0.10, ** p < 0.05, *** p < 0.01.

38

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 40 of 46

Table 11 IV Regressions of Failure to Appear on Money Bail

Philadelphia

Combined Sample

Explicit FTA Warrant Explicit FTA Warrant

(1)

(2)

(3)

(4)

Any Money Bail

0.003 (0.003)

0.018 (0.021)

0.002 (0.002)

0.005 (0.008)

Non-White

−0.000 (0.000)

−0.001 (0.001)

−0.000 (0.000)

−0.001 (0.001)

Male

−0.000 (0.000)

−0.000 (0.002)

−0.000 (0.000)

0.000 (0.001)

Mean of Dep. Var. N

0.001 200615

0.010 200615

0.001 238614

0.007 299779

Case Controls Oﬀense FEs Month FEs

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

IV regressions of binary indicators for failing to appear (FTA) at court dates on a binary indicator equal to 1 if money bail is initially assigned (Any Money Bail) instrumented by our judge severity measure based on Any Money Bail. The two columns present two diﬀerent variables indicating that the defendant failed to appear. Calendar FTA is an indicator equal to one if the defendant is explicitly listed as having failed to appear at a scheduled calendar event in the data. Bench Warrant FTA is an indicator if a bench warrant was issued for the defendant. Only the Philadelphia sample is included. Case controls include age, age2, prior cases, number of oﬀenses, and an indicator for out-of-state. Oﬀense and month of arraignment ﬁxed eﬀects are also included. Standard errors are clustered at the judge year level * p < 0.10, ** p < 0.05, *** p < 0.01.

39

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 41 of 46
Appendix
40

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 42 of 46
41

Table A1: Common Oﬀenses

Count Any Money Bail Bail Amount Non-White Male

Intentional Possession of a Controlled Substance

22,846

15%

Manufacture, Delivery, or Possession With Intent to Manufacture or Deliver 18,913

87%

Aggravated Assault

12,417

97%

DUI: 1st Oﬀense

11,436

27%

Retail Theft-Take Merchandise

10,424

36%

Simple Assault

6,293

84%

Possession of Instrument Of Crime W/Intent to Employ

6,081

85%

Receiving Stolen Property

5,865

55%

Possession Of Marijuana

5,641

10%

Purchase or receipt of Controlled Substance by Unauthorized Person

5,518

11%

$643 $17,511 $49,645 $2,166 $1,284 $4,449 $10,928 $14,205
$433 $288

48%

84%

56%

92%

63%

77%

43%

82%

58%

63%

54%

80%

54%

66%

59%

85%

72%

92%

35%

76%

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 43 of 46

Table A2: Randomization Check in Pittsburgh

Joint Regressions

Means Pairwise No Controls Controls

(1)

(2)

(3)

(4)

Non-White Race Missing Male Age Out of State Prior Cases

0.42 0.027 0.77 33.4 0.029 0.33

0.019∗∗∗ (0.002) 0.0050 (0.007) 0.014∗∗∗ (0.003) -0.00011 (0.000) 0.015∗∗ (0.007) -0.0063∗∗∗ (0.002)

0.019∗∗∗ (0.002) 0.015∗∗ (0.007) 0.013∗∗∗ (0.003) -0.000042 (0.000) 0.016∗∗ (0.007) -0.0060∗∗ (0.002)

0.015∗∗∗ (0.004) -0.013 (0.011) 0.0093∗∗∗ (0.003) 0.000053 (0.000) 0.014∗ (0.009) 0.0036 (0.003)

N. of cases F-Statistic

38149 20.0

38149 4.74

Oﬀense FEs Month FEs

No

Yes

Yes

No

No

Yes

42

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 44 of 46

Table A3: IV Speciﬁcation by Bail Amounts

Any Money Bail
Age Age2
Non-White
Race Missing
Male
Oﬀense Controls Other Controls Oﬃce × Month

1st Quartile (1)
0.097∗∗ (3.05) 0.014∗∗ (10.44) -0.00016∗∗ (-10.29) -0.040∗∗ (-5.82) -0.22∗∗ (-23.65) -0.021∗∗ (-3.95)
Yes Yes Yes

2nd Quartile (2)
0.013 (0.07) 0.0047 (1.52) -0.000039 (-1.12) 0.011∗ (2.11) -0.16∗∗ (-8.70) 0.036∗∗ (3.08)
Yes Yes Yes

3rd Quartile (3)
0.068 (0.57) -0.0078∗∗ (-4.06) 0.000084∗∗ (3.37) -0.063∗∗ (-11.55) -0.20∗∗ (-9.96) 0.11∗∗ (6.86)
Yes Yes Yes

4th Quartile (4)
0.040 (0.30) -0.0097∗∗ (-7.25) 0.00011∗∗ (6.03) -0.055∗∗ (-8.32) -0.19∗∗ (-13.71) 0.033∗∗ (4.21)
Yes Yes Yes

N. of cases Avg. Bail Amount

43974 734.2

47396 3638.5

46327 14974.9

46047 65859.3

Marginal eﬀects; t statistics in parentheses (d) for discrete change of dummy variable from 0 to 1 ∗ p < 0.05, ∗∗ p < 0.01

43

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 45 of 46

Table A4: IV Speciﬁcation by Bail Amounts, Extensive Margin

IV Coeﬃcient N Avg. Bail

(1)

(2)

(3)

Drug Possession, Distribute Aggravated Assault Burglary Retail Theft Receiving Stolen Property
Possession of Drugs 1st DUI Simple Assault Gun Possession Retail Theft Oﬀense Controls Other Controls Oﬃce × Month

Panel A: Felonies

0.016

23652 16940.5

(0.27)

-0.33∗

12382 49633.7

(-2.36)

-0.086

4420 20715.6

(-0.43)

0.24∗

4323 2075.2

(2.59)

0.21∗

3644 20077.5

(2.38)

Panel B: Misdemeanors

0.023

22776 542.1

(0.62)

0.024

11419 2166.3

(0.56)

0.048

6270 4449.4

(0.71)

0.019

6064 10927.9

(0.20)

0.11∗

6059 719.6

(2.03)

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Marginal eﬀects; t statistics in parentheses (d) for discrete change of dummy variable from 0 to 1 ∗ p < 0.05, ∗∗ p < 0.01

44

Case 5:19-cv-01145-JD Document 1-1 Filed 12/10/19 Page 46 of 46

Table A5: IV Speciﬁcation by Bail Amounts, Intensive Margin

IV Coeﬃcient N Avg. Bail

(1)

(2)

(3)

Drug Possession, Distribute Aggravated Assault Burglary Retail Theft Receiving Stolen Property
Possession of Drugs 1st DUI Simple Assault Gun Possession Retail Theft Oﬀense Controls Other Controls Oﬃce × Month

Panel A: Felonies

-0.016

20336 16940.5

(-0.98)

-0.020

12033 49633.7

(-0.62)

0.046

4185 20715.6

(1.27)

0.059

2318 2075.2

(1.01)

-0.39

2078 20077.5

(-0.83)

Panel B: Misdemeanors

-0.100∗∗

3412 542.1

(-2.90)

-0.021

3090 2166.3

(-0.55)

-0.022

5239 4449.4

(-0.67)

0.096∗∗

5147 10927.9

(2.84)

-0.027

1442 719.6

(-0.68)

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Marginal eﬀects; t statistics in parentheses (d) for discrete change of dummy variable from 0 to 1 ∗ p < 0.05, ∗∗ p < 0.01

45

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 1 of 27
Exhibit B

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 2 of 27
UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION
Michael R. Jones Washington, D.C.
October 2013

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 3 of 27
1

TABLE OF CONTENTS

Acknowledgements .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 2
Study Summary .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 3
Introduction.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 4
Method. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 6
Defendants were assessed for their pretrial risk, and nearly 70% scored in the lower two of four risk categories. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 6
Defendants received either unsecured or secured bonds, and were separated into four groups to enable analysis of bond-type comparisons.. .  .  . 7
Goals of the study. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 9
Results. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 10
Unsecured bonds are as effective as secured bonds at achieving public safety. .  .  .  .  .  .  .  .  .  .  . 10
Unsecured bonds are as effective as secured bonds at achieving court appearance..  .  .  .  .  .  . 11
Unsecured bonds free up more jail beds than do secured bonds because more defendants with unsecured bonds post their bonds..  .  .  .  . 12
The monetary amount of secured bonds affected pretrial release rates but not court appearance rates.. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 13

Unsecured bonds also free up more jail beds than do secured bonds because defendants with unsecured bonds have faster release times.. .  .  . 14
Unsecured bonds are as effective as secured bonds at “fugitive-return” for defendants who have failed to appear.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 16
Many defendants are incarcerated for the pretrial duration of their case and then released to the community upon case disposition.. .  .  .  .  .  .  .  .  . 17
Discussion and Implications for Policy Making .  .  . 19
The type of bond set by the court has a direct impact on the amount of jail beds consumed, but it does not impact public safety and court appearance results. . .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 20
Jurisdictions can make data-guided changes to local pretrial case processing that would achieve their desired public safety and court appearance results while reserving more jail beds for unmanageably high risk defendants and sentenced offenders. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 21
Colorado judicial officers now have data and law to support changing their bail setting practices to be as effective but much more efficient.. .  .  . 22
This study’s findings are likely more generalizable to jurisdictions that use bond setting practices similar to those used in Colorado. . .  .  .  .  .  .  .  .  . 23
References .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 24
About the Author.  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 25

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 4 of 27
2

ACKNOWLEDGEMENTS
This project was supported by Grant No. 2012-DBBX-K001 awarded to the Pretrial Justice Institute by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Justice.
I thank the multiple pretrial justice experts who peer-reviewed this study. Several researchers, attorneys, and practitioners provided helpful suggestions that improved the study’s quality and usefulness to policy-makers. In particular, I thank my

colleagues at the Pretrial Justice Institute and the following individuals: • Jim Austin, PhD • Kim Ball, JD • Avi Bhati, PhD • Claire Brooker, MA • Thomas Cohen, PhD • Kim English, PhD • Seema Gajwani, JD • KiDeuk Kim, MA • David Levin, PhD • Cynthia Lum, PhD • Tim Schnacke, JD, LLM, MCJ
The Pretrial Justice Institute is a non-profit organization dedicated to advancing safe, fair, and effective pretrial justice practices and policies. For more information, visit www.pretrial.org.

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 5 of 27
3

STUDY SUMMARY
This study was done to provide judicial officers, prosecutors, defense attorneys, sheriffs, jail administrators, county commissioners, pretrial services program directors, and other decision-makers in Colorado as well as in other states empirical evidence that can directly inform their pretrial release and detention policies and practices. Specifically, the simultaneous influence of unsecured bonds (personal recognizance bonds with a monetary amount set) and of secured bonds (surety and cash bonds) on the three most important pretrial outcomes: (1) public safety; (2) court appearance; and (3) jail bed use, were compared. The study, using data from over 1,900 defendants from 10 Colorado counties, found the following:
For defendants who were lower, moderate, or higher risk:
• Unsecured bonds are as effective at achieving public safety as are secured bonds.
• Unsecured bonds are as effective at achieving court appearance as are secured bonds.
• Unsecured bonds free up more jail beds than do secured bonds because: (a) more defendants with unsecured bonds post their bonds; and (b) defendants with unsecured bonds have faster release-from-jail times.
• Higher monetary amounts of secured bonds are associated with more pretrial jail bed use but not increased court appearance rates.

• Unsecured bonds are as effective at “fugitive-return” for defendants who have failed to appear as are secured bonds.
• Many defendants are incarcerated for the pretrial duration of their case and then released to the community upon case disposition.
• Jurisdictions can make data-guided changes to local pretrial case processing that would achieve their desired public safety and court appearance results while reserving more jail beds for unmanageably high risk defendants and sentenced offenders.
• Judicial officers now have data and law to support changing their bail setting practices to maintain their effectiveness while increasing their efficiency.
This study provides empirical evidence about the effectiveness of secured and unsecured bonds. Findings support judicial officers changing their practices to use more unsecured releases, to include unsecured bonds if currently permitted by law, to achieve the same public safety and court appearance rates while using far fewer jail beds. These unsecured bonds could be used in conjunction with an individualized bond setting hearing.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 6 of 27
4

INTRODUCTION
Multiple criminal justice and government decision-makers have a role in the decision to release or detain defendants on pretrial status, either at the policy level or on a case-by case basis. Jail administrators are commonly granted authority by the court to release many defendants on their own recognizance or through the use of a money bond schedule, and those administrators are responsible for housing defendants who are not released. Pretrial services staff members perform risk assessment and information gathering, and provide the results and any release-condition recommendations to the court. Prosecutors and defense attorneys at pretrial hearings often request certain release conditions, including substance testing, electronic monitoring, or changes to a previously set monetary bond amount, based on their perception of the defendant’s pretrial risk to court appearance or public safety. Judges make the final decisions about the types of bond and conditions of bond, including financial and non-financial release conditions. County commissioners or state legislators fund the staff and court and jail facilities that comprise the pretrial system and/or pass laws, but often do so with little or no evaluative feedback about the system’s effectiveness or efficiency.
Whether in the role of making daily, case-by-case pretrial release or detention decisions or policylevel funding decisions, many of these criminal justice decision-makers have had to do so without scientific evidence to help guide their decisions. As a result, they may assume that the current pretrial justice process meets their standards for effectiveness and efficiency, and that the money bail system motivates defendants to return to court or to refrain from criminal activity upon release from jail pending the disposition of their case.

Researchers have recently attempted to determine to what extent, if any, secured monetary forms of pretrial release (e.g., surety or cash bonds) improve court appearance and public safety over non-monetary or unsecured forms of pretrial release (e.g., recognizance bonds). Unfortunately, for the reasons that Cohen and Kyckelhahn (2010) and Bechtel, Clark, Jones, and Levin (2012) have recently explained, researchers have not had access to data that has allowed them to determine simultaneously the effect of different bond types on the three most important pretrial outcomes: (1) public safety; (2) court appearance; and (3) pretrial release and jail bed use. To summarize, previous research has either: (a) had data or methodological limitations that limit the generalizability of the findings to other jurisdictions (see, for example, Morris, 2013; Krahl & New Direction Strategies, 2011); (b) has not sufficiently accounted for possible alternate explanations of the findings (see, for example, Block, 2005); and/or (c) was limited to measuring the effect of various forms of pretrial release on a singular outcome - court appearance, but not on both of the other two important pretrial outcomes - public safety and jail bed use (see, for example, Helland & Tabarrok, 2004; Morris, 2013). Indeed, as Bechtel et al. (2012) explain, the optimal outcome for any pretrial justice system from both an effectiveness (justice system goals) and efficiency (resource management) perspective is to:
(1) Maximize public safety and
(2) Maximize court appearance while
(3) Maximizing release from custody.
Achieving only one or two of these pretrial outcomes without or at the expense of realizing the remain-

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 7 of 27
5

der would be less optimal than achieving all three simultaneously. Indeed, Osborne and Hutchinson (2004) make a compelling case for governments to maximize results while expending the minimal public resources to achieve those results.
The purpose of this study is to overcome some of the limitations of previous research and provide information to pretrial release decision-makers and criminal justice funding decision-makers that will enable them to accomplish a win-win situation: to achieve their desired public safety and court appearance outcomes while most efficiently using their costly jail resources. Because the study uses data from multiple Colorado counties, the results are generalizable throughout Colorado. Factors that may affect the extent to which the results are generalizable outside of Colorado are addressed later in the paper.

Furthermore, due to Colorado statute’s requirement of financial conditions of release, this study is an evaluation of the effect of different types of monetary bonds on public safety, court appearance, and jail bed use. As described in more detail later, some of these monetary bonds in Colorado require the defendant to post the entire monetary amount in cash or some portion thereof through a commercial bail bondsman prior to leaving jail custody, whereas other monetary bonds do not require any money to be posted prior to release.1
After each statistical analysis, a brief explanation of the meaning of the findings is provided. Practical implications of this study for pretrial release decision-making and policy-making are discussed in the final section.

1 This study does not evaluate the effectiveness of commercial bail bonding in achieving court appearance results, nor does it evaluate the effectiveness of pretrial services program supervision in achieving certain court appearance or public safety results. Rather, the focus is on outcomes associated with various forms of monetary bonds set by the court.
UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 8 of 27
6

METHOD
Data for this study came from the dataset used to develop Colorado’s 12-item empirically-derived pretrial risk assessment instrument, the Colorado Pretrial Assessment Tool (CPAT; Pretrial Justice Institute & JFA Institute, 2012). The dataset has hundreds of case processing and outcome variables collected on 1,970 defendants booked into 10 Colorado county jails over a 16-month period.2 Each local jurisdiction collected data on a pre-determined, “systematic ran-

dom sampling” selection schedule to minimize bias in selecting defendants and to enhance the generalizability of the findings. For example, each jurisdiction collected data at an interval of every 2nd, 4th, or 7th defendant who was booked into the jail on new charges. Over 80% of the state’s population resides in the 10 counties that participated: Adams, Arapahoe, Boulder, Denver, Douglas, El Paso, Jefferson, Larimer, Mesa, and Weld.

DEFENDANTS WERE ASSESSED FOR THEIR PRETRIAL RISK, AND NEARLY 70% SCORED IN THE LOWER TWO OF FOUR RISK CATEGORIES.

Based on the CPAT’s scoring procedures, 1,970 defendants in the dataset were assigned a CPAT risk score, ranging from 0 (lower risk) to 82 (higher risk), and to a corresponding risk category, ranging from 1 (lower risk) to 4 (higher risk). Some relevant data were missing for 51 defendants, so they were removed from all analyses. Thus, the final sample

used in the analyses was 1,919 defendants, with 1,309 (68%) of them having been released on pretrial status prior to case disposition. Table 1 shows the percentage of released defendants and the public safety and court appearance success rates associated with each risk category.

Table 1. Average Risk Score, Percent and Number of Defendants, and Public Safety and Court Appearance Rates by Released Defendants’ Risk Category

CPAT PRETRIAL RISK CATEGORY
1 (lower) 2 3
4 (higher) Average/Total

CPAT RISK AVERAGE CPAT SCORE RANGE RISK SCORE

0 to 17

8

18 to 37

28

38 to 50

44

51 to 82

57

0 to 82

30

PERCENT (AND NUMBER) OF DEFENDANTS
20% (265) 49% (642) 23% (295) 8% (107)
100% (1,309)

PUBLIC SAFETY RATEa

COURT APPEARANCE RATEb

92% (243/265) 81% (517/642) 70% (205/295) 59% (63/107) 79% (1,028/1,309)

95% (252/265) 86% (549/642) 78% (231/295) 51% (55/107) 83% (1,087/1,309)

a. On the CPAT and for this study, the public safety rate is defined as the percentage of defendants who did not have a prosecutorial filing in court for any new felony, misdemeanor, traffic, municipal, or petty offense that allegedly occurred during the pretrial release time period. Thus, public safety is defined very broadly as any new filing and is not limited to physical harm against a person or to felony or misdemeanor charges.
b. The court appearance rate is defined as the percentage of defendants who attended all of their court hearings during their pretrial release (i.e., they did not have any notations of failure to appear indicated in the Colorado Judicial Branch’s statewide database).

2 Risk assessment data were collected over the 16-month period from February 2008 to May 2009, and pretrial outcome data were collected after cases closed up until December 2010, thus allowing at least 19 months for all cases to close after defendants were booked into jail because of new charges. Ninety-nine percent (99%) of the cases closed within the minimum 19-month time period.

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 9 of 27
7

Summary of Findings
The CPAT effectively sorts defendants into one of four risk categories, with each category having different rates for the desired outcomes of public safe-

ty and court appearance. Nearly 70% of defendants scored in the lower two risk categories. These risk categories can be used when examining the impact of different forms of money bonds on public safety, court appearance, and jail bed use.

DEFENDANTS RECEIVED EITHER UNSECURED OR SECURED BONDS, AND WERE SEPARATED INTO FOUR GROUPS TO ENABLE ANALYSIS OF BOND-TYPE COMPARISONS.

Table 2 shows the percentage of released defendants who received unsecured or secured (surety or cash) money bonds within each of the four risk

categories. Statutorily, all bonds in Colorado must have a financial condition.3

Table 2: Percent and Number of Released Defendants by Bond Type and Risk Category

PRETRIAL RISK CATEGORY
1 (lower) 2 3
4 (higher) Average

UNSECUREDa 52% (137/265) 32% (208/642) 15% (45/295) 13% (14/107) 31% (404/1,309)

BOND TYPE

SECUREDb 48% (128/265) 68% (434/642) 85% (250/295) 87% (93/107) 69% (905/1,309)

a. Unsecured bonds do not require defendants to post money prior to their pretrial release from jail. While Colorado law uses the term “personal recognizance,” the term “unsecured” is used in this paper to distinguish these bonds from “pure” personal recognizance bonds (or “own recognizance” bonds), as they are called in many other states. Financial conditions are rarely allowed or used with “pure” or “own” recognizance bonds.
b. Secured bonds require defendants to post some amount of money prior to their pretrial release from jail.4

3 Unsecured bonds in Colorado are known in statute as personal recognizance bonds and although they are required to have a financial condition in some monetary amount, they do not require the defendant to post any money with the court prior to pretrial release from jail. If the defendant fails to appear, the court can hold the defendant liable for the full amount of the bond. The court can also require the signature of a co-signor on unsecured bonds prior to the defendant’s release from jail. The co-signor is typically a family member who promises the court that he or she will assist the defendant in appearing in court and who may be held liable for the full monetary amount if the defendant fails to appear. In this study, as noted above, these personal recognizance bonds are called “unsecured” bonds because they have a financial condition for which the defendant or co-signor could be fully liable. The unsecured bond group is for the most part a “defendant-only (with no co-signor) unsecured” group because 344 (85%) of the 404 unsecured bonds did not require a co-signor.
4 Secured bonds in Colorado require money to be posted with the court on the defendant’s behalf prior to pretrial release, and can be in the form of cash, surety, or property. If the defendant fails to appear, the court can hold the defendant or a commercial bail bondsman (for a surety bond) liable for the full amount of the bond. The secured bond group is for the most part a “surety bond” group because 849 (94%) of the 905 secured bond defendants posted a surety bond rather than a cash bond. Surety bonds were the most prevalent form of bond set by the court during the time this study’s data were collected. Property bonds are very rarely used in Colorado, and were not used for any of the defendants in this study.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 10 of 27
8

Summary of Findings
Data show that judicial officers set both unsecured and secured bonds for defendants in each of the four risk groups. All of these bonds carry the possibility that the court could hold the defendant or other party (i.e., co-signor or bail bondsman) legally liable for the bond’s full monetary amount if the defendant fails to appear in court. For surety bonds, defendants are still liable for the full monetary amount, albeit indirectly. If a defendant released on surety bond fails to appear, the court, within the confines of statute, may hold the bail bondsman liable for the full monetary amount. If so, then the bail bondsman may offset this expense by collecting the full monetary amount of the bond pursuant to the contract with the defendant or the defendant’s family member or friend, and turn over the full bond amount to the court.
Placing defendants into one of four risk categories stratifies defendants based on their overall level of risk, thus helping increase the chances that defendants’ bond type, rather than their degree of pretri-

al risk, accounts for the observed results. Specifically, the stratification was done because in the total sample there was a relatively higher proportion of lower risk defendants in the unsecured bond group and a relatively higher proportion of higher risk defendants in the secured bond group. This pattern of data is found across most criminal justice systems nationwide. In addition, the total sample size of defendants in this study and in the four separate risk groups is large enough to detect statistical differences between the two bond-type groups if differences indeed do exist (see Cohen, 1988).5
Moreover, the Colorado jurisdictions that have already implemented the CPAT or that will be implementing it in the near future use the CPAT’s four-category risk scheme to guide daily pretrial release and detention decision-making, so using the CPAT’s risk scheme in this study enables the study to provide decision-makers with findings that directly inform their daily practice.

5 The social science conventional standard of 0.05 for statistical significance testing was used throughout this study. Statistical significance at the 0.05 level means that we can be at least 95% confident that the observed results are not due to chance. To statistically determine that defendants with unsecured bonds were similar in pretrial risk to defendants with secured bonds, stratification, or the separation of the defendants into incremental groups, was done. Separate t-tests (tests used to determine if two groups have different averages on a measure) were performed on the four pretrial risk groups. These analyses showed that the average risk score for defendants with unsecured bonds was not statistically significantly different than the average risk score for defendants with secured bonds in risk categories 1, 3, and 4 (all p > 0.19). For risk category 2, the average score for defendants with unsecured bonds (27) was two points less than the average score for defendants with secured bonds (29) (p < .001). However, given that there was no significant difference for the other three risk categories, including the categories both below (i.e., category 1) and above (i.e., categories 3 and 4) category 2, and because the two-point score difference was no larger than the non-significant score difference in the other three risk categories, the statistically significant difference observed in category 2 is determined not to be practically significant. That is, the difference is likely not meaningful enough to be useful for purposes of informing practice. Additionally, there were no significant differences in the percentages of defendants who were ordered to pretrial supervision among the four risk groups (ranging from 48% to 50% for each of the four groups), indicating that pretrial supervision likely did not interfere with the effects of bond type on the outcome measures.
A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 11 of 27
9

GOALS OF THE STUDY
This study evaluates the extent to which, if at all, one type of money bond (unsecured) is associated with better pretrial outcomes than is the other type of money bond (secured, in the form of cash or surety) while also accounting for jail bed use. Because all bonds in Colorado have a monetary condition, this study was not able to test whether bonds with no financial condition could have achieved the same public safety or court appearance outcomes as did bonds with a financial condition.

For the following analyses, defendants were sorted into two groups depending on the type of money bond they received – unsecured or secured. Defendants’ performance on the three pretrial outcomes most important to pretrial decision-makers - public safety, court appearance, and jail bed use - was examined. Defendants in the two bond-type groups were compared separately within each of the four pretrial risk categories to mitigate the influence of defendants’ risk levels on the observed outcomes.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 12 of 27
10

RESULTS

UNSECURED BONDS ARE AS EFFECTIVE AS SECURED BONDS AT ACHIEVING PUBLIC SAFETY.

Table 3 shows the percentage of defendants who were not charged with a new crime during pretrial release (i.e., the public safety rate) for the unsecured and secured bond groups in each of the four risk categories.
Table 3: Public Safety Outcomes by Bond Type and Risk Category

Chi-square tests6 revealed that there were no statistically significant differences in defendants’ public safety outcomes for the two different types of bond in each of the four risk categories. This finding also holds when only person crimes are analyzed. That is, defendants from both bond-type groups did not significantly differ from one another in their rate of receiving new charges for alleged crimes against a person while on pretrial release (p > 0.65).

PRETRIAL RISK
CATEGORY

PUBLIC SAFETY RATE UNSECURED BOND SECURED BOND

1 (lower)+

93% (128/137)

90% (115/128)

2+

84% (174/208)

79% (343/434)

3+

69% (31/45)

70% (174/250)

4 (higher)+

64% (9/14)*

58% (54/93)

Average**

85% (342/404)

76% (686/905)

+ All statistical comparisons showed no statistically significant differences. All p > 0.16.
* The 64% observed in this cell is based on a small sample size (n=14) and thus should be interpreted with caution. For example, if one more defendant in the unsecured bond group had no new charges, the percentage would increase to 71%. If one more of these defendants had a new charge, the percentage would decrease to 57%.
** The public safety rate for all unsecured bond defendants was not compared to the rate for all secured bond defendants because that analysis would fail to control for defendants’ degree of pretrial risk.

Summary of Findings
Whether released defendants are higher or lower risk or in-between, unsecured bonds offer the same public safety benefit as do secured bonds. This finding is expected because although defendants can have their bond revoked if they receive a new charge while on pretrial release, they legally cannot be ordered to forfeit any amount of money or property under any bond type. Thus, the financial condition of an unsecured or secured bond cannot legally have an impact on defendants’ criminal behavior. This study’s failure to find a public safety benefit for one bond type over another is consistent with previous research (Helland & Tabarrok, 2004; Morris, 2013).

6 The Chi-square statistic tests the degree of agreement between observed data and the data expected under a certain hypothesis. It can be used to compare the differences in frequencies on a measure between two groups.
A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 13 of 27
11

UNSECURED BONDS ARE AS EFFECTIVE AS SECURED BONDS AT ACHIEVING COURT APPEARANCE.

Table 4 shows the percentage of defendants who made all of their court appearances during pretrial release (i.e., the court appearance rate) for the unsecured and secured bond groups in each of the four risk categories.
Table 4: Court Appearance Outcomes by Bond Type and Risk Category

PRETRIAL RISK
CATEGORY
1 (lower)+

COURT APPEARANCE RATE

UNSECURED BOND

SECURED BOND

97% (133/137)

93% (119/128)

Chi-square tests revealed that there were no statistically significant differences in defendants’ court appearance outcomes for the two different types of bond in each of the four risk categories.
Summary of Findings
Whether released defendants are higher or lower risk or in-between, unsecured bonds offer decisionmakers the same likelihood of court appearance as do secured bonds. The lack of benefit from using one financial bond type versus another is not surprising given that both bond types carry the potential for the defendant to lose money for failing to appear.

2+

87% (181/208)

85% (368/434)

3+

80% (36/45)

78% (195/250)

4 (higher)+

43% (6/14)*

53% (49/93)

Average** 88% (356/404)

81% (731/905)

+ All statistical comparisons showed no statistically significant differences. All p > 0.12.
* The 43% observed in this cell is based on a small sample size (n=14) and thus should be interpreted with caution. For example, if one more defendant in the unsecured bond group made all court appearances, the percentage would increase to 50%. If one more of these defendants had a failure to appear, the percentage would decrease to 36%.
** The court appearance rate for all unsecured bond defendants was not compared to the rate for all secured bond defendants because that analysis would fail to control for defendants’ risk.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 14 of 27
12

UNSECURED BONDS FREE UP MORE JAIL BEDS THAN DO SECURED BONDS BECAUSE MORE DEFENDANTS WITH UNSECURED BONDS POST THEIR BONDS.

Table 5 shows the percentage of defendants who were released from jail on pretrial status for the unsecured and secured bond groups in each of the four risk categories.7

Chi-square tests revealed that the release rates for unsecured bond defendants were statistically significantly higher than the release rates for secured bond defendants for all four of the pretrial risk categories.

Table 5: Pretrial Release Rates by Bond Type and Risk Category

The findings shown in Table 5 are illustrated in Figure 1.

PRETRIAL RISK CATEGORY

RELEASE RATE+

UNSECURED BOND

SECURED BOND

1 (lower) + 93% (137/147)

83% (128/155)

2+

95% (208/220) 65% (434/669)

3+

96% (45/47)

54% (250/464)

4 (higher) + 88% (14/16)*

46% (93/201)

Average** 94% (404/430) 61% (905/1,489)

+ All statistical comparisons were statistically significant. All p < 0.006.
* The 88% observed in this cell is based on a small sample size (n=16) and thus should be interpreted with caution. For example, if one more defendant in the unsecured bond group were released, the percentage would increase to 94%. If one more of these defendants were not released, the percentage would decrease to 81%.
** The release rate for all unsecured bond defendants was not compared to the rate for all secured bond defendants because that analysis would fail to control for defendants’ risk.

PERCENT OF DEFENDANTS RELEASED

Figure 1: Pretrial Release Rates by Bond Type and Risk Category

100 75 50

93%

95%

96%

88% 83%

65%
54% 46%

25

0

1

2

3

4

PRETRIAL RISK CATEGORY

UNSECURED SECURED

7 The number of defendants who post their bonds and the time to post those bonds, as opposed to the number of defendants released on pretrial status and their time to release, are better measures for more accurately determining pretrial jail bed use because once a bond is posted, the defendant is no longer utilizing a jail bed for pretrial reasons. The defendant may or may not remain in jail after bond-posting because of other cases or holds. However, for this study, like in most pretrial research, data on dates that bonds were posted were not available, so the next best measures for determining pretrial jail bed use - release on pretrial status and time to pretrial release - were used.
A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 15 of 27
13

Both Table 5 and Figure 1 show that judicial officers used both unsecured and secured bonds with defendants of all risk levels - higher risk, lower risk, and those in between. For defendants at all risk levels, defendants with an unsecured bond were statistically significantly more likely to be released than defendants with a secured bond.8
Summary of Findings
Whether released defendants are higher or lower risk or in-between, unsecured bonds enable more defendants to be released from jail than do secured bonds. Findings show that many defendants of all

risk levels never post their secured bond. This finding is expected because defendants who receive unsecured bonds, or their family or friends, do not have to pay some monetary amount to the court or a commercial bail bondsman prior to the defendants’ release from jail custody. Secured bonds, however, do require pre-release payment. Consequently, secured bonds used more jail beds. This finding is consistent with previous research using data from across the United States that shows that secured bond defendants are much more likely to be detained for their entire pretrial period than are unsecured bond defendants (Cohen & Reaves, 2007).

THE MONETARY AMOUNT OF SECURED BONDS AFFECTED PRETRIAL RELEASE RATES BUT NOT COURT APPEARANCE RATES.

Table 6 shows the percentage of defendants who were released from jail on secured bonds of select monetary amounts.
Table 6: Pretrial Release Rates by Secured Bond Amount

SECURED MONETARY BOND AMOUNT
$500 (12th Percentile)
$5,000 (65th Percentile)
$50,000 (97th Percentile)

PERCENT (AND NUMBER) OF RELEASED DEFENDANTS
64% (52/81)
58% (100/191)
49% (37/76)

Frequency analyses revealed that when the secured bond amount was set relatively very low at $500 (12th percentile of secured bond amounts set by Colorado judicial officers in this study), 64% of defendants were released. When the secured bond amount was set at $5,000 (65th percentile of secured bond amounts), 58% of defendants were released. When the secured bond amount was set at $50,000 (97th percentile of secured bond amounts), 49% of defendants were released. However, correlational analyses revealed that the monetary amount of posted secured bonds was not statistically significantly related to court appearance for any of the four risk groups (p > 0.09).

8 It is possible that the lower release rate for secured bond defendants could have been in part associated with judicial officers having accounted for an unmeasured risk factor in these defendants, and thus the public safety and court appearance rates would have been lower for these defendants had they been released. The mechanism for achieving this increase in pretrial detention would have been judicial officers setting secured bonds in a monetary amount the defendant could not post. Several judicial officers have told this author that this practice is not uncommon in Colorado, but have acknowledged its questionable lawfulness given Colorado’s constitutional and statutory law. Nonetheless, as indicated by this study’s analyses, if more secured bond defendants had been released, the secured bonds would likely not have associated with increased public safety or court appearance.
UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 16 of 27
14

Summary of Findings
As the monetary amount of secured bonds increases, fewer defendants post their bonds. However, regardless of whether defendants are higher or lower risk or in-between, higher bond amounts are not associated with better court appearance outcomes for released defendants. Thus, higher secured bond amounts are

associated with more pretrial incarceration but not more court appearances. The finding of increased incarceration associated with secured bonds is consistent with previous research using data from across the United States: As the monetary amount of secured bonds increases, the probability of release decreases (Cohen & Reaves, 2007).

UNSECURED BONDS ALSO FREE UP MORE JAIL BEDS THAN DO SECURED BONDS BECAUSE DEFENDANTS WITH UNSECURED BONDS HAVE FASTER RELEASE TIMES. Table 7 shows the cumulative percent of defendants cured and secured bond groups by the amount of who were released on pretrial status for the unse- time in jail that elapsed prior to pretrial release.
Table 7: Time to Pretrial Release by Bond Type

DAYS TO PRETRIAL CUMULATIVE PERCENT OF DEFENDANTS RELEASED CUMULATIVE PERCENT OF DEFENDANTS

RELEASE*

ON UNSECURED BONDS

RELEASED ON SECURED BONDS

<1 to 1.9+

80% (325/404)

58% (525/905)

2 to 2.9+

83% (336/404)

68% (611/905)

3 to 3.9+

85% (344/404)

73% (663/905)

4 to 4.9+

86% (348/404)

77% (699/905)

5 to 5.9+

87% (351/404)

80% (721/905)

6 to 6.9+

88% (356/404)

81% (731/905)

7 to 7.9+

88% (356/404)

82% (741/905)

8 to 8.9+

89% (358/404)

84% (758/905)

9 to 9.9+

89% (360/404)

85% (768/905)

10 to 10.9**

89% (360/404)

86% (774/905)

11 to 11.9**

89% (361/404)

86% (781/905)

12 to 12.9**

90% (362/404)

87% (784/905)

+ All statistical comparisons were statistically significant. All p < 0.05. * Defendants across all risk categories were grouped together for this analysis because a defendant’s pretrial risk level can have no legal bearing
on the amount of time a defendant remains in pretrial incarceration after a judicial officer sets the bond. In contrast, the monetary amount of a secured bond, holds from other jurisdictions, or requirements from a defendant’s other cases can affect whether and when the defendant can be released from jail even if the defendant has posted his bond, regardless of bond type and regardless of his pretrial risk level. ** Beginning on the tenth day of pretrial incarceration, the percent of defendants in the two bond type groups who had not been released on pretrial status was no longer statistically significantly different (p > 0.07). Because there was no significant difference after day 9, it was assumed for the purposes of this analysis that after day 9 other factors, such as the defendants’ other cases or possible holds, contributed to defendants’ continued pretrial incarceration to the degree that the bond type was no longer the primary factor contributing to continued pretrial incarceration. In addition, a t-test revealed that the average time to pretrial release for the unsecured bond group (0.7 days) was statistically significantly lower than that for the secured bond group (1.5 days) when the analysis of pretrial incarceration was capped at 9 days for the reasons described above (p < 0.0001). The 9-day cap also makes it likely that the 1.5-day average for the secured bond defendants is an underestimate because 10 or more days may actually elapse before a defendant or his family can meet the court’s cash bond or bondsman’s surety bond requirements; however, this cap was derived from the best data available for this study. Moreover, the use of this average for the secured bond defendants is still sufficient for statistically demonstrating the increased jail use that results from secured bonds, and is sufficient for demonstrating practical significance for policy-making.

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 17 of 27
15

Chi-square tests revealed that statistically significantly more defendants with unsecured bonds were released on pretrial status than were defendants with secured bonds for each of the first nine days after defendants’ bonds were set. A t-test revealed that the average number of days spent in jail on pretrial status was statistically significantly less for defendants with unsecured bonds than the average for defendants with secured bonds up to the first nine days after defendants’ bonds were set.
The findings shown in Table 7 are illustrated in Figure 2.
Figure 2: Time to Pretrial Release by Bond Type

Figure 2 depicts that released defendants with unsecured bonds spent fewer days incarcerated on pretrial status than did defendants with secured bonds. Moreover, Figure 2 depicts:
• Five days of jail incarceration were required for defendants with cash or surety bonds to achieve the same release threshold of 80% that defendants with unsecured bonds experienced by day one.
• Ten days of jail incarceration were required for defendants with cash or surety bonds to achieve the same overall release threshold as defendants with unsecured bonds because there were statistically significant differences for the first nine days.

PERCENT OF DEFENDANTS RELEASED

100

95

90

V

85

80 80%

80%

75

70

65

60

55

50 1 2 3 4 5 6 7 8 9 10 11 12

DAYS TO PRETRIAL RELEASE

UNSECURED SECURED

Note. The V symbol denotes that after day 9, the difference in the percent of released defendants between the two groups was no longer statistically significant. The time at which the 80% threshold was achieved is indicated for both groups.

Summary of Findings
After judicial officers set defendants’ bonds, unsecured bonds enable defendants to be released from jail more quickly than do secured bonds. This finding is expected because nearly all defendants who receive unsecured bonds can be released from custody immediately upon signing their bond, whereas defendants with secured bonds must wait in custody until they or a family member or friend negotiates a payment contract with a commercial bail bondsman or their family member or friend posts the full monetary amount of a cash bond at the jail. This finding indicates that the process of posting a secured bond takes much longer than the process of posting a unsecured bond for released defendants. Furthermore, this finding is consistent with previous research using data from across the United States that shows released defendants with secured bonds remained in jail longer than did released defendants with bonds that did not require a prerelease payment (Cohen & Reaves, 2007).

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 18 of 27
16

UNSECURED BONDS ARE AS EFFECTIVE AS SECURED BONDS AT “FUGITIVE-RETURN” FOR DEFENDANTS WHO HAVE FAILED TO APPEAR.

Table 8 shows the percent of defendants whose case was still open up to 19 months after they were released from jail and who were at-large because of a failure to appear warrant, among all released defendants who had failed to appear (i.e., the at-large rate), for the unsecured and secured bond groups.
Table 8: At-Large Rate by Bond Type

AT-LARGE RATE+*

UNSECURED BOND

SECURED BOND

10% (5/48)

9% (15/174)

+ The comparison was not statistically significantly different (p > 0.69). Non-significance was also found when data from just the surety bond defendants were compared to the unsecured bond defendants - that is, when the cash-only bond defendants were removed from the secured bond group (p > 0.48).
* There were too few at-large cases in each of the four risk categories to permit analyses within each of the risk categories.

Chi-square tests revealed that there were no statistically significant differences in defendants’ at-large rates for the two different types of bond, as well as for surety-bond-only defendants.

Summary of Findings
When released defendants fail to appear, unsecured bonds offer the same probability of fugitive-return as do secured (including surety-only) bonds. Because the commercial bail bond industry often claims that it locates and captures defendants who have failed to appear or who are fugitives on the run (see Professional Bail Agents of the United States, 2013; Tabarrok, 2011), this topic is discussed in detail.

Nationally, the fugitive-return function has received minimal attention in the empirical research literature, and no empirical research prior to the current

study has been done in Colorado. This study failed to find support for the commercial bail bond industry’s fugitive-return claim for defendants released on surety bonds because there was no difference in the percent of defendants who were released on surety bonds, who failed to appear, and who still had an open case, when compared to the percent of defendants who were released on unsecured bonds, who failed to appear, and who still had an open case. All defendants who had an open case at the time this study’s data collection was completed were at-large on a failure to appear warrant and not in jail custody. If commercial bail bondsmen or hired bounty hunters return defendants at a greater rate than the rate for which defendants on unsecured bonds return to custody or court, then the percent of at-large surety bond defendants would be statistically significantly less than it is for unsecured bond defendants. That difference was not found in this study.
This study’s failure to find a fugitive-return benefit for one bond type over another is consistent with previous research designed to measure directly the fugitive-return function allegedly associated with surety bonds. Jones, Brooker, and Schnacke (2009) found no empirical support for Colorado commercial bail bondsmen’s claim that they locate or apprehend surety bond defendants who had failed to appear, as indicated by local jail booking data, the court’s bondsman-contact tracking logs, and by law enforcement officials’ report (p. 83).
Furthermore, in 2012 a committee that consisted of several justice system stakeholders and Colorado bail agents’ representatives studied Colorado pretrial case processing and decision-making for a year. A portion of that review included discussion about fugitive-return evidence in Colorado.

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 19 of 27
17

Committee members acknowledged that there are no data to support the bondsmen’s fugitive-return claim, and that the extent to which bondsmen re-

turn defendants to jail, court, or to law enforcement officers in Colorado remains empirically undemonstrated.9

MANY DEFENDANTS ARE INCARCERATED FOR THE PRETRIAL DURATION OF THEIR CASE AND THEN RELEASED TO THE COMMUNITY UPON CASE DISPOSITION.

Because some judicial officers, sheriffs, and defense attorneys have expressed concern or puzzlement to this author about their observation that apparently many defendants spend the pretrial duration of their case in custody, sometimes for several weeks or months, and then are released to the community upon conviction or sentencing, data on case dispositions were analyzed to determine the extent to which this phenomenon occurs in Colorado.
Table 9 shows the collective percentage of neverreleased, secured-bond defendants by type of case disposition from all 10 Colorado jurisdictions.

Table 9: Never-Released Defendants by Case Disposition

CASE DISPOSITION

PERCENT (AND NUMBER) OF DEFENDANTS OR OFFENDERS*

Department of Corrections

14% (79)

Jail, Work Release, or Time Served in the Local Jail

34% (194)

Community-Based Option (Diversion, Probation,
Community Corrections, Home Detention)

37% (210)

Dismissed or Not Filed

13% (76)

Still Open or Had Some Other Sentence

2% (9)

Total

100% (568)

* Each percentage changes 1% or less when unreleased defendants with recognizance bonds were included in the analysis.

9 See the Colorado Commission on Criminal and Juvenile Justice’s Bail Subcommittee’s March 2012 Meeting Minutes at http://www. colorado.gov/cs/Satellite/CDPS-CCJJ/CBON/1251617151523.
UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 20 of 27
18

Summary of Findings
These findings have implications for pretrial jail bed use because 50% (37% + 13%) of defendants return to the community upon conviction or case closure.10 This percentage increases to 84% (50% + 34%) when defendants who return to the community after completing a jail sentence (including those who received sentences for time served while in pretrial custody) are included. This pattern of findings sug-

gests that when judges and other decision-makers consider the likelihood of a defendant’s conviction and the most likely type of sentence, they can further reduce pretrial jail bed use by using more unsecured bonds in lieu of secured bonds for defendants who will likely return to the community upon case disposition (i.e., for those defendants who are not likely to be transported to the Department of Corrections to start a sentence).

10 With the exception of some defendants for whom another case results in continued detention.
A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 21 of 27
19

DISCUSSION AND IMPLICATIONS FOR POLICY MAKING

The findings from this study provide strong evidence that the type of monetary bond posted does not affect public safety or defendants’ court appearance, but does have a substantial effect on jail bed use. Specifically, when posted, unsecured bonds (personal recognizance bonds with a financial condition) achieve the same public safety and court appearance results as do secured (cash and surety) bonds. This finding holds for defendants who are lower, moderate, or higher risk for pretrial misconduct. However, unsecured bonds achieve these public safety and court appearance outcomes while using substantially (and statistically significantly)

fewer jail resources. That is, more unsecured bond defendants are released than are secured bond defendants, and unsecured bond defendants have faster release times than do secured bond defendants. The amount of the secured monetary bond was associated with increased pretrial jail use but not increased court appearance. Finally, the type of monetary bond did not affect the fugitive-return rate as measured by the percent of cases with a failure to appear warrant remaining open up to oneand-a-half years later.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 22 of 27
20

THE TYPE OF BOND SET BY THE COURT HAS A DIRECT IMPACT ON THE AMOUNT OF JAIL BEDS CONSUMED, BUT IT DOES NOT IMPACT PUBLIC SAFETY AND COURT APPEARANCE RESULTS.

A three-jurisdiction example demonstrates this study’s implications for jail bed use. If there were three jurisdictions that use different rates of unsecured and secured bonds, they each would use

their local jail resource very differently to achieve the same public safety and court appearance outcomes.11 Table 10 demonstrates this scenario.

Table 10: Differential Jail Bed Use Resulting from Different Bond Setting Practices in Three Jurisdictions

JURISDICTION

PERCENT OF UNSECURED
BONDS

PERCENT OF
SECURED BONDS

PRETRIAL BEDS
NEEDED FOR UNSECURED
BONDS*

PRETRIAL BEDS
NEEDED FOR
SECURED BONDS*

TOTAL PRETRIAL
BEDS NEEDED*

PUBLIC SAFETY RATE**

COURT APPEARANCE
RATE**

Status Quoa

31%

69%

34

430

464

79%

83%

Moderate Unsecuredb

61%

39%

67

243

310

79%

83%

High Unsecuredc

91%

9%

100

56

156

79%

83%

c. The “Status Quo” jurisdiction’s use of unsecured bonds was selected to be the same as the average unsecured bond use in the 10 jurisdictions that contributed data to this study (see Table 2).
d. The “Moderate Unsecured” jurisdiction’s percent of unsecured bonds was selected to be 30 percentage points higher than that of the Status Quo jurisdiction and centered between the other two jurisdictions. Its bond type percentages are nearly the inverse of the Status Quo jurisdiction.
e. The “High Unsecured” jurisdiction’s percent of unsecured bonds was selected to be 30 percentage points higher than that of the Moderate Unsecured jurisdiction. It also uses nearly the same percent of unsecured bonds as there are defendants in the three lowest Colorado Pretrial Assessment Tool (CPAT) risk categories (i.e., categories 1, 2, and 3). This would approximately be the case, for example, if a jurisdiction were to use unsecured bonds for defendants whose pretrial risk score is in CPAT risk categories 1 through 3 and use secured bonds for defendants whose pretrial risk score is in CPAT risk category 4.
* Per 10,000 defendants booked into jail on new charges. ** The public safety rate of 79% and the court appearance rate of 83% were averages for all 1,309 released defendants, regardless of their bond
type or risk level.

As seen in Table 10, secured bonds require more jail beds than do unsecured bonds when a relatively high number (69% or 39%) of secured bonds are used. In particular, the Status Quo jurisdiction would need 464 jail beds allocated for pretrial de-

tention for every 10,000 defendants booked into jail on new charges, whereas the Moderate Unsecured jurisdiction would need 310 jail beds allocated for pretrial detention for this same pool of defendants.

11 The average length of time that defendants spent in detention for pretrial reasons (calculated for this study as 0.7 days for unsecured bond defendants and 1.5 days for secured bond defendants) and the average length of time of 58 days for all in-custody cases to close were used to calculate the number of beds that defendants would use. See Cunniff (2002) for the formulas used (p. 30).

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 23 of 27
21

The Status Quo jurisdiction’s higher amount of jail bed use is caused by fewer secured bond defendants being released and when they are released, taking more time to do so when compared to unsecured bond defendants (refer back to Tables 5 and 7).
In contrast, the High Unsecured (i.e., high use of personal recognizance bonds) jurisdiction would need only 156 jail beds allocated for pretrial detention for every 10,000 defendants booked into jail on new charges. In this jurisdiction, more jail beds are actually required for unsecured bond defendants than for secured bond defendants because of the very high volume of unsecured bond defendants. However, this jurisdiction uses substantially fewer pretrial jail beds overall than do the other two

jurisdictions because fewer defendants remain incarcerated, and when defendants are released, they are released much more quickly.
In summary, the High Unsecured jurisdiction achieves the same court appearance and public safety outcomes as does the Status Quo jurisdiction, but does so while reserving 197% more jail beds for other purposes (e.g., incarcerating sentenced inmates, reducing jail expenses by closing one or more housing sections). Similarly, the Moderate Unsecured jurisdiction achieves the same court appearance and public safety outcomes as does the High Unsecured jurisdiction, but consumes twice as many jail beds while doing so.

JURISDICTIONS CAN MAKE DATA-GUIDED CHANGES TO LOCAL PRETRIAL CASE PROCESSING THAT WOULD ACHIEVE THEIR DESIRED PUBLIC SAFETY AND COURT APPEARANCE RESULTS WHILE RESERVING MORE JAIL BEDS FOR UNMANAGEABLY HIGH RISK DEFENDANTS AND SENTENCED OFFENDERS.

Criminal justice policy-makers, such as judges, sheriffs and jail administrators, district attorneys, defense attorneys, and county commissioners or city council members, in each local jurisdiction (e.g., county or city-county) could benefit from convening to discuss and analyze their current practices and to identify opportunities for improving their pretrial practices. Colorado jurisdictions use secured money bonds for over two-thirds (69%) of their cases. However, this study provides compelling evidence that the same level of public safety and court appearance that these jurisdictions experience today can be achieved at considerably lower costs to taxpayers who fund local jails, and this finding occurs for defendants of all risk levels.12 Moreover, this study’s findings provide empirical support for a Colorado jurisdiction changing its

pretrial practices to be consistent with Colorado’s new bail statute enacted in May of 2013.13
It will be important for local decision-makers to collaborate to hold each other accountable to maximize their desired public safety, court appearance, and jail bed use outcomes. Judges, sheriffs, district attorneys, and other justice system decision-makers desire to achieve the highest levels of public safety and court appearance as possible, and they rely on county commissioners and legislators to provide them with the resources (e.g., jail and court facilities, staff, programs) to make those outcomes possible. Similarly, county commissioners or legislators fund the jail and program resources, and they rely on judges and other system decision-makers to engage in effective practices that most efficiently

12 T he higher financial cost to each local jail created by the use of secured bonds can be demonstrated whether short-run marginal costs and/or step-fixed costs are used in cost calculations (see Henrichson & Galgano, 2013).
13 See House Bill 13-1236 at http://www.leg.state.co.us/.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 24 of 27
22

use those resources. This study indicates that Colorado jurisdictions have the opportunity to be much more effective and efficient with the pretrial use of local jails by using an empirically-based risk assessment instrument such as the Colorado Pretrial Assessment Tool and by maximally using personal recognizance bonds with a financial condition. In

this decision-making scenario, defendants’ risk for pretrial misconduct would be known prior to defendants’ release from custody, and all released defendants would have a personal recognizance bond with a financial condition that the court could enforce if the defendant were to fail to appear.

COLORADO JUDICIAL OFFICERS NOW HAVE DATA AND LAW TO SUPPORT CHANGING THEIR BAIL SETTING PRACTICES TO BE AS EFFECTIVE BUT MUCH MORE EFFICIENT.

This study does not address the question of whether or when judicial officers should use monetary bonds or not use them (i.e., bonds with a financial condition or bonds with no financial condition). That is a research question beyond the scope of this study and is not currently relevant in Colorado, given that statute requires all bonds to have a financial condition. Rather, this study’s results, combined with the new bail statute enacted in May of 2013, provide Colorado judicial officers with both empirical and legal justification for changing their bail setting practices to achieve their desired levels of public safety and court appearance while incarcerating only higher risk individuals and no longer incarcerating lower risk defendants who cannot pay their cash or surety bonds. The pretrial release mechanism created in Colorado’s new bail statute for achieving all of these outcomes simultaneously are personal recognizance bonds with an unsecured financial condition found in Colorado Revised Statutes Sections 16-4-104(1) (a) and (b). These bonds are the only ones in Colorado that simultaneously (1) allow judicial officers to set an amount of money that they believe may give defendants sufficient incentive to return to court, and (2) do not prevent those defendants’ release because the amount is too high for them or their family or friends to post.14

The new statute and this study’s findings also converge to imply two features of a money bond schedule if a jurisdiction’s decision-makers choose to have one: (1) The schedule should have the defendant’s risk integrated into the formula that is to guide or determine a specific monetary amount of bond for each individual defendant; and (2) the scheduled monetary amounts should only be used for financial conditions associated with recognizance bonds and not for cash or surety bonds. If these two features are not incorporated and integrated into money bail bond schedules and pretrial decision-making, then the jurisdiction is likely to achieve its desired public safety and court appearance outcomes while failing to minimize pretrial detention because of the number of lower risk defendants who will be incarcerated for their lack of pre-release financial resources.
This study shows that defendants who are released from jail on personal recognizance bonds with a financial condition return to court and avoid new charges at the same rate as do defendants who bond out on cash or surety bonds, and they are as unlikely to remain at-large on fugitive status. Nonetheless, as one pretrial legal scholar has proposed (T. Schnacke, personal communication, August 1,

14 The Colorado Commission on Criminal and Juvenile Justice’s Bail Subcommittee discussed the possibility that defendants are more likely to appear in court when they have “skin in the game” because of a financial condition of their bond (see http://www.colorado. gov/cs/Satellite/CDPS-CCJJ/CBON/1251617151523). Several justice system decision-makers in other states have suggested the same to this author. This study could not test this hypothesis; however, this study does provide empirical support that if defendants are more likely to appear in court because of a financial condition, this “motivation” is achieved just as effectively with a personal recognizance bond with a financial condition than it is with a cash or surety bond, but without the accompanying unnecessary pretrial jail bed use.

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 25 of 27
23

2013), even if the fugitive-return rate were some degree higher for surety bond defendants than for unsecured bond defendants, criminal justice decision-makers in each jurisdiction would need to decide if this gain offsets other costs. Specifically, if commercial bail bondsmen were to return defendants to custody sooner than law enforcement does, these cases could be closed more quickly. However, this benefit needs to be weighed against the high financial cost the local justice system incurs from the pretrial jail bed use that results from the large percent of surety bond defendants who are never released from jail or who take much longer to be released when they are released.

Finally, the pretrial decision-making supported by this study and the new statute has a precedent in Colorado. In early 2010 during Jefferson County’s Bail Impact Study, which was a pilot project in which judges set more recognizance bonds with the support from the local criminal justice coordinating committee, a First Judicial District Court Judge set personal recognizance bonds with a financial condition for 75% of defendants who appeared before him at initial advisement. This Bail Impact Study, among initiatives in other jurisdictions and an earlier version of the research done for this paper, ultimately led to the introduction and passage of House Bill 13-1236, which rewrote Colorado’s bail statute to encourage more recognizance releases and to reduce unnecessary pretrial detention while still emphasizing public safety and court appearance.15

THIS STUDY’S FINDINGS ARE LIKELY MORE GENERALIZABLE TO JURISDICTIONS THAT USE BOND SETTING PRACTICES SIMILAR TO THOSE USED IN COLORADO.

Colorado jurisdictions’ pretrial case processes are very similar to one another and are typical of the processes used nationwide. When defendants are booked into jail, typically within a day or two most of them have the opportunity to leave custody after posting their bond via a money bail bond schedule or after first appearing before a judicial officer. Colorado judicial officers use unsecured, cash, and surety bonds in varying proportions, but not in a “sequential’ manner as is done in some jurisdictions. For example, Dallas County’s (Texas) use of non-financial release occurs almost exclusively in instances when defendants cannot first post their secured bond (L. Gamble, personal communication, March 4, 2013). In Colorado, judicial officers order unsecured bonds regardless of defendants’ initial ability to post a secured bond. This nonsequential use, combined with this study’s statistical

controls for defendants’ pretrial risk level, allow for methodologically sound bond-type comparisons on public safety, court appearance, and jail bed use.
Finally, research methods similar to those used in this study should be replicated in jurisdictions outside of Colorado to determine to what extent similar findings emerge. Criminal justice officials in many jurisdictions outside of Colorado also heavily rely on secured money bonds without any data showing the effect, pro or con, of these secured bonds on all three pretrial outcomes simultaneously. These decisionmakers could likely improve the efficiency of their systems without detriment to their public safety and court appearance outcomes by using more recognizance bonds with a financial condition in lieu of cash or surety bonds.16

15 See C.R.S. 16-4-103(4) (c) (2013), “The Court shall . . . consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration.”
16 As previously noted, the effect on court appearance of recognizance bonds that have no financial condition compared to unsecured or secured bonds could not be examined in this study. If studies show that recognizance bonds with no financial condition outperform unsecured or secured bonds, then they would provide an effective release option for jurisdictions that seek, voluntarily or through statute or court rule, to impose the least restrictive conditions that assure public safety and/or court appearance.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 26 of 27
24

REFERENCES
Bechtel, K., Clark, J., Jones, M. R., & Levin, D. J. (2012). Dispelling the Myths: What Policy Makers Need to Know about Pretrial Research. Washington, DC: Pretrial Justice Institute.
Block, M. K. (2005). The effectiveness and cost of secured and unsecured pretrial release in California’s large urban counties: 1990-2000. Unpublished manuscript, University of Arizona.
Cohen, J. (1988). Statistical Power Analysis for the Behavioral Sciences (2nd ed.). Hillsdale, NJ: Erlbaum.
Cohen, T. H., & Kyckelhahn, T. (2010). Data Advisory: State Court Processing Statistics Data Limitations. Washington, DC: U.S. Department of Justice.
Cohen, T. H. & Reaves, B. A. (2007). Pretrial Release of Felony Defendants in State Courts. Washington, DC: U.S. Department of Justice.
Cunniff, M. A. (2002). Jail Crowding: Understanding Jail Population Dynamics. Washington, DC: U.S. Department of Justice.
Helland, E., & Tabarrok, A. (2004). The fugitive: Evidence on public versus private law enforcement from bail jumping. Journal of Law and Economics, 47, 93-122.
Henrichson, C., & Galgano, S. (2013). A Guide to Calculating Justice-System Marginal Costs. New York: Vera Institute of Justice.
Krahl, D. E., & New Direction Strategies. (2011). An analysis of the financial impact of surety bonding on aggregate and average detention costs and cost

savings in the state of Florida for 2010 by a single Florida insurance company: Continuities from earlier research and extensions in the development and utilization of statistical models to determine the utility and effectiveness of surety bonding. Unpublished manuscript, University of Tampa.
Morris, R. G. (2013). Pretrial Release Mechanisms in Dallas County, Texas: Differences in Failure to Appear (FTA), Recidivism/Pretrial Misconduct, and Associated Costs of FTA. Richardson, TX: University of Texas at Dallas.
Osborne, D., & Hutchinson, P. (2004). The Price of Government: Getting the Results We Need in an Age of Permanent Fiscal Crisis. New York: Basic Books.
Pretrial Justice Institute & JFA Institute. (2012). The Colorado Pretrial Assessment Tool (CPAT): A Joint Partnership among Ten Colorado Counties, the Pretrial Justice Institute, and the JFA Institute. Washington, DC: Pretrial Justice Institute.
Professional Bail Agents of the United States. (2013). How to become a recovery agent. Retrieved May, 2013, from http://www.pbus.com/displaycommon.cfm?an=3
Jones, M. R., Brooker, C. M. B., & Schnacke, T. R. (2009). A Proposal to Improve the Administration of Bail and the Pretrial Process in Colorado’s First Judicial District. Golden, CO: Jefferson County Criminal Justice Planning Unit.
Tabarrok, A. (2011). The bounty hunter’s pursuit of justice. Wilson Quarterly. Retrieved May, 2013, from http://www.wilsonquarterly.com/article. cfm?AID=1775

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE

Case 5:19-cv-01145-JD Document 1-2 Filed 12/10/19 Page 27 of 27
25

ABOUT THE AUTHOR
Dr. Michael R. Jones has been a senior project associate at the non-profit Pretrial Justice Institute (PJI) since 2010. At PJI, he has assisted dozens of states and local jurisdictions in understanding and implementing more legal and empirically-based pretrial policies and practices. In Colorado, he led the project to develop Colorado’s first empiricallybased pretrial risk assessment tool, coordinated pretrial services programs’ statutorily mandated performance measurement, and assisted justice system decision-makers in their efforts to defeat regressive legislation and pass progressive legislation. He currently provides strategic planning, training,

technical assistance, and consulting to a variety of justice system stakeholders in Colorado and nationwide. Prior to PJI, he worked for nine years as a criminal justice planner and manager in Jefferson County, Colorado, where he was lead staff for the local criminal justice coordinating committee. He has also worked as a technical resource provider for the National Institute of Corrections since 2004, providing justice system assessments and assisting local jurisdictions in developing or improving their capacity for systemic collaboration and data-guided policy-making. Mike has a Ph.D. in Clinical Psychology from the University of Missouri-Columbia.

UNSECURED BONDS: THE AS EFFECTIVE AND MOST EFFICIENT PRETRIAL RELEASE OPTION

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 1 of 33
Exhibit C

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 2 of 33
The Hidden Costs of Pretrial Detention
Christopher T. Lowenkamp, Ph.D. Marie VanNostrand, Ph.D. Alexander Holsinger, Ph.D.
November, 2013

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 3 of 33

TABLE OF CONTENTS
Executive Summary.......................................................................................................................................................................................3
Introduction......................................................................................................................................................................................................5 Study Description.............................................................................................................................................................................................................5 Research Objectives and Questions.......................................................................................................................................................................5 Dataset...................................................................................................................................................................................................................................6 Methodology.......................................................................................................................................................................................................................6
Sample Description........................................................................................................................................................................................7 Demographics.....................................................................................................................................................................................................................7 Offense Information........................................................................................................................................................................................................7 Risk Level..............................................................................................................................................................................................................................7 Days in Pretrial Detention............................................................................................................................................................................................8 Outcomes..............................................................................................................................................................................................................................8
Research Objective One: Investigate the relationship between the length of pretrial detention and pretrial outcome.................................................10
Research Questions.........................................................................................................................................................................................................10 Primary Findings ...............................................................................................................................................................................................................10 Methods and Analysis Results...................................................................................................................................................................................11
Research Question 1a: Is the length of pretrial detention related to the likelihood of pretrial FTA once other relevant statistical controls are considered?...................................................................................................................................................................................11 Research Question 1b: Do the observed effects (of days spent in detention when predicting FTA) differ for sub-populations of defendants? ......................................................................................................................................................................................................13 Research Question 1c: Is the length of pretrial detention related to the likelihood of pretrial NCA once other relevant statistical controls are considered?..................................................................................................................................................................................15 Research Question 1d: Do the observed effects (of days spent in detention when predicting NCA) differ for sub-populations of defendants?...................................................................................................................................................................17
Research Objective Two: Investigate the relationship between pretrial detention, as well as the length of pretrial detention, and new criminal activity post-disposition (NCA-PD)...........................................................................................................................................19
Research Questions.........................................................................................................................................................................................................19 Primary Findings ...............................................................................................................................................................................................................19
Research Question 2a: Is pretrial detention related to NCA-PD?.................................................................................................................................................20 Research Question 2b: Do the observed effects of pretrial detention differ for sub-populations of defendants (likelihood of 12-month NCA-PD and 24-month NCA-PD)?..............................................................................21 Research Question 2c: Is the length of pretrial detention related to NCA-PD?.....................................................................................................................22 Research Question 2d: Do the observed effects of the length of pretrial detention differ for sub-populations of defendants (likelihood of 12-month NCA-PD and 24-month NCA-PD)?..............................................................................24
Appendix...........................................................................................................................................................................................................29 Appendix A: Table A-1......................................................................................................................................................................................................29 Appendix B: References................................................................................................................................................................................................32

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 4 of 33

EXECUTIVE SUMMARY

In the criminal justice system, the time between arrest and case disposition is known as the pretrial stage. Each time a person is arrested and accused of a crime, a decision must be made as to whether the accused person, known as the defendant, will be detained in jail awaiting trial or will be released back into the community. But pretrial detention is not simply an either-or proposition; many defendants are held for a number of days before being released at some point before their trial.
The release-and-detention decision takes into account a number of different concerns, including protecting the community, the need for defendants to appear in court, and upholding the legal and constitutional rights afforded to accused persons awaiting trial. It carries enormous consequences not only for the defendant but also for the safety of the community.
Little is known about the impact of pretrial detention on pretrial outcomes and post-disposition recidivism. Some researchers and legal professionals believe there is a relationship between the number of days spent in pretrial detention and the defendant’s community stability (e.g., employment, finances, residence, family), especially for lowerrisk defendants. Specifically, the defendant’s place in the community becomes more destabilized as the number of days of pretrial detention increases. This destabilization is believed to lead to an increase in risk for both failure to appear and new criminal activity. While this purported relationship makes intuitive sense, there has been no empirical evidence in existence to support or refute this idea. Beyond the relationship between length of pretrial detention and pretrial outcomes, there is an additional underdeveloped area of research — the impact of pretrial detention on post-disposition recidivism.
Using data from the Commonwealth of Kentucky, this research investigates the impact of pretrial detention on 1) pretrial outcomes (failure to appear and arrest for new criminal activity); and 2) postdisposition recidivism.

REPORT HIGHLIGHTS:
Detaining low- and moderate-risk defendants, even just for a few days, is strongly correlated with higher rates of new criminal activity both during the pretrial period and years after case disposition; as length of pretrial detention increases up to 30 days, recidivism rates for lowand moderate-risk defendants also increases significantly.
When held 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours.
When held 8-14 days, low-risk defendants are 51 percent more likely to commit another crime within two years after completion of their cases than equivalent defendants held no more than 24 hours.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 3

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 5 of 33
Data on 153,407 defendants booked into a jail in Kentucky between July 1, 2009, and June 30, 2010, were used to answer two broad research objectives: 1) Investigate the relationship between the length of pretrial detention and pretrial outcome; and 2) Investigate the relationship between pretrial detention, as well as the length of pretrial detention, and new criminal activity post-disposition. Depending on the research objective and its associated research questions, subsamples of cases were drawn from this larger dataset of 153,407 defendants.
Multivariate models were generated that controlled for relevant factors including risk level, supervision status, offense type, offense level, time at risk in the community, demographics, and other factors. Three critical findings related to the impact of pretrial detention were revealed.
1. Length of Pretrial Detention and Failure to Appear (FTA) — Longer pretrial detentions, up to a certain point, are associated with the likelihood of FTA pending trial. This finding seems to be more consistent for defendants deemed to be low risk.
2. Length of Pretrial Detention and New Criminal Activity (NCA) — Longer pretrial detentions are associated with the likelihood of NCA pending trial. This is particularly true for defendants deemed to be low risk. The longer low-risk defendants are detained, the more likely they are to have new criminal activity pending trial. Defendants detained 2 to 3 days are 1.39 times more likely to have NCA than defendants released within a day; those detained 31 or more days are 1.74 times more likely.
3. Pretrial Detention and Post-Disposition Recidivism — Being detained pretrial for two days or more is related to the likelihood of post-disposition recidivism. Generally, as the length of time in pretrial detention increases, so does the likelihood of recidivism at both the 12-month and 24-month points.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 4

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 6 of 33

INTRODUCTION
Study Description
The current study investigates the correlation of pretrial detention with 1) pretrial outcomes (failure to appear, hereafter FTA, and arrest for new criminal activity, hereafter NCA); and 2) post-disposition recidivism (new criminal activity post-disposition, hereafter NCA-PD).
Research Objectives and Questions
The study includes two (2) research objectives and 8 related research questions, as shown below.
1. Investigate the relationship between the length of pretrial detention and pretrial outcome.
a. Is the length of pretrial detention related to the likelihood of pretrial FTA once other relevant statistical controls are considered?
b. Do the observed effects (of days spent in detention when predicting FTA) differ for sub-populations of defendants?
c. Is the length of pretrial detention related to the likelihood of pretrial NCA once other relevant statistical controls are considered?
d. Do the observed effects (of days spent in detention when predicting NCA) differ for sub-populations of defendants?
2. Investigate the relationship between pretrial detention, as well as the length of pretrial detention, and new criminal activity post-disposition (NCA-PD).
a. Is pretrial detention related to NCA-PD? b. Do the observed effects of pretrial detention differ for sub-populations of defendants (likelihood of
12-month NCA-PD and 24-month NCA-PD)? c. Is the length of pretrial detention related to NCA-PD? d. Do the observed effects of the length of pretrial detention differ for sub-populations of defendants
(likelihood of 12-month NCA-PD and 24-month NCA-PD)?

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 5

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 7 of 33
Dataset
The sample used for the current study includes all defendants arrested and booked into a Kentucky jail between July 1, 2009, and June 30, 2010. This led to a working sample size of 153,407. The dataset does not represent unique individuals, but rather includes all bookings within the study period. (Some individuals were booked multiple times within the timeframe; calculating a unique count of individuals could not be performed reliably, as unique identifiers were missing in almost 10% of the cases.) All cases in the sample reached final case disposition. These data served as the sample of defendants used to respond to the research objectives. Depending on the research objective and its associated research questions, subsamples of cases were drawn from this larger dataset of 153,407 defendants. All bookings from July 1, 2010, to June 30, 2012, were added to the dataset to develop post-disposition measures of arrest for new criminal activity.
The measures in this study included the following:
• defendant demographics; • defendant risk; • offense characteristics including offense level (e.g., felony or misdemeanor) as well as felony offense class (A,
B, C, D) for some analyses; • details of pretrial status (released or detained, and length of detention); • failure to appear and arrest for new criminal activity during pretrial release; • time at risk in the community for both pretrial and post-disposition periods; and • new criminal activity post-disposition (NCA-PD).
Methodology
Bivariate and multivariate models were used to complete the analysis. Most commonly used was logistic regression modeling, a procedure designed for what is generally referred to as a dichotomous or binary outcome variable. (Recidivism, for example, is typically considered either a “yes” or “no” outcome, regardless of measurement procedure.) Logistic regression, like many types of regression, allows for several variables to be entered into a model while statistically controlling for the effects of other variables. Generally, when a multivariate model is conducted, the variable of interest is highlighted (e.g., the effect of pretrial detention, or the length of pretrial detention) while controlling for the effects of other variables (such as age, race, gender, risk level, and the like).
Also incorporated in the analysis are Poisson regression models, which are typically used when the outcome variable is a discrete count (e.g., the number of months someone is sentenced to prison or jail, or the number of times someone is arrested). Counts tend to be distributed in such a way that the assumptions of linear regression are violated; therefore, an adjustment in modeling is required. Poisson regression, like logistic regression and other types of regression, allows for several variables to be entered into a model while statistically controlling for the effects of other variables. This allows for the examination of the effect of one or more variables of interest (e.g., pretrial detention and/or the length of pretrial detention).
The county of case origin, although not shown in any of the multivariate tables published here, was included in every multivariate model constructed and estimated. Robust standard error estimates were developed with clustering at the county level and were used in all multivariate analyses.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 6

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 8 of 33

SAMPLE DESCRIPTION
The dataset described above, including 153,407 records representing all defendants arrested and booked into a Kentucky jail between July 1, 2009, and June 30, 2010, was used for the analysis.
There are 120 counties and 84 local jails in Kentucky. Table A-1 (see Appendix A) provides a jail-by-jail breakdown, identified by county location, and the number of cases originating from each jail. The number of cases is presented (N), as well as the percentage of the total that each jail comprises. Results are grouped by Pretrial, NCA-PD (12 months), and NCA-PD (24 months) samples. The vast majority of jails contributed 3% or less of the total sample, with the noted exception of Jefferson County (approximately 19%) and Fayette County (approximately 7%).
Demographics
Table 1 presents descriptive information for the entire state sample, grouped in three different categories, or models (Pretrial, NCA-PD 12 months, and NCA-PD 24 months). Taken as a whole, the sample is approximately 26% female, 74% male, 79% white, 17% black, and 4% hispanic. The average age is approximately 33, and approximately 20% reported being married.
The different samples used to answer the research questions in this report tend to be similar. In most instances, the number of defendants who are classified as hispanic or another ethnicity or race is insufficient to be included in the statistical models as control variables. Therefore, most of the analyses only include white and black as control variables.
Offense Information
Table 1 also presents the original offense types1 for the entire sample and each sub-sample used for the different research questions. Generally, drug, traffic, theft, and driving under the influence appear to be the most frequent offense types across the three samples.

1  It is important to note that defendants could contribute more than one offense to the offense type categorizations.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 7

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 9 of 33

Risk Level
Kentucky currently uses a research-based and validated assessment tool (Kentucky Pretrial Risk Assessment [KPRA]) to assess the risk of pretrial failure (FTA and NCA). The KPRA consists of 12 risk factors, including measures of offense class, criminal justice status, criminal history, failure to appear, and community stability, with each risk factor having a corresponding weight (or points). The weights are summed for a total risk score. The risk scores are categorized into three levels of risk — low, moderate, and high. For the sample, the largest risk category was low risk, with 53% to 67% falling into that level across the five models. The moderate risk level ranged between 29% and 40%, and the high risk level ranged between 3% and 7%.
Days in Pretrial Detention
Table 1 also presents information across the three models regarding days spent in pretrial detention. Cases in the Pretrial model had the lowest average (6.38 days). This fact makes intuitive sense as the pretrial sample included only those defendants who were, at some point, released pretrial. The other models included defendants who were released as well as those who were detained for the entire pretrial period.
Outcomes
Rates of FTA and NCA were presented for the Pretrial model only, with an 11% FTA rate and a 10% NCA rate. Other outcomes include the 12-month and 24-month recidivism rates for the NCA-PD 12 month and NCA-PD 24 month models. The recidivism rate is 24% at 12 months and 34% at 24 months.

Age Female White Black Hispanic Married Risk Level
Low Moderate High Offense Type Drugs Violent Domestic Violence Sex Offense Firearm

Table 1. Descriptive Statistics for Three Models

PRETRIAL MODEL

N

% or

111688

33.18

111623

27.96

110653

80.59

110653

17.21

91153

5.00

108371

21.15

NCA-PD 12 MONTH MODEL

N

% or

142193

33.47

142145

26.12

141092

79.62

141092

18.01

117917

5.30

138607

19.96

NCA-PD 24 MONTH MODEL

N

% or

120962

33.44

120942

25.94

120027

79.35

120027

18.06

99711

5.82

112868

19.74

79901 79901 79901

67.22 29.42 3.36

98707 98707 98707

62.36 32.89 4.07

82916 82916 82916

63.06 32.44 4.50

112030 112030 112030 112030 112030

24.54 4.15 6.71 0.62 2.01

142571 142571 142571 142571 142571

23.24 4.36 7.09 0.45 1.90

121299 121299 121299 121299 121299

22.24 4.12 6.86 0.38 1.78

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 8

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 10 of 33

Theft Traffic Driving Under the Influence Felony Time at Risk Days Spent In Detention 1 Day 2 to 3 Days 4 to 7 Days 8 to 14 Days 15 to 30 Days 31+ Days Mean Days Detained Pretrial Yes/No FTA NCA Sentence in Months
12 Month Recidivism 24 Month Recidivism

112030 112030 112030
112030 109841
112030 112030 112030 112030 112030 112030 112030 112030 112030 112030

18.44 30.10 22.37
27.15 103.89
42.34 35.61 8.42 5.99 3.34 4.31 6.38 0.00 11.12 10.33

142571 142571 142571
142571
141676 141676 141676 141676 141676 141676 141676 142571
142571

18.96 28.11 20.68
26.61
32.92 33.58 10.16 9.85 5.20 8.29 12.44 25.32
23.65

121299 121299 121299
121299
120505 120505 120505 120505 120505 120505 120505 121300
121300

18.59 28.72 20.55
24.16
33.19 34.27 10.46 10.16 5.25 6.67 9.20 26.87
33.51

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 9

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 11 of 33
RESEARCH OBJECTIVE ONE:
Investigate the relationship between the length of pretrial detention and pretrial outcome
Research Questions
1a. Is the length of pretrial detention related to the likelihood of pretrial FTA once other relevant statistical controls are considered?
1b. Do the observed effects (of days spent in detention when predicting FTA) differ for subpopulations of defendants?
1c. Is the length of pretrial detention related to the likelihood of pretrial NCA once other relevant statistical controls are considered?
1d. Do the observed effects (of days spent in detention when predicting NCA) differ for sub-populations of defendants?
Primary Findings
Overall, when other relevant statistical controls are considered, defendants who are detained 2 to 3 days pretrial are slightly more likely to FTA than defendants who are detained 1 day (1.09 times more likely). Examining sub-populations of defendants revealed significant differences, however, in the impact of length of pretrial detention when considering defendant risk level. Specifically, low-risk defendants are more likely to FTA if they are detained 2 to 3 days (1.22 times more likely than low-risk defendants detained 1 day or less), 4 to 7 days (1.22 times more likely), and 15 to 30 days (1.41 times more likely). The analysis of the relationship between length of pretrial detention and NCA revealed that longer pretrial detention periods were associated with an increase in NCA for each category. Similar to FTA, examining subpopulations of defendants revealed significant differences in the impact of length of pretrial detention when considering defendant risk level.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 0

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 12 of 33
All categorizations of days spent in detention are associated with significant increases in the likelihood of NCA for low-risk defendants when compared to low-risk defendants detained for 1 day or less.
The longer low-risk defendants are detained, the more likely they are to have new criminal activity pretrial (1.39 times more likely when held 2 to 3 days, increasing to 1.74 when held 31 days or more).
For moderate-risk defendants, the lowest three categories of days spent in detention (2 to 3 days, 4 to 7 days, and 8 to 14 days) are associated with significant increases in the likelihood of NCA.
None of the days-in-detention categories are significant predictors of NCA for high-risk defendants.
Methods and Analysis Results
Bivariate models as well as multivariate logistic regression models predicting FTA and NCA were used to investigate these questions. Control items included length of pretrial detention, length of time in the community (time at risk), defendant risk, demographics, and offense characteristics. The analysis was repeated for subpopulations of defendants (i.e., gender, race, offense type, offense level and risk level).
RESEARCH QUESTION 1A
Is the length of pretrial detention related to the likelihood of pretrial FTA once other relevant statistical controls are considered?
To determine whether there was a relationship between the length of pretrial detention and the likelihood of pretrial FTA, a multivariate logistic regression was estimated (see Table 2). The model included 66,014 cases and controlled for age, gender, race, ethnicity, marital status, risk level, supervision status, offense type, offense level, and time at risk. Several variables in the model revealed a statistically significant relationship with outcome; however, the variable “days spent in detention” was of particular interest in light of the research question. Days spent in detention was categorized in an ascending fashion (e.g., 1 day, 2 to 3 days, 4 to 7 days, 8 to 14 days, and so on). Including days spent in detention into the model in this fashion allows for the examination of each particular length of time as a predictor.
According to the odds ratio, the category 2 to 3 days was statistically and significantly (p < .05) related to FTA. Further, having an odds ratio above 1.00 means detentions of 2 to 3 days (when compared to 1 day) were associated with an increase in the likelihood of FTA. The categories 4 to 7 days, 8 to 14 days, and 15 to 30 days were not statistically related to FTA. The category 31 or more days was statistically related to FTA but had an odds ratio of less than 1.00, which indicates that defendants detained for that amount of time had a significant reduction in the likelihood of FTA.2

2  The reason for this is unknown, yet it is likely that defendants detained more than 31 days have fewer court dates to attend while in the community, thereby reducing the number of opportunities defendants may have to fail to appear.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 1

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 13 of 33

Table 2. Multivariate Logistic Regression Predicting Pretrial FTA

ANY FTA

ODDS RATIO

P

Age

0.99

0.00

Female

1.08

0.01

White

1.03

0.81

Black

1.24

0.11

Hispanic

1.40

0.00

Married

0.88

0.00

Risk Level (Reference = Low)

Moderate

1.83

0.00

High

2.63

0.00

On Probation or Parole

1.08

0.05

Offense Type

Drugs

0.98

0.47

Violent

0.70

0.00

Domestic Violence

0.51

0.00

Sex Offense

0.26

0.00

Firearm

0.82

0.04

Theft

1.41

0.00

Traffic

1.59

0.00

Driving Under the Influence

0.50

0.00

Felony

0.54

0.00

Time at Risk

1.00

0.00

Days Spent in Detention (Reference = 1 Day)

2 to 3 Days

1.09

0.01

4 to 7 Days

1.01

0.81

8 to 14 Days

1.00

0.95

15 to 30 Days

0.95

0.53

31 or more Days

0.80

0.01

Constant

0.05

0.00

N

66014

Model X2

3819.16

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 2

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 14 of 33
RESEARCH QUESTION 1B
Do the observed effects (of days spent in detention when predicting FTA) differ for sub-populations of defendants?
To determine whether the effects of days spent in detention differ for sub-populations of defendants, several additional logistic regression models were calculated (see Table 3). Separate models were calculated for the following sub-populations: whites, blacks, males, females, charged with a felony, charged with a misdemeanor, low risk, medium risk and high risk.
The analysis was conducted for all defendants released at some point pending trial. When interpreting the results, defendants released within one day were used as the reference or comparison group. For white defendants, even short periods in detention (2 to 3 days and 4 to 7 days), when compared to 1 day, were associated with increases in the odds of FTA, while longer periods were not related to FTA. The same held true for black defendants held 2 to 3 days, with longer periods of time not relating to the likelihood of FTA.
Male and female defendants were similar in that even short amounts of time in detention, when compared to 1 day, were statistically associated with increases in the likelihood of FTA (2 to 3 days for males, and both 2 to 3 days and 4 to 7 days for females).
The 2-to-3-day category was associated with a significant increase in the likelihood of FTA for both felony and misdemeanor defendants. The 4-to-7-day category was significantly related to FTA for misdemeanor defendants (but not felony defendants), while the 8-to-14-day category was significantly related to an increase in the likelihood of FTA for felony defendants only.
For low-risk defendants, every category of detention except 8 to 14 days was associated with a significant increase in the likelihood of FTA. For moderate-risk defendants, a short amount of time in detention (2 to 3 days) was associated with a significant increase in the likelihood of FTA, while longer amounts of time (15 to 30 days and 31 or more days) were associated with significant decreases in likelihood of FTA. For high-risk defendants, only one categorization (31 or more days) was statistically predictive of FTA, indicating a decrease in the likelihood.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 3

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 15 of 33

Table 3. Parameter Estimates for Logistic Regression Analyses Predicting FTA

SUBGROUP White 53,135
Black 11,676

DAYS SPENT IN DETENTION
(Reference = 1 day)
2 to 3 Days 4 to 7 Days 8 to 14 Days 15 to 30 Days 31 or more Days
2 to 3 Days 4 to 7 Days 8 to 14 Days 15 to 30 Days 31 or more Days

ODDS RATIO
1.17 1.17 1.03 1.05 0.87
1.17 0.99 1.17 0.90 0.98

Male

47,200

2 to 3 Days

1.14

4 to 7 Days

1.11

8 to 14 Days

1.04

15 to 30 Days

0.91

31 or more Days

0.89

Female

18,581

2 to 3 Days

1.27

4 to 7 Days

1.24

8 to 14 Days

1.14

15 to 30 Days

1.29

31 or more Days

0.91

Felony

11,249

2 to 3 Days

1.26

4 to 7 Days

1.15

8 to 14 Days

1.34

15 to 30 Days

1.30

31 or more Days

1.10

Misdemeanor

46,454

2 to 3 Days

1.17

4 to 7 Days

1.14

8 to 14 Days

0.99

15 to 30 Days

0.85

31 or more Days

0.78

P

LOWER 95% CI UPPER 95% CI

0.00

1.09

1.25

0.01

1.04

1.31

0.66

0.90

1.18

0.62

0.87

1.25

0.20

0.71

1.07

0.02

1.03

1.33

0.93

0.77

1.27

0.19

0.93

1.47

0.56

0.64

1.27

0.92

0.68

1.42

0.00

1.06

1.22

0.10

0.98

1.25

0.56

0.91

1.20

0.30

0.75

1.09

0.29

0.73

1.10

0.00

1.13

1.42

0.03

1.03

1.50

0.25

0.91

1.43

0.08

0.97

1.72

0.62

0.64

1.30

0.03

1.02

1.55

0.29

0.88

1.51

0.02

1.05

1.71

0.08

0.97

1.74

0.56

0.80

1.51

0.00

1.09

1.25

0.04

1.01

1.29

0.91

0.83

1.18

0.21

0.66

1.10

0.13

0.56

1.08

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 4

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 16 of 33

Low

44,379

2 to 3 Days

1.22

0.00

1.13

1.33

4 to 7 Days

1.22

0.01

1.05

1.43

8 to 14 Days

1.06

0.55

0.87

1.29

15 to 30 Days

1.41

0.01

1.10

1.79

31 or more Days

1.31

0.05

1.00

1.72

Moderate

19,300

2 to 3 Days

1.12

0.03

1.01

1.24

4 to 7 Days

1.08

0.29

0.93

1.26

8 to 14 Days

1.06

0.48

0.90

1.25

15 to 30 Days

0.78

0.03

0.62

0.98

31 or more Days

0.77

0.05

0.60

0.99

High

2,161

2 to 3 Days

0.88

0.39

0.65

1.18

4 to 7 Days

0.84

0.38

0.57

1.24

8 to 14 Days

0.82

0.31

0.55

1.21

15 to 30 Days

0.75

0.26

0.45

1.23

31 or more Days

0.41

0.00

0.22

0.74

RESEARCH QUESTION 1C
Is the length of pretrial detention related to the likelihood of pretrial NCA once other relevant statistical controls are considered?
The analysis discussed in Research Question 1a was replicated using NCA as the dependent variable. As before, the variable of particular interest was length of days spent in detention. Every category of days spent in detention was significantly related to the likelihood of NCA. Every category in ascending order (2 to 3 days through 31 or more days) was associated with a significant increase in the likelihood of NCA; however, the impact of 31 or more days was not as large as the impact of other detention time periods.3

3  The argument can be made that at least some of the detained defendants would have recidivated regardless of the time in pretrial detention, and that the decision to detain those defendants was appropriate given their higher propensity to reoffend.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 5

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 17 of 33

Table 4. Multivariate Logistic Regression Predicting Pretrial NCA

ANY NCA

ODDS RATIO

P

Age

0.98

0.00

Female

0.77

0.00

White

0.98

0.91

Black

1.09

0.59

Hispanic

0.44

0.00

Married

0.89

0.00

Risk Level (Reference = Low Risk)

Moderate

2.16

0.00

High

3.29

0.00

On Probation or Parole

1.24

0.00

Offense Type

Drugs

1.26

0.00

Violent

1.04

0.59

Domestic Violence

1.01

0.89

Sex Offense

0.75

0.11

Firearm

1.14

0.11

Theft

1.39

0.00

Traffic

1.04

0.21

Driving Under the Influence

0.97

0.46

Felony

0.94

0.05

Time at Risk

1.00

0.00

Days Spent in Detention (Reference = 1 day)

2 to 3 Days

1.26

0.00

4 to 7 Days

1.34

0.00

8 to 14 Days

1.41

0.00

15 to 30 Days

1.23

0.00

31 or more Days

1.15

0.03

Constant

0.05

0.00

N

66024

Model X2

4145.67

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 6

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 18 of 33

RESEARCH QUESTION 1D
Do the observed effects (of days spent in detention when predicting NCA) differ for sub-populations of defendants?
The analyses discussed in Research Question 1b were replicated using NCA as the dependent variable. As before, the variable of particular interest was length of days spent in detention. The relationship between length of days spent in detention and NCA was tested for each of several subgroups.
Table 5 contains the results for all subgroups. For white defendants, each successive categorization of days spent in detention was associated with a significant increase in the likelihood of NCA. A similar trend was also noted for black defendants.
For male defendants, only detention periods up to 14 days were associated with significant increases in the likelihood of NCA. For female defendants, detention periods up to 30 days were associated with a significant increase in the likelihood of NCA.
For felony defendants, two categories of days spent in detention (2 to 3 days and 8 to 14 days) were associated with significant increases in the likelihood of NCA. For misdemeanor defendants, all categories of days spent in detention were associated with a significant increase in the likelihood of NCA.
For low-risk defendants, all categories of days spent in detention were associated with significant increases in the likelihood of NCA. In fact, the longer low-risk defendants were detained, the more likely they were to have new criminal activity pretrial (1.39 times more likely for defendants detained 2 to 3 days, increasing to 1.74 times when detained 31 or more days). For moderate-risk defendants, the first three categories (2 to 3 days, 4 to 7 days, and 8 to 14 days) were associated with significant increases in the likelihood of NCA. None of the categories were significant predictors of NCA for high-risk defendants.

Table 5. Parameter Estimates for Logistic Regression Analyses Predicting NCA

SUBGROUP

DAYS IN SPENT DETENTION
(Reference = 1 day)

ODDS RATIO

P

LOWER 95% UPPER 95%

CI

CI

White

52,916

2 to 3 Days

1.28

0.00

1.19

1.38

4 to 7 Days

1.37

0.00

1.24

1.52

8 to 14 Days

1.48

0.00

1.32

1.67

15 to 30 Days

1.28

0.00

1.10

1.49

31 or more Days

1.20

0.03

1.02

1.42

Black 11,805

2 to 3 Days 4 to 7 Days 8 to 14 Days

1.19

0.02

1.03

1.38

1.27

0.05

1.00

1.61

1.23

0.08

0.98

1.54

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 7

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 19 of 33

15 to 30 Days

1.18

0.28

0.87

1.60

31 or more Days

0.91

0.60

0.65

1.29

Male

47,209

2 to 3 Days

1.26

0.00

1.17

1.36

4 to 7 Days

1.31

0.00

1.17

1.46

8 to 14 Days

1.44

0.00

1.28

1.62

15 to 30 Days

1.16

0.07

0.99

1.36

31 or more Days

1.11

0.22

0.94

1.32

Female

18,712

2 to 3 Days

1.32

0.00

1.16

1.50

4 to 7 Days

1.47

0.00

1.21

1.77

8 to 14 Days

1.36

0.01

1.09

1.70

15 to 30 Days

1.62

0.00

1.23

2.11

31 or more Days

1.23

0.19

0.91

1.67

Felony

11,334

2 to 3 Days

1.20

0.05

1.00

1.44

4 to 7 Days

1.22

0.08

0.98

1.51

8 to 14 Days

1.50

0.00

1.23

1.84

15 to 30 Days

1.09

0.50

0.85

1.39

31 or more Days

1.01

0.94

0.78

1.31

Misdemeanor

46,337

2 to 3 Days

1.26

0.00

1.17

1.35

4 to 7 Days

1.38

0.00

1.22

1.56

8 to 14 Days

1.50

0.00

1.28

1.77

15 to 30 Days

1.52

0.00

1.22

1.89

31 or more Days

1.35

0.03

1.03

1.79

Low

44,468

2 to 3 Days

1.39

0.00

1.27

1.52

4 to 7 Days

1.50

0.00

1.30

1.72

8 to 14 Days

1.56

0.00

1.33

1.85

15 to 30 Days

1.57

0.00

1.26

1.95

31 or more Days

1.74

0.00

1.39

2.18

Moderate

19,368

2 to 3 Days

1.12

0.03

1.01

1.24

4 to 7 Days

1.20

0.01

1.05

1.38

8 to 14 Days

1.28

0.00

1.10

1.48

15 to 30 Days

1.03

0.76

0.85

1.25

31 or more Days

0.86

0.18

0.70

1.07

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 8

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 20 of 33

High

2,171

2 to 3 Days

1.19

0.27

0.87

1.62

4 to 7 Days

1.25

0.25

0.86

1.83

8 to 14 Days

1.34

0.12

0.93

1.95

15 to 30 Days

1.29

0.27

0.82

2.04

31 or more Days

0.87

0.57

0.53

1.42

RESEARCH OBJECTIVE TWO:
Investigate the relationship between pretrial detention, as well as the length of pretrial detention, and new criminal activity post-disposition (NCA-PD)

Research Questions
2a. Is pretrial detention related to NCA-PD?
2b. Do the observed effects of pretrial detention differ for sub-populations of defendants (likelihood of 12-month NCA-PD and 24-month NCA-PD)?
2c. Is the length of pretrial detention related to NCA-PD?
2d. Do the observed effects of the length of pretrial detention differ for sub-populations of defendants (likelihood of 12-month NCA-PD and 24-month NCA-PD)?
Primary Findings
Being detained for the entire pretrial period is related to the likelihood of post-disposition recidivism. When other relevant statistical controls are considered, pretrial detention had a statistically significant and positive (meaning increasing) effect on 12-month NCA-PD and 24-month NCA-PD. Defendants detained pretrial were 1.3 times more likely to recidivate compared to defendants who were released at some point pending trial. This association could indicate that there are unknown factors that cause both detention and recidivism, but it is an association worthy of further exploration.
Each category of days spent in pretrial detention had a significant increase in the likelihood of both 12- and 24-month NCA-PD, with the exception of 31 or more days (which was not statistically significant). The results suggest that the longer an individual stays in pretrial detention, the higher the likelihood of 12-month and 24-month NCA-PD.
When examining sub-populations, the relationship between pretrial detention and post-disposition recidivism is strongest for low-risk defendants.
Each category of days spent in pretrial detention, except 31 or more, revealed a statistically significant and increasing effect on the likelihood of 12-month NCA-PD for low-risk defendants.
Generally, as the length of time in pretrial detention increases, so does the likelihood that 12-month NCA-PD will occur for low-risk defendants (1.16 times more likely to recidivate if detained 2 to 3 days, increasing to 1.43 times if detained 15 to 30 days).

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 1 9

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 21 of 33

Each category of days spent in pretrial detention was associated with a significant increase in the likelihood of 24-month NCA-PD for low-risk defendants (1.17 times more likely to recidivate if detained 2 to 3 days, increasing to 1.46 times if detained 15 to 30 days).
Methods and Analysis Results
Multivariate logistic regression models were constructed to investigate the relationship between pretrial detention and NCA post-disposition. Control items included risk level, supervision status, offense type, offense class, incarceration history, and demographics. The analysis was repeated for sub-populations of defendants (i.e., gender, race, offense type, offense level and risk level).
RESEARCH QUESTION 2A
Is pretrial detention related to NCA-PD?
NCA-PD was assessed at both 12-months and 24-months post-disposition. Table 6 presents the results of multivariate logistic regression models that test the effects of pretrial detention when predicting NCA-PD while controlling for age, gender, race, ethnicity, marital status, risk level, supervision status, offense type, offense class, and incarceration history. Two models were calculated, one predicting 12-month NCA-PD and one predicting 24-month NCA-PD.
Being detained pretrial significantly increased the likelihood of 12-month and 24-month NCA-PD (1.3 times more likely to recidivate within both time periods), while controlling for all other variables in the model.

Table 6. Multivariate Logistic Regression Predicting Post-Disposition Recidivism

Age Female White Black Hispanic Married Risk Level (Reference = Low Risk)
Moderate High On Probation or Parole Offense Type Drugs Violent Domestic Violence Sex Offense Firearm

12 MONTH NCA-PD

ODDS RATIO

P

0.99

0.00

0.83

0.00

1.44

0.00

1.52

0.00

0.56

0.00

0.86

0.00

1.56

0.00

1.75

0.00

1.04

0.06

1.10

0.00

0.98

0.62

0.97

0.33

0.75

0.02

0.98

0.71

24 MONTH NCA-PD

ODDS RATIO

P

0.99

0.00

0.83

0.00

1.40

0.00

1.50

0.00

0.49

0.00

0.87

0.00

1.58

0.00

1.78

0.00

1.11

0.00

1.12

0.00

0.99

0.76

0.99

0.87

0.79

0.07

0.96

0.53

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 0

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 22 of 33

Theft

1.17

0.00

1.17

0.00

Traffic

0.96

0.06

0.94

0.00

Driving Under the Influence

0.77

0.00

0.81

0.00

Felony

0.83

0.00

0.89

0.00

Incarceration

1.09

0.00

1.14

0.00

Detained Pretrial

1.30

0.00

1.29

0.00

Constant

0.32

0.00

0.59

0.00

N

84,999

71,062

Model X2

3010.15

3056.05

RESEARCH QUESTION 2B
Do the observed effects of pretrial detention differ for sub-populations of defendants (likelihood of 12-month NCA-PD and 24-month NCA-PD)?
Table 7 presents the results of several logistic regression models that estimate the effects of pretrial detention on 12-month NCA-PD, while controlling for age, gender, race, ethnicity, marital status, risk level, supervision status, offense type, offense class, and incarceration history. The results are divided into subgroups as in previous analyses (white, black, male, female, felony, misdemeanor, low risk, moderate risk, and high risk). Pretrial detention was statistically significant and had a positive (increasing) effect on the likelihood of 12-month NCAPD for all models with the exception of felony defendants.
Similar results were revealed for 24-month NCA-PD (see Table 8). Pretrial detention was a statistically significant and positive (increasing) predictor of 24-month NCA-PD while controlling for all other aforementioned variables. Similar results were observed for all subgroups, with the exception of felony defendants, where pretrial detention was not a significant predictor of 24-month NCA-PD.
Table 7. Parameter Estimates for Logistic Regression Analyses Predicting 12-Month Recidivism

SUBGROUP White Black Male Female Felony Misdemeanor Risk Level
Low Moderate High

N 67885 15817 62109 22884 14845 59333
52303 28452 4238

ODDS RATIO 1.32 1.21 1.31 1.25 1.00 1.45
1.27 1.32 1.33

P

LOWER 95% CI UPPER 95% CI

0.00

1.26

1.38

0.00

1.10

1.32

0.00

1.25

1.37

0.00

1.15

1.36

0.95

0.91

1.10

0.00

1.38

1.52

0.00

1.20

1.35

0.00

1.24

1.40

0.00

1.15

1.54

Table 8. Parameter Estimates for Logistic Regression Analyses

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 1

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 23 of 33

Predicting 24 Month Recidivism

SUBGROUP White Black Male Female Felony Misdemeanor Risk Level
Low Moderate High

N 56688 13202 51914 19147 11402 51399
44241 23462 3350

ODDS RATIO 1.32 1.20 1.30 1.23 0.97 1.43
1.28 1.30 1.28

P

LOWER 95% CI UPPER 95% CI

0.00

1.26

1.38

0.00

1.09

1.31

0.00

1.25

1.36

0.00

1.13

1.34

0.56

0.88

1.07

0.00

1.36

1.50

0.00

1.21

1.35

0.00

1.23

1.38

0.00

1.09

1.49

RESEARCH QUESTION 2C
Is the length of pretrial detention related to NCA-PD?
Similar logistic regression models predicting 12-month NCA-PD and 24-month NCA-PD are presented in Table 9, although the length of days spent in pretrial detention is broken out by category, as before (2 to 3 days, 4 to 7 days, 8 to 14 days, 15 to 30 days, and 31 or more days). Each category of days spent in pretrial detention had a significant increase in the likelihood of both 12- and 24-month NCA-PD, with the exception of 31 or more, which was not statistically significant. In addition, the results suggest that the longer an individual stays in pretrial detention, the higher the likelihood of NCA-PD at both the 12- and 24-month points. These results were observed while controlling for all other variables in the model (age, gender, race, ethnicity, marital status, risk level, supervision status, offense type, offense class, and incarceration history) and represent a general pattern, with some exceptions, for length of time spent in pretrial detention.

Table 9. Multivariate Logistic Regression Predicting Post-Disposition Recidivism

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 2

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 24 of 33

12 MONTH

P

24 MONTH

P

NCA-PD

NCA-PD

ODDS RATIO

ODDS RATIO

Age

0.99

0.00

0.99

0.00

Female

0.82

0.00

0.82

0.00

White

1.44

0.00

1.41

0.00

Black

1.52

0.00

1.51

0.00

Hispanic

0.57

0.00

0.50

0.00

Married

0.86

0.00

0.87

0.00

Risk Level (Reference = Low Risk)

Moderate

1.56

0.00

1.57

0.00

High

1.81

0.00

1.80

0.00

On Probation or Parole

1.06

0.02

1.11

0.00

Offense Type

Drugs

1.09

0.00

1.11

0.00

Violent

0.97

0.48

0.98

0.56

Domestic Violence

0.94

0.06

0.96

0.28

Sex Offense

0.76

0.03

0.79

0.06

Firearm

0.97

0.64

0.95

0.37

Theft

1.16

0.00

1.16

0.00

Traffic

0.96

0.06

0.94

0.00

Driving Under the Influence

0.76

0.00

0.81

0.00

Felony

0.81

0.00

0.86

0.00

Incarceration

1.11

0.00

1.16

0.00

Days in Spent Detention (Reference = 1 day)

2 to 3 Days

1.15

0.00

1.16

0.00

4 to 7 Days

1.31

0.00

1.31

0.00

8 to 14 Days

1.41

0.00

1.42

0.00

15 to 30 Days

1.36

0.00

1.37

0.00

31 or more Days

0.96

0.25

1.06

0.10

Constant

0.30

0.00

0.55

0.00

N

84,443

70,565

Model X2

3056.05

3402.06

RESEARCH QUESTION 2D.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 3

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 25 of 33
Do the observed effects of the length of pretrial detention differ for sub-populations of defendants (likelihood of 12-month NCA-PD and
24-month NCA-PD)?
Table 10 presents the results for several logistic regression models predicting the likelihood of 12-month NCAPD. The results are divided by defendant subgroup (race, gender, offense level and risk type). In addition, the effects of each amount of time are presented categorically (e.g., 2 to 3 days, 4 to 7 days, and so on).
In general, it appears that the longer a defendant spends in pretrial detention, the more likely 12-month NCAPD is to occur. For white defendants, each category of days in pretrial detention was statistically significant when predicting 12-month NCA-PD, with the exception of 31 or more days. For black defendants, a similar pattern was observed, but the lowest length of pretrial detention (2 to 3 days) approached, but did not reach, statistical significance.
Male and female defendants were nearly identical in that each category of days spent in pretrial detention, except 31 or more days, was statistically significant and positive (increasing) in predicting the likelihood of 12-month NCA-PD.
For felony defendants, only the categories of 4 to 7 days and 8 to 14 days reached statistical significance when predicting 12-month NCA-PD. Both categories had an increasing effect on the likelihood of 12-month NCAPD while all other categories were not significantly predictive.
For misdemeanor defendants, each category of days spent in pretrial detention, with the exception of 31 or more days, revealed statistically significant and positive (increasing) effects on the likelihood of 12-month NCA-PD.
When low-risk defendants were isolated, each category of days spent in pretrial detention, with the exception of 31or more days, revealed a statistically significant and positive (increasing) effect on the likelihood of 12-month NCA-PD.
When moderate-risk defendants were isolated, the lowest length of pretrial detention lost significance. Further, while the ensuing lengths of pretrial detention (4 to 7 days, 8 to 14 days, 15 to 30 days) revealed a statistically significant and increasing likelihood of 12-month NCA-PD, the final category (31 or more days) reversed the previously established trend. Those detained 31 or more days were significantly less likely to have 12-month NCA-PD.
For high-risk defendants, none of the categories of days spent in pretrial detention were predictive of 12-month NCA-PD, except for the category of 31 or more days. Defendants who were detained for 31 or more days had a significantly lower likelihood of 12-month NCA-PD.
Table 11 presents similar results to those that were presented in Table 10, although the outcome variable was NCA-PD at the 24-month point.
For white, black, female and male defendants, each category of days spent in detention, except 31 or more days, was associated with a significant increase in the likelihood that NCA-PD will occur at the 24-month point. In addition, it appears that generally the strength of the relationship may increase with each increase in the amount of time spent in pretrial detention.

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 4

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 26 of 33

For felony defendants, the middle three categories (4 to 7 days, 8 to 14 days, and 15 to 30 days) were statistically related to 24-month NCA-PD. Each of these three time categories was associated with a significant increase in the likelihood of-24 month NCA-PD.
The same pattern that was observed above for white, black, male and female defendants was also revealed for misdemeanor defendants, with each category of days spent in pretrial detention, except 31 or more days, being associated with a significant increase in the likelihood of 24-month NCA-PD. Likewise, the strength of the relationship may increase with each increase in the amount of time.
For low-risk defendants, each category of days spent in detention was associated with a significant increase in the likelihood of 24-month NCA-PD. The strength of the relationship appears to increase with each increase in the amount of pretrial detention time but drops at 31 days or more.
For moderate-risk defendants, all categories of days spent in detention pretrial, except 31 or more, was associated with a significant increase in the likelihood of 24-month NCA-PD. As was observed in several examples before, the strength of the relationship generally appears to increase as the amount of time spent in pretrial detention increases.
For high-risk defendants, only 31 or more days spent in detention pretrial was significantly associated with 24-month NCA-PD, and the relationship was negative. In other words, defendants who spent 31 or more days in pretrial detention had a statistically significant reduction in the likelihood of NCA-PD at the 24-month point.
Table 10. Parameter Estimates for Logistic Regression Analyses Predicting 12 Month Recidivism

SUBGROUP White 67,885
Black 15,817
Male 62,109

DAYS IN SPENT DETENTION (REFERENCE = 1 DAY)

ODDS RATIO

2 to 3 Days

1.16

4 to 7 Days

1.33

8 to 14 Days

1.42

15 to 30 Days

1.38

31 or more Days

0.97

P

LOWER 95% CI UPPER 95% CI

0.00

1.11

1.22

0.00

1.25

1.43

0.00

1.32

1.52

0.00

1.27

1.50

0.50

0.90

1.05

2 to 3 Days

1.09

0.07

0.99

1.21

4 to 7 Days

1.19

0.02

1.02

1.37

8 to 14 Days

1.31

0.00

1.15

1.50

15 to 30 Days

1.21

0.03

1.02

1.43

31 or more Days

0.86

0.06

0.74

1.01

2 to 3 Days

1.15

0.00

1.09

1.21

4 to 7 Days

1.31

0.00

1.22

1.40

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 5

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 27 of 33

8 to 14 Days

1.45

0.00

1.35

1.56

15 to 30 Days

1.39

0.00

1.27

1.51

31 or more Days

0.97

0.44

0.90

1.05

Female 22,884

2 to 3 Days

1.16

0.00

1.07

1.26

4 to 7 Days

1.29

0.00

1.15

1.46

8 to 14 Days

1.27

0.00

1.12

1.45

15 to 30 Days

1.26

0.01

1.07

1.48

31 or more Days

0.92

0.29

0.80

1.07

Felony

14,845

2 to 3 Days

1.10

0.18

0.96

1.27

4 to 7 Days

1.24

0.01

1.05

1.46

8 to 14 Days

1.40

0.00

1.20

1.62

15 to 30 Days

1.16

0.10

0.97

1.38

31 or more Days

0.97

0.67

0.83

1.13

Misdemeanor

59,333

2 to 3 Days

1.15

0.00

1.10

1.21

4 to 7 Days

1.31

0.00

1.22

1.40

8 to 14 Days

1.44

0.00

1.32

1.56

15 to 30 Days

1.36

0.00

1.24

1.50

31 or more Days

0.94

0.23

0.85

1.04

Low

52,303

2 to 3 Days

1.16

0.00

1.10

1.23

4 to 7 Days

1.32

0.00

1.21

1.43

8 to 14 Days

1.45

0.00

1.33

1.59

15 to 30 Days

1.43

0.00

1.28

1.61

31 or more Days

1.09

0.11

0.98

1.21

Moderate

28,452

2 to 3 Days

1.07

0.10

0.99

1.15

4 to 7 Days

1.21

0.00

1.10

1.34

8 to 14 Days

1.28

0.00

1.16

1.41

15 to 30 Days

1.23

0.00

1.10

1.38

31 or more Days

0.88

0.02

0.79

0.98

High

4,238

2 to 3 Days

0.96

0.78

0.74

1.25

4 to 7 Days

1.04

0.79

0.78

1.39

8 to 14 Days

1.21

0.19

0.91

1.61

15 to 30 Days

1.18

0.31

0.86

1.61

31 or more Days

0.68

0.01

0.51

0.91

Table 11. Parameter Estimates for Logistic Regression Analyses Predicting 24 Month Recidivism

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 6

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 28 of 33

SUBGROUP DAYS SPENT IN

ODDS RATIO

P

DETENTION

(Reference = 1 day)

LOWER 95% UPPER 95% CI CI

White

56,688

2 to 3 Days

1.17

0.00

1.12

1.23

4 to 7 Days

1.35

0.00

1.26

1.44

8 to 14 Days

1.45

0.00

1.35

1.55

15 to 30 Days

1.40

0.00

1.29

1.53

31 or more Days

1.06

0.17

0.98

1.15

Black

13,202

2 to 3 Days

1.12

0.02

1.02

1.23

4 to 7 Days

1.16

0.04

1.00

1.35

8 to 14 Days

1.28

0.00

1.12

1.46

15 to 30 Days

1.21

0.03

1.02

1.43

31 or more Days

1.04

0.62

0.89

1.22

Male

51,914

2 to 3 Days

1.15

0.00

1.10

1.21

4 to 7 Days

1.30

0.00

1.22

1.39

8 to 14 Days

1.42

0.00

1.32

1.52

15 to 30 Days

1.39

0.00

1.28

1.52

31 or more Days

1.07

0.10

0.99

1.16

Female

19,147

2 to 3 Days

1.19

0.00

1.10

1.29

4 to 7 Days

1.33

0.00

1.18

1.49

8 to 14 Days

1.40

0.00

1.23

1.58

15 to 30 Days

1.25

0.01

1.07

1.47

31 or more Days

1.03

0.72

0.88

1.20

Felony

11,402

2 to 3 Days

1.11

0.14

0.97

1.28

4 to 7 Days

1.28

0.00

1.09

1.51

8 to 14 Days

1.42

0.00

1.22

1.64

15 to 30 Days

1.26

0.01

1.06

1.50

31 or more Days

1.11

0.19

0.95

1.30

Misdemeanor

51,399

2 to 3 Days

1.16

0.00

1.11

1.21

4 to 7 Days

1.30

0.00

1.21

1.39

8 to 14 Days

1.46

0.00

1.34

1.58

15 to 30 Days

1.36

0.00

1.23

1.49

31 or more Days

1.05

0.33

0.95

1.17

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 7

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 29 of 33

Low

44,241

2 to 3 Days

1.17

0.00

1.11

1.24

4 to 7 Days

1.35

0.00

1.25

1.46

8 to 14 Days

1.51

0.00

1.39

1.65

15 to 30 Days

1.46

0.00

1.31

1.63

31 or more Days

1.16

0.01

1.04

1.29

Moderate

23,462

2 to 3 Days

1.09

0.04

1.01

1.18

4 to 7 Days

1.20

0.00

1.09

1.32

8 to 14 Days

1.26

0.00

1.14

1.39

15 to 30 Days

1.21

0.00

1.08

1.36

31 or more Days

0.99

0.83

0.88

1.10

High

3,350

2 to 3 Days

0.86

0.30

0.65

1.14

4 to 7 Days

0.89

0.46

0.65

1.21

8 to 14 Days

1.06

0.73

0.77

1.44

15 to 30 Days

1.10

0.60

0.78

1.54

31 or more Days

0.69

0.03

0.50

0.95

APPENDIX

W W W.AR N OLD F O UN DAT I O N . O R G

The Hidden Costs of Pretrial Detention | 2 8

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 30 of 33

Appendix A: Table A-1

JAIL BY COUNTY ADAIR ALLEN BALLARD BARREN BELL BOONE BOURBON BOYD BOYLE BRECKINRIDGE BULLITT BUTLER CALDWELL CALLOWAY CAMPBELL CARROLL CARTER CASEY CHRISTIAN CLARK CLAY CLINTON CRITTENDEN DAVIESS ESTILL FAYETTE FLOYD FRANKLIN FULTON GRANT GRAVES GRAYSON

PRETRIAL

N

%

588

0.52

475

0.42

282

0.25

1,595

1.42

1,253

1.12

3,219

2.87

508

0.45

1,388

1.24

1,080

0.96

439

0.39

1,698

1.52

259

0.23

410

0.37

608

0.54

1,993

1.78

1,371

1.22

783

0.7

398

0.36

2,314

2.07

746

0.67

633

0.57

210

0.19

183

0.16

2,703

2.41

296

0.26

6,971

6.22

1,079

0.96

1,661

1.48

325

0.29

739

0.66

1,201

1.07

777

0.69

NCA-PD 12

N

%

638

0.45

515

0.36

346

0.24

1,787

1.25

1,376

0.97

3,608

2.53

683

0.48

2,132

1.5

1,474

1.03

498

0.35

1,792

1.26

249

0.17

479

0.34

749

0.53

2,756

1.93

1,625

1.14

941

0.66

456

0.32

3,399

2.38

1,195

0.84

1,003

0.7

224

0.16

251

0.18

3,266

2.29

390

0.27

10,868

7.62

1,541

1.08

2,077

1.46

415

0.29

928

0.65

1,434

1.01

858

0.6

NCA-PD 24

N

%

525

0.43

368

0.3

299

0.25

1,383

1.14

1,117

0.92

3,198

2.64

560

0.46

1,929

1.59

1,269

1.05

398

0.33

1,307

1.08

213

0.18

393

0.32

666

0.55

2,535

2.09

1,358

1.12

757

0.62

394

0.32

2,838

2.34

1,051

0.87

902

0.74

169

0.14

201

0.17

2,874

2.37

324

0.27

9,901

8.16

1,270

1.05

1,753

1.45

359

0.3

799

0.66

1,172

0.97

676

0.56

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 31 of 33

GREENUP HARDIN HARLAN HART HENDERSON HICKMAN HOPKINS JACKSON JEFFERSON JESSAMINE JOHNSON KENTON KNOX LARUE LAUREL LEE LESLIE LETCHER LEWIS LINCOLN LOGAN MADISON MARION MARSHALL MASON MCCRACKEN MCCREARY MEADE MONROE MONTGOMERY MUHLENBERG NELSON OHIO OLDHAM PERRY PIKE POWELL PULASKI ROCKCASTLE ROWAN RUSSELL SCOTT SHELBY SIMPSON TAYLOR

462

0.41

796

0.56

694

0.57

2,335

2.08

2,887

2.02

2,560

2.11

1,305

1.16

1,618

1.13

1,344

1.11

390

0.35

520

0.36

417

0.34

1,341

1.2

2,067

1.45

1,900

1.57

113

0.1

145

0.1

125

0.1

1,456

1.3

1,901

1.33

1,686

1.39

263

0.23

371

0.26

316

0.26

22,189

19.81

27,095

19

22,910

18.89

1,449

1.29

1,937

1.36

1,652

1.36

2,896

2.59

3,287

2.31

2,722

2.24

5,015

4.48

6,540

4.59

5,929

4.89

1,019

0.91

1,319

0.93

1,184

0.98

212

0.19

293

0.21

241

0.2

1,637

1.46

2,270

1.59

1,976

1.63

923

0.82

1,210

0.85

986

0.81

274

0.24

357

0.25

301

0.25

715

0.64

788

0.55

652

0.54

185

0.17

248

0.17

203

0.17

638

0.57

852

0.6

721

0.59

604

0.54

818

0.57

720

0.59

1,804

1.61

2,405

1.69

2,145

1.77

709

0.63

878

0.62

722

0.6

619

0.55

671

0.47

585

0.48

1,033

0.92

1,198

0.84

972

0.8

1,933

1.73

2,606

1.83

2,333

1.92

501

0.45

612

0.43

497

0.41

445

0.4

529

0.37

422

0.35

220

0.2

258

0.18

214

0.18

1,136

1.01

1,382

0.97

1,106

0.91

605

0.54

816

0.57

678

0.56

826

0.74

955

0.67

821

0.68

635

0.57

703

0.49

606

0.5

805

0.72

872

0.61

713

0.59

1,147

1.02

1,420

1

1,062

0.88

2,328

2.08

2,599

1.82

2,054

1.69

400

0.36

640

0.45

558

0.46

1,605

1.43

2,056

1.44

1,693

1.4

584

0.52

806

0.57

664

0.55

1,111

0.99

1,310

0.92

1,055

0.87

407

0.36

404

0.28

338

0.28

725

0.65

951

0.67

798

0.66

1,401

1.25

1,680

1.18

1,356

1.12

540

0.48

619

0.43

450

0.37

779

0.7

958

0.67

833

0.69

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 32 of 33

TODD UNION WARREN WAYNE WEBSTER WHITLEY WOODFORD
 

203

0.18

300

0.21

278

0.23

374

0.33

506

0.35

439

0.36

3,293

2.94

4,334

3.04

3,417

2.82

373

0.33

424

0.3

320

0.26

324

0.29

369

0.26

297

0.24

1,223

1.09

1,570

1.1

1,242

1.02

336

0.3

468

0.33

435

0.36

Appendix B: References

Ares, C.E., Rankin, A. & Sturz, H. (1963). The Manhattan Bail Project: An interim report on the use of pre-

Case 5:19-cv-01145-JD Document 1-3 Filed 12/10/19 Page 33 of 33
trial parole. 38 New York University Law Review. 67-92.
Beeley, A. (1927). The Bail System in Chicago. Chicago: University of Chicago Press. (Reprinted, 1966).
Cadigan, T. P., & Lowenkamp, C. T. (2011). Implementing risk assessment in the federal pretrial services system. Federal Probation, 75 (2), 30-34.
Foote, C. (1954). Compelling appearance in court: Administration of bail in Philadelphia. 102 University of Pennsylvania Law Review 1031-1079.
Foote, C. (1958). A study of the administration of bail in New York City. 106 University of Pennsylvania Law Review.
Freed, D.J. & Wald, P.M. (1964). Bail in the United States. Working paper for the National Conference on Bail and Criminal Justice.
Frase, R. (2009) What explains persistent racial disproportionality in Minnesota’s prison and jail populations? Crime and Justice: A Review of Research, 38:201-280.
Leipold, A.D. (2005). How the pretrial process contributes to wrongful convictions. The American Criminal Law Review, 42(4):1123-1165.
Schlesinger, T. (2005). Racial and ethnic disparity in pretrial criminal processing. Justice Quarterly, 22(2):170-192.
Schlesinger, T. (2007). The cumulative effects of racial disparities in criminal processing. Journal of the Institute of Justice & International Studies, 7:261-278.
Ulmer, J. T. 2012 Recent Developments and New Directions in Sentencing Research. Justice Quarterly, 29(1):1-40.
Wice, P.B. (1974). Freedom for Sale: A national study of pretrial release. Lanham, MD: Lexington Books.
Wooldredge, J. (2012). Distinguishing race effects on pre-trial release and sentencing decisions. Justice Quarterly, 29(1):41-75.