Examining Racial and Ethnic Disparity in Prosecutor’s Bail Requests and Downstream Decision-making

Abstract

Although research into prosecutorial and judicial decision-making has been conducted for the past three decades, a great deal still remains unknown. Most research focuses on the ‘back end’ of the adjudication process, leaving decision points prior to the final phases unanalyzed. Drawing on unique data from the New York County District Attorney’s Office that tracks 43,971 felony complaints, this research explores racial and ethnic disparity at multiple decision points during case processing, with a focus on the prosecutor’s initial bail request. A combination of regression modeling and path analysis were applied, revealing that the effects of race and ethnicity vary by decision point. Black defendants demonstrated increased bail requests and likelihood of indictment. However, together with Latino defendants, they were less likely to be detained prior to trial compared with White defendants. Despite identifying a mix of positive and negative cumulative effects, we found significant indirect effects of black defendants via bail request that contribute to the unwarranted racial disparities in both pre-trial detention and indictment outcomes. Insights gleaned from this research help prosecutors understand how their initial actions influence final outcomes, as well as contributing to the national conversation on the use of cash bail.