Undergraduate Law and Policy Research Lab

The State Attorney for the Ninth Judicial Circuit adopted a no-money-bail policy for nine misdemeanor offenses. Did this change impact defendants' quality of life, recidivism rates, and sentencing?

Eliminating Cash Bail

Reducing or eliminating cash bail has become increasingly promoted, but skeptics have raised concerns that negative consequences may flow from the policy change (Ouss & Stevenson, 2019). "Thus evidence on how monetary bail impacts appearance rates and pretrial crime is crucially important to the future of bail reform" (Ouss & Stevenson, 2019, p. 5). However, evaluating bail reform, particularly the use of non-monetary release is sparse (Ouss & Stevenson, 2019). Similar to the recent study by Ouss & Stevenson (2019), which evaluated the increased use of nonmonetary release in Philadelphia, the proposed project, research objective, and questions are intended to explore the impact of a new non-monetary bail reform instituted by the Orange County (Florida) Office of the State Attorney in mid-2018. Instituting this policy created an opportunity to measure the influence of non-monetary bail on defendants charged with nine low-level, non-violent misdemeanor offenses on a variety of judicial and quality-of-life outcomes compared to pre-policy outcomes, evaluate judicial determinations on bail controlling for demographic and case characteristics, and compare outcomes to a control groups of the remaining misdemeanor crimes.

First Stage

The first stage of the project takes a quantitative approach, using archival data to evaluate the impact of the policy on judicial outcomes (release and sentencing), court appearance, and recidivism.

Second Stage

The second stage of the project focuses on defendant interviews and content analysis to capture the influence of pretrial detention or release on their perceptions about the court system and court actors as well as the consequences of pretrial detention and/or the potential benefits of effective advocacy and non-monetary release on defendants' quality of life, including employment, housing, and child custody.

Research Questions

1. To what extent is prosecutorial advocacy for misdemeanor defendants' non-monetary release associated with judicial bail determinations?
2. What is the relationship, if any, between misdemeanor defendant's pretrial status (release on own recognizance, released on monetary bail, released under new policy, or pretrial detention) and their subsequent judicial outcome?
3. To what extent might defendants' perceptions of the courts and court actors impact court appearance and recidivism rates?
4. To what extent is the bail determination (released on own recognizance, released on monetary bail, released under new, non-monetary bail policy, or pretrial detention) associated with judicial outcomes, quality of life measures, perception of the courts and court actors?

Does the United States Supreme Court rely on social science authority when deciding constitutional issues in criminal cases?

James Acker's 1990 study of social science in Supreme Court criminal cases provided a baseline for its use. This project intends to replicate his work — to thirty years later — to assess whether the Court has more often relied on social science as it has gained greater recognition and acceptance, works by empirical legal scholars have grown, and technology has made social science findings more accessible.

Random selection of criminal cases from 1988-2018

James Acker examined the Supreme Court's use over thirty years in five-year increments. He examined the justices who relied on and cited the social science, and he explored whether the social science was cited in lower court decisions and/or in appellate briefs. Using Westlaw and a narrowed search by content type, cases, and the timeline function, we identified a list of criminal cases decided and published by the Supreme Court. To replicate Acker's study, we will systematically identify and collect information on 40 cases from each of the five time periods: 1988-1993, 1993-1998, 1998-2003, 2003-2008, 2008-2013, and 2013-2018.

Random selection of criminal cases from 1988-2018

Based on earlier studies, including Acker, we hypothesize:

1. There will be an increased use of social science and empirical study over time.
2. The increase will be most prevalent in dissenting opinions.
3. The use of and citation to social science will most often occur in constitutional and deeply-dived issues.

Misdemeanor defendants waive their right to counsel more often than not. Why do they forfeit this foundational right?

Although every state has either a statutory or judicially approved mechanism for defendants to contribute to or repay the costs of public counsel, Florida has one of the most stringent cost-sharing models in the country, which includes a $50 application fee that is not subject to judicial waiver. The Supreme Court has upheld cost-sharing laws, but the Court has not directly addressed the constitutionality of application fees (i.e., a fee for the court to evaluate if defendants are too poor to hire an attorney), nor has scholarly works examined whether these fees chill or dissuade defendants from asserting their right to counsel.

The Preliminary Study

In a preliminary study of this issue, 14 defendants, who plead to misdemeanor crimes at arraignment waived counsel. When asked why they waived counsel, the defendants focused on expedience and efficiency, wanting their case to be over without delay. Most did not think they needed a lawyer.

The overarching focus was on expedience and efficiency. Defendants' short-sighted, results-oriented approach was reinforced by trial judges, who emphasized the quickness of the proceedings. Trial judges did not adequately advise defendants of their rights, nor were they advised of the advantages of using a lawyer or the disadvantages of proceeding without one. Most defendants explained that they did not "need" a lawyer or they implied that a lawyer was unnecessary because the charge was minor. Without proper advisement, defendants seem to hold the incorrect presumption that legal counsel is dispensable and misdemeanor crimes are "minor" without long-term consequences.

The Current Project

The proposed research will expand on the preliminary work by:

1. Interviewing defendants who waive their constitutional rights and those that do not to assess variation in their reasons for proceeding with and without counsel.
2. Asking defendants who waive counsel whether mounting costs-sharing fees, including application fees, chilled their assertion of the right to counsel.
3. Inquiring whether trial judges inadvertently send defendants the message that misdemeanor crimes are unimportant, and lawyers are unnecessary.
4. Examining whether defendants who are adequately informed about the advantages and disadvantages of proceeding with and without counsel, the potential for short- and long-term consequences of misdemeanor arrests and convictions, and the availability of free counsel would choose counsel.

Few defendants appeal from their convictions. In fact, prosecutors are as likely to appeal as defendants. What are the outcomes of their appeals? What factors influence outcomes.

The present research builds on and extends preliminary research conducted in a single Florida county during a single year (n=59), which found that few misdemeanor defendants appealed, the few who appealed were not advised of their right to appeal by judges, and unsurprisingly, the defendants, who appealed, were largely represented by attorneys at trial and on appeal.  Important differences emerged between cases appealed by prosecutors (they were more likely to win) and defendants, and with the experience levels of the prosecutors and defenders at trial and on appeal (Smith, 2019).

Current Project

Using unique datasets of records and transcripts from a ten-year period and an estimated 600 cases appealed from the lower courts in a single metropolitan county in Florida, the present study examines whether the preliminary study patterns hold and investigates:

1. whether representation,
2. the seriousness of the criminal convictions, and
3. the issues raised on appeal

influence appellate outcomes.  The present study will also explore the influence of these independent variables on appellate outcomes, while controlling for race and gender of the courtroom workgroup members, defendants' race and gender, who appealed (prosecutor or defendant), the number of prosecutor and defender practice years, the issues raised on appeal, and the defendants' sentence.

To provide context for the quantitative findings, the trial transcripts will be qualitatively examined to identify, code, and report patterns and themes on differentiated case processing and judicial determinations.