“Tomorrow this will become non-detainable:” Legal change, performance, and dangerousness in criminal court

• In Event: Student Forum Roundtables Session
  In Refereed Roundtable (90 minute): Roundtable 14: Criminal Justice

Abstract

On September 18, 2024 money bail was abolished in Illinois, disrupting the legal structure of the courtroom working group that first sets pretrial conditions. This mixed-methods ethnography of 568 cases and comprehensive prosecutor data on 41,329 cases asks, how do court officials set and justify pretrial conditions before and after a legal change? This question intervenes in the working group literature, which has paid limited attention to change. The author finds justifications for pretrial jailing are stable. The prosecutors, defense attorneys, and judges rely on “performance,” the defendant's compliance with past legal requirements as documented in a police-generated network of writings. Gun possession is the most contested category of case as judges differ in the pretrial conditions set and the justification of these conditions. Variation centers on contesting “dangerousness,” predicting future harms, with prosecutors and harsh judges using past performance to predict future harm and justify jailing or unaffordable money bail while defense attorneys and lenient judges distance gun possession from future violence to justify release. While justifications are stable, conditions change. Abolishing money bail removed Judge’s discretion to jail people using unaffordable money bail making prosecutor requests required for detention. With low-level gun possession, this is correlated with a reduction in jailing while people arrested for gun possession with a felony record are detained at an increased rate. This paper concludes by considering policy implications for unintended consequences, implementation, and design.

Keywords: performance, dangerousness, network of writings, working group, discretion, money bail, gun possession

Author

• Micah Clark Moody, Northwestern University