If you’re arrested, the court will make certain—somewhat subjective—judgements on your character. If the judge considers you to be an extremely low-risk defendant—e.g., you have no previous criminal record, and your arrest was for a minor crime—they may release you from jail on the condition that you return to court for follow-up proceedings.
If the judge thinks you’re a relatively low-risk defendant—i.e., your chances of committing another crime if you’re released are low—then you may be released on bail. This means that you must pay your bail—a fixed sum of money—for your release, and you must promise to appear in court for follow-up proceedings. You get your bail money back after you make all your requisite court appearances.
Finally, if the judge deems you to be a high-risk defendant—i.e., you’re perceived to be recalcitrant and have a high likelihood of committing another crime if you’re released—then the judge may refuse to allow the option of bail altogether. In this case, you will have to wait in jail until your case concludes.
Indicators of racial bias
A recent study published in the Quarterly Journal of Economics compared the behavior of bail judges in Miami and Philadelphia. It found that in both cities, bail judges are racially biased against black defendants—but more so in Miami than in Philadelphia.
Researchers found that racial stereotypes—which inaccurately represent black defendants as more likely to engage in criminal activity—make such defendants less likely to receive the option of bail. Compared to white defendants, black defendants have a 2.4 percent greater likelihood of being held in jail without bail. If they are granted bail, the bail amount is an average of $7,281 higher. The study shows that such bias exists among black and white judges alike.
What you can do
The study indicates that racial bias in bail judges is markedly lower among experienced judges—i.e., judges with at least 9.5 years of experience working in the bail system. It also suggests that presenting judges with data-based risk assessments could reduce racial bias in the decision to grant bail. It’s important to find an experienced criminal defense attorney who can strategically alleviate a bail judge’s concern about your chances of recidivism.