Bail Setting: A Study of Courtroom Interaction

Abstract

This study examines the brief interactions in a busy courtroom among the principal parties to the bail-setting decision. The main patterns of interaction are as follows: The judge sets bail without discussion, or after an amount is first suggested by one of the opposing attorneys, or after an amount is suggested and one of the attorneys makes a countersuggestion. The defense attor ney is the least influential member of the bail-setting triad; he least often initially suggests a bail amount, and his initial sug gestions become the final amount half the time, compared to nine-tenths of the time for the judge and the prosecutor. The judge and the prosecutor make similar bail suggestions, but for different reasons: the prosecutor, because of the prescriptions of his role; the judge, because he is most vulnerable to public criticism. A consequence of the judge-prosecutor coalition is that conflict over bail amount is suppressed. Bail-setting serves the latent function of diffusing the responsibility for the defendant's release. The three general types of bail disposition—release on recognizance, bail in a dollar amount, and remand—are seen as progressively decreasing the judge's share in the responsibility for releasing the accused.