Racial and Ethnic Disparities in Pretrial Processes

Cross-Jurisdiction Patterns, Pathways, and Perspectives from the Pretrial Justice Collaborative

Overlapping paper silhouettes of heads in different shades of brown and pink

Fairness and equal treatment are long-standing ideals in the American legal system. Yet Black and Hispanic communities remain disproportionately affected by the legal system, an issue linked to the country’s history of racial discrimination and segregation. Specifically, heavy policing, housing discrimination, and a lack of investment in education and social services in traditionally Black and Hispanic communities have left members of these communities more exposed to involvement in the criminal legal system. Once involved in the system, people of color continue to face unequal treatment at every decision point connected to their cases. In particular, research shows that people of color, compared with White people, are more likely to experience negative outcomes during the pretrial period (the period from the point of arrest up to when a case is resolved in a verdict, plea deal, or dismissal). Decision points during the pretrial period—including arrest, bond setting, and pretrial release and supervision conditions—are particularly important from a policy-change perspective, as these are all opportunities for racially disparate outcomes to emerge.

This report presents findings from a multimethod study of racial and ethnic disparities in the pretrial processes of seven jurisdictions across the country. Specifically, the study aimed to assess racial and ethnic disparities in the jurisdictions’ pretrial case flows, explore the extent to which disparities accumulate across pretrial decision points, and illuminate the challenges and opportunities for addressing disparities from the perspectives of people who work in the participating jurisdictions’ legal systems. To do so, the team used descriptive quantitative analysis, multivariate logistic and linear regression, path analysis, and discussions and focus groups with stakeholders.

Overall, the study found that racial and ethnic disparities were common across jurisdictions at the point of entry into the legal system (as seen, for example, in disparities in arrest rates) and in charging and release-condition decisions (for example, release with or without supervision while awaiting trial). Even when factoring in individual and case characteristics including charge severity and risk level, as was done in two jurisdictions in this study, disparities persisted. In one jurisdiction where it was possible to analyze the whole course of the pretrial process through path analysis, disparities were found to accumulate across pretrial decision points, culminating in longer incarceration sentences. In particular, disparities emerging at the charging stage appeared to be important mediators that contributed to overall sentence-length disparities. However, even when holding charging factors constant, disparities in bond amounts and pretrial detention continued to contribute to overall sentence-length disparities for Black and Hispanic individuals, compared with White individuals. Taken together, these results suggest that mitigating disparities at earlier stages in the pretrial process may help mitigate disparities at the point of sentencing.

People who work in the jurisdictions’ legal systems—in particular, those from the jurisdiction where the research team conducted the path analysis of the complete pretrial process—offered ideas for potential strategies to mitigate disparities in that process. These ideas included reducing the number of people who come into contact with the legal system through arrest reduction/diversion and community-based supportive services, considering a person’s full circumstances in making release-condition decisions, diversifying legal system staffing, establishing stronger communication channels between different areas of the legal system, improving translation services for nonnative English speakers, and improving data quality and the monitoring of disparities. As the field and the country at large continue to grapple with racial and ethnic disparities in the criminal legal system, researchers and jurisdictions must shift toward pilot testing and evaluating promising approaches, as well as highlighting evidence-based solutions.

Document Details

Publication Type
June 2024
Anderson Golub, Chloe, Brit Henderson, Lily Freedman, Kasey Eickmeyer, David Selby, Cassandra T-Pederson, and Sarah Picard. 2024. Racial and Ethnic Disparities in Pretrial Processes. New York: MDRC.