Student Review:

In this article, Ayres and Waldfogel describe the results of their market-based test for race discrimination in the bail bond market.  The authors use the amounts set by bond dealers to determine whether courts are discriminating on the basis of race in setting bail for defendants. Ayres and Waldfogel used New Haven, Connecticut as the basis for their research.
     The law of Connecticut provides that bail should be set at the smallest amount to ensure that the defendant will appear in court.  Studies done in Connecticut have shown that the bail amounts for black defendants were much higher than white defendants pointing to a racial bias by the courts.  However, these statistics were done using a regression analysis test that attempts to eliminate the permissible factors that affect the size of bail.  Since this type of test has many problems of eliminating variables, the authors have developed another process to study racial discrimination in the bail setting.  Ayres and Waldfogel focused their study on the rates charged by bond dealers. Assuming that the market is competitive enough to drive prices down to their minimum, the authors felt that the bail bond amount should equal the defendant's true probability of flight.  They found that the rates charged by bond dealers to minority defendants are much lower than the rates charged to white defendants.  The authors state that this finding demonstrates that the courts are setting bail at a higher amount for black defendants when their risk of flight does not require such high bail.  Thus, the prices established by bond dealers shows that judges are using race discrimination in bail setting.
     The analysis begins with a finding that New Haven is an area that has substantial competition between bond dealers.  This competition forces the dealers to charge below the maximum statutory rate.  Thus the bail-bonding rate reflects the true cost of the defendant's flight risk.  If the courts set bail levels solely to prevent the flight of the defendant, then the rates charged by bond dealers should be the same for all defendants.  However, if the bail was set too high for black defendants at the court stage, the authors predicted they would find a lower payment required by bond dealers (a price that reflects the true risk of flight).  The data for 1990 demonstrated that African-Americans do pay lower bail rates, demonstrating race discrimination on the court level.  Bail dealers (by setting lower rates that judges) can minimize the impact of race discrimination but cannot totally eliminate it.
    The authors based their findings on the assumptions that bond rates are proportional to flight probabilities, bail bond dealers set rates to equalize flight risks, and the selection used is a representative sample of all criminal defendants.  Ayres and Waldfogel explored each of these assumptions to determine if they were valid.  First, the authors found that the bond dealers did not set rates based on the defendant's ability to pay, monitoring and search costs were not significant enough to effect the disparate bail rates, and forfeiture, collateral and fixed costs did not play a role in setting bail bond amounts.  The authors also refuted the probability that judges used alternative judicial goals in setting bail amounts.  Finally, the authors found that the sample selection may have affected the racially disparate rates, but the difference in rates even for low bail rates demonstrated that the sample selection is valid.
    The authors found that using a market test for race discrimination had many advantages over traditional regression tests.  While not without alternative theories, the data proved that courts set bail rates out of proportion for minority defendants' flight probability. Thus, the study suggests that Connecticut courts use race discrimination in setting of bail for minority defendants.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999