There is a significant belief that the bail system discriminates either directly or indirectly against racial and ethnic minorities, as historically, these defendants are likely to be detained because judges either refuse bail or set bail at levels they cannot afford, knowing there is a discrepancy in average income levels. While bail is meant to be objective, judges may subconsciously discriminate based on race or economic status, stereotyping that they are more prone to violence. Factors that affect race-based influence on bail can be attributed to lack of resources and inability to retain an attorney, judges following persecutor recommendations, and cultural/language differences.
Studies demonstrate that race plays a direct role in bail decisions, and even accounting for factors of ties to communities and perceived danger, racial minority men were less likely to be released on their own recognizance and more likely than whites to be required to pay bail.
The racial effect on bail and the pretrial decision have a trickle-down effect on sentencing. Donnelly & MacDonald note that the consequences are reflected in racial disparities in incarceration rates. Defendants who are unable to post bail are more likely to plead guilty and accept longer sentences in comparison to those that have posted bail for similar contexts and crimes. After controlling for measured factors, their findings indicate that cash-only bail and pretrial detention increased the likelihood of conviction and incarceration, with these elements contributing to up to 47% of Black-White disparity in these court cases. Since racial minorities are less likely to be able to post bail, as discussed earlier, they are more likely to take the first available guilty please and serve longer sentences as prosecutors are aware of their lack of leverage and position.
