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The Legal/Extra-Legal Controversy: Judicial Decisions in Pretrial Release

Published online by Cambridge University Press:  01 July 2024

Ilene H. Nagel
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Abstract

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This study analyzes data for state criminal defendants prosecuted in New York to determine the bases upon which judges make pretrial release decisions for these defendants. Treating statutory law as defining the category of legal variables, it finds legal factors substantially affect decisions about whether to release a defendant on recognizance, the amount of bail required, and whether to offer a defendant a cash alternative to a surety bond. The impact of these factors varies, however, depending upon the particular decision being made. Factors not prescribed in the statute—extra-legal factors—are also found to affect these pretrial release decisions. Their impact, too, is decision context specific. Among the extra-legal factors that affect pretrial release decisions, the effects of status characteristics of the defendant pale in comparison to the effects of bench bias and measures of the defendant's dangerousness.

Type
Research Article
Information
Law & Society Review , Volume 17 , Issue 3 , 1983 , pp. 481 - 515
Copyright
Copyright © 1983 The Law and Society Association.

Footnotes

*

Support for this research was provided by a Yale Law School Daniel and Florence Guggenheim Fellowship to the author, by the Indiana University School of Law, and by the Rockefeller Foundation Scholar-in-Residence program in Bellagio, Italy. Special thanks are extended to Richard Berk, Lawrence Friedman, Daniel J. Freed, John Hagan, Sheldon Plager, Peter Rossi, and David Thomas for their comments on earlier drafts. Thanks are extended to Liese Sherwood-Fabre and Kathy Ross for assistance with data analysis. The manuscript benefited considerably from the substantive and editorial comments suggested by Richard Lempert, Editor of the Law & Society Review. Additional analyses to which I refer can be obtained from me by written request.

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