1 Critical review of the bail system has a distinguished history, for which the following publications may stand as representative: Arthur L. Beeley, The Bail System in Chicago (1966; 2d imp., Chicago: University of Chicago Press, 1927); Caleb Foote, A Study of the Administration of Bail in New York City, 106 U. Pa. L. Rev. 693 (1958); Charles E. Ares, Anne Rankin, & Herbert Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pre-trial Parole, 38 N.Y.U.L. Rev. 67 (1963); U.S., Department of Justice, Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, Poverty and the Administration of Federal Criminal Justice, report submitted to Robert F. Kennedy, Attorney General of the United States, Feb. 25, 1963 (n.p.); Daniel J. Freed & Patricia M. Wald, Bail in the United States: 1964, report to the National Conference on Bail and Criminal Justice under cosponsorship of U.S. Department of Justice and the Vera Foundation, Inc. (Washington, D.C., 1964); Caleb Foote, The Coming Constitutional Crisis in Bail: 11, 113 U. Pa. L. Rev. 1125 (1965); A. Rankin, The Effect of Pre-trial Detention, 39 N.Y.U.L. Rev. 641 (1964); William M. Landes, The Bail System: An Economic Approach, 2 J. Legal Stud. 79 (1973); id., Legality and Reality: Some Evidence on Criminal Procedure, 3 J. Legal Stud. 287 (1974).Google Scholar

2 The substance of the articles on bail appearing in this Journal is part of my forthcoming book, “The Anatomy of Law Enforcement,” to be published by the University of Chicago Press.Google Scholar

3 One drawn by some sort of lottery, which gives each unit in the sampled population an equal chance of being selected. Findings from such a sample can be projected with computable accuracy to the population from which it was drawn.Google Scholar

4 The study began originally under the auspices of the Vera Institute of Justice, whose research director I was at the time. It was financed by the New York State Division of Criminal Justice Services, the state funding branch of the Law Enforcement Assistance Administration of the U.S. Department of Justice.Google Scholar

5 This holds true only for felony arrests; arrests for lesser lawbreaking may be initiated by a summons.Google Scholar

6 N.Y. Crim. Proc. Law § 530. 20 (McKinney Cum. Supp. 1978–79).Google Scholar

7 N.Y. Crim. Proc. Law § 510.30(2)(a) (McKinney Cum. Supp. 1978–79).Google Scholar

8 The bail information we were able to collect is incomplete since it does not record whether the amount was cash bond or not. The omission was discovered only after we had received the criminal history information for the individual cases, which made it impossible to go back to the files since we had been forced to remove the defendant's identification. The harm is small, because the two types divide according to the bail amount set. We obtained the corresponding data (shown below) from the Brooklyn Pretrial Services Agency (see note 10 infra).Google Scholar

Bail amounts up to $250 were predominantly cash bonds; all higher bail amounts contained only a small fraction of cash bond.Google Scholar

9 It goes without saying that both judges and defendants, in the sample as well as in the society at large, include both women and men. But since this study is not considering the factor of the sex of the subjects, for economy and ease of reading in this article the generic singular “he,”“him,” and “his” will be used to refer to both women and men.Google Scholar

10 This pattern has changed in recent years. The Pretrial Services Agency, pioneered by the Vera Institute of Justice originally in one of the boroughs, is now operating on a city-wide basis as an in-dependent organization with the guidance of the deputy mayor for criminal justice. One of the contributions of this innovative agency is to provide the arraignment judge with detailed information concerning the person of the defendant.Google Scholar

11 If bail is set below $250, 9 out of 10 defendants are able to make it. And since only 8 percent of all defendants fall into this minimal bail category, we group them with the defendants who were released without bail. The number of cases included in this and the following graphs does not always reach the number of cases in fig. 1, because in some cases the additional information required for the more detailed statistic was not available.Google Scholar

12 Some of these defendants (their number has never been determined) make bail at some later point, prior to the disposition of their case.Google Scholar

13 The situation is aggravated for the detained defendants who eventually are acquitted or whose cases are dismissed. This, however, is a different problem, created by the higher standard of proof required for conviction than for the pretrial stage of prosecution; “probable cause” as against “proof beyond reasonable doubt.” This unresolved problem has engendered the proposal to hold an evidentiary hearing prior to a defendant's pretrial detention. Jeff Thaler, Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial, 1978 Wis. L. Rev. 441.Google Scholar

14 Ares, Rankin, & Sturz, supra note 1, at 86.Google Scholar

15 For reasons I have never appreciated, Vera's recommendations have always been based on the defendant's demographic and background characteristics. The information did not include the seriousness of the offense or the severity of the sentence that was to be expected. It was left to the judge to base his judgment on the joint weight of all factors. This division makes it impossible to decide whether the judge followed the recommendation. It also makes it impossible to evaluate the recommendation itself.Google Scholar

16 The expression “jump bail” here includes also defendants released without bail (ROR) who failed to return to the court.Google Scholar

17 For some time now, however, the Quarterly Reports of the New York City Criminal Justice Agency have been reporting bail-jumping figures.Google Scholar

18 Wayne H. Thomas, Bail Reform in America 104 table 36 (Berkeley: University of California Press, 1976). The above figure is suspect. For the cities of San Diego, Philadelphia, and Hartford, the cited statistics (these cities provide roughly three-fourths of all cases in the study) claim zero per-cent fled the jurisdiction of the court. Allowing for the rounding-off effect, this means that less than 1/2: of 1 percent jumped bail. For Kansas City, which released only 37 percent of its felony defendants prior to trial, the bail-jumping rate is recorded as 18 percent. Such stark differences suggest error in the data compilation.Google Scholar

19 Determining the jump rate is a tricky business because nonappearances differ in kind, from the involuntary missing of a court appearance or two to the deliberate decision not to appear again. The issuance of a bench warrant seldom distinguishes the temporary from the permanent disappearance. The proper way of making the distinction is to define flight through the lapse of a sufficiently large time interval, for instance, a six-month period. As defined in this study, bail jumpers include all who disappeared sufficiently long from the system so that a warrant for their arrest was issued and had not been returned by the time, at least several months later, when our data were collected and the cases were recorded as undisposed.Google Scholar

20 See fig. 7 supra.Google Scholar

21 Bellamy v. Judges & Justices, 41 A.D. 2d 196, aff'd, 32 N.Y. 2d 866, 346 N.Y.S. 2d 812, remittitur amended, 33 N.Y. 2d 632, 347 N.Y.S. 2d 582 (1973), and Wallace v. Kern, 520 F. 2d 400 (1975), cert. denied, 424 U.S. 1912 (1976).Google Scholar

22 The law indeed instructs the judge to do this. See point 8 of the statute on p. 770 and note 7 supra.Google Scholar

23 The relationship, as observed in fig. 3, is not very strong.Google Scholar

24 Arthur R. Angel, Eric D. Green, Henry R. Kaufman, & Eric E. Van Loon, Preventive Detention: An Empirical Analysis, 6 Harv. C.R.-C.L.L. Rev. 289, 348–49 (1971), reprinted by American Bar Foundation under Law Review Research Project: Staff of the Harvard Civil Rights-Civil Liberties Law Review, op. cit. (Chicago: American Bar Foundation, 1971) (footnotes omitted).Google Scholar

25 There is a hint in our data that being in jail may also affect the defendant's decision whether to go to trial or to plead guilty:Google Scholar

26 Such a study would be of particular interest because, at the present time, the New York prosecutors bring hardly any misdemeanor cases to trial. Being in jail on such a charge, therefore, may be the major incentive to pleading guilty.Google Scholar

27 The only way, obviously not a feasible one, to eliminate this effect of pretrial detention would be an early, unchangeable decision by the district attorney whether or not to prosecute and to go to trial if the defendant does not plead guilty to the charge.Google Scholar

The problem cannot easily arise under continental European law because there the guilty plea is unknown; no conviction can be obtained without trial.Google Scholar