Pretrial Release Decisions

  • Michael R. Gottfredson
  • Don M. Gottfredson
Part of the Law, Society, and Policy book series (LSPO, volume 3)


Once an alleged offender has been taken into custody by arrest, it then must be decided whether he or she will remain in custody pending trial or will be released (and, if so, under what conditions). Traditionally, this decision has been the responsibility of the magistrate at the initial appearance.


Criminal Justice System Pretrial Detention Prior Record Preventive Detention Pretrial Release 
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  1. 1.
    Certainly this is a simplification of the operation of bail in the past. For discussions of the history and purposes of bail, see Foote (1965), Dill (1972), Goldkamp (1979), Thomas (1976), and Feeley (1983).Google Scholar
  2. 2.
    In some cases, somewhat analogous issues are raised by considerations of detention or liberty after conviction by a trial court during the course of appeals from conviction.Google Scholar
  3. 3.
    Note that if it were not for the period of detention prior to trial, some of these persons released after conviction may have been required to serve some time in prison—that is, the judge, in passing sentence, may consider the pretrial detention in setting the penalty. There is some reason to believe this. See Landes (1974), Goldkamp (1979), and McCarthy and Wohl (1965).Google Scholar
  4. 4.
    Several studies using similar methods report essentially the same results; see Alexander et al. (1958); Ares, Rankin, and Sturz (1963); and Angel, Green, Kaufman, and Van Loon (1971).Google Scholar
  5. 5.
    For critiques of the methods of these studies see Hindelang (1972) and Goldkamp (1979).Google Scholar
  6. 6.
    Goldkamp used several measures of pretrial custody in his analyses, but for simplicity only this meausre is discussed here. Generally, his results maintained regardless of the measure used.Google Scholar
  7. 7.
    An example of a “symbolic” goal might be a case in which a magistrate set very high bail for a notorious white-collar crime defendant, even though the risk of flight and the potential danger to the community were perceived to be low. An example of a system constraint might be an impetus to set low bail or ROR for a time because the detention facilities are full. To the extent that detention induces guilty pleas, it may have “system advantages.”Google Scholar
  8. 8.
    The best discussions of these issues are found in Goldkamp (1979, 1985).Google Scholar
  9. 9.
    Compare Stack v. Boyle 342 U.S. 1 (1951) with Carlson v. Landon 342 U.S. 524 (1952). For critical discussions, see Foote (1978); Goldkamp (1979, 1985).Google Scholar
  10. 10.
    Portions of this discussion draw upon Goldkamp and Gottfredson (1979).Google Scholar
  11. 11.
    For thorough discussion and critique of the bail bond system see Goldfarb (1965), Thomas (1976), and Flemming (1982). One study examined the effectiveness of bondsmen in preventing defaults in comparison to an alternative of having defendants post 5% of the bail with the court and sign a bond to pay the rest upon default. The 5% was returned to the defendant when he or she showed up for trial. A before-and-after design was used that indicated that the default rates for all defendants released on bail were about the same under the professional bondsmen system and under the deposit system. See Conklin and Meagher (1973).Google Scholar
  12. 12.
    The base rate is defined as the relative frequency of occurrence of an event in the population of interest. Thus, improvement over the base rate in this case requires greater accuracy in prediction than that achieved by predicting that all defendants will be “successes.”Google Scholar
  13. 13.
    The criteria that are intended to influence the bail decision have been surveyed widely in recent years. In addition to the several standard-setting bodies, many states and specific courts outline the criteria to be relied on, in theory. In all, the major influence of the Vera Institute’s community ties criteria is obvious. For a review, see Goldkamp (1985).Google Scholar
  14. 14.
    Other researchers who have studied bail-setting behavior include Landes (1974) and Ebbesen and Konecni (1975). The Landes sample, however, was restricted to only those cases handled by the Legal Aid Society of New York, and thus generalization of his results to bail-setting behavior in general is hazardous. Ebbesen and Konecni undertook a simulation study with eighteen judges and found that community ties, prior record, and the district attorney’s recommendation were related to bail.Google Scholar
  15. 15.
    Preventive detention statutes that coexist with the money bail system have been found to be little used, in part because the procedural requirements and the time involved in invoking preventive detention may be circumvented simply by setting high bail (Roth and Wice 1978).Google Scholar

Copyright information

© Springer Science+Business Media New York 1988

Authors and Affiliations

  • Michael R. Gottfredson
    • 1
  • Don M. Gottfredson
    • 2
  1. 1.Department of Management and PolicyUniversity of ArizonaTucsonUSA
  2. 2.School of Criminal JusticeRutgers UniversityNewarkUSA

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