University at Albany, Rand Study Links Legal Representation to Reduced Reliance on Bail

ALBANY, N.Y. (June 27, 2023) — Having a defense attorney present at an initial bail hearing lowered the use of cash bail and pretrial detention without increasing the odds that a defendant won’t show up at a preliminary hearing, according to a new study co-authored by UAlbany Professor of Public Administration and Policy Shawn Bushway.

The paper, “The impact of defense counsel at bail hearings,” was published last month in Science Advances and co-written by Shamena Anwar, a researcher at the Rand Corp., and John Enberg, a senior economist at Rand. Bushway is also affiliated with Rand as a policy researcher.

The paper is based on a year-long field experiment to provide public defenders at some initial bail hearings at Pittsburgh Municipal Court (PMC) and compare results with similar cases where defendants were not represented. “This research design, akin to a randomized control trial, allows us to rigorously evaluate the impact of providing a public defender at the defendant’s initial bail hearing on a variety of defendant outcomes,” the authors wrote.

The results showed that having a public defender at an initial bail hearing decreased the likelihood of a judge requiring cash bail or pre-trial detention “with no impact on failure to appear rates or the probable cause determination at the preliminary hearing.” Results did show an increase in rearrests for third degree felony theft within six months after the bail hearing.

People arrested in Pittsburgh are typically brought to the jail adjacent to PMC and assessed by staff using a tool that rates risk factors, providing an overall risk assessment. Staff then recommend to a judge that the person be either unconditionally released, released with non-monetary conditions or held in jail. Judges read the assessment and make their decision, usually before the bail hearing. And while cash bail is not among the recommendations, judges set monetary bail in about half the cases, the authors found.

Without a lawyer, judges rely only on the assessment. “When a public defender is present, they will speak to the judge in the courtroom while the judge is reviewing the risk assessment paperwork and making their decision (before the hearing). The public defender will have already spoken to the defendant and can make the judge aware of relevant information about the defendant, such as informing the judge that the defendant has a regular job for which they need to show up or that the defendant has a place to live that is separate from where an alleged victim is living,” the paper says.

Result showed that public defenders have substantial impact. In the study, defendants without representation were released on their own recognizance or with no monetary bail 49 percent of the time, while those with public defenders received that outcome 59.2 percent of the time, a 21 percent increase. Pretrial detention for those with public defenders decreased by 10 percent.

Regarding the increase in rearrests of defendants after the initial bail hearing, the study found that those in the group represented by public defenders were 3.2 percentage points more likely to be rearrested within 180 days than those not represented, often for retail theft.

“This paper shows empirically what many already believe inherently: that having a lawyer at every stage of the legal process, including short interactions like the bail hearing, helps defendants,” Bushway said.