The Role of Private Legal Representation and the Implicit Effect of Defendants’ Demographic Characteristics in Setting Bail and Obtaining Pretrial Release

Abstract

Misdemeanor bail schedules use the seriousness of the alleged crime and the defendant’s criminal history. Court officials contend the schedules ensure that only legal factors are considered for bail. Using longitudinal data from randomly selected misdemeanor cases filed during the first quarter of 2012 in Harris County, Texas we use ordinary least squares (OLS) to test the influence of demographic characteristics of defendants and their ability to retain private representation on the process of setting the monetary amount for bail. We find evidence of implicit bias and a distinct advantage of private representation. Using logit analysis, we estimate how demographic factors and monetary bail influence the probability of pretrial release, and present point estimates of making bail by demographic type. Demographics matter but retaining private counsel increases the probability of bail by sevenfold. Policy recommendations include expanding the use of public defenders and allowing them access to clients much earlier in the process.