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

Rigorous academic research into prosecutorial and judicial decision making has been taking place for over three decades, but a great deal remains unknown about the mechanics of prosecution. A majority of the work done by prosecutors occurs outside of public view, and most research focuses on the ‘back end’ of the adjudication process, leaving unanalyzed numerous decision points made upstream of the final plea and sentencing outcomes. Using unique data from the New York County District Attorney’s Office that tracks 43,971 felony complaints, this research examines racial and ethnic disparity at multiple decision points during case processing, with a focus on the prosecutor’s initial bail request. Using a combination of regression modeling and analysis of predicted probabilities, and viewed through the lens of cumulative disadvantage theory, this study demonstrates that the effects of race and ethnicity vary by decision point and charge. Black defendants were found to have higher bail requests and increased likelihood of indictment, but along with Latino defendants, were found to be less likely to be detained prior to trial as compared to White defendants. The findings for Asian defendants were consistent throughout the decision points studied: they had lower bail requests, increased likelihood of favorable plea bargains, and decreased likelihood of imprisonment. The insights gleaned from this research may help prosecutors understand how their initial actions influence final outcomes, and add to the national conversation on the use of cash bail