Gender Issues, Sex Offenses, and Criminal Justice

Current Trends

Janine Chaneles

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780866563574
• eBook ISBN: 9781317735403
• Topic: Psychology
• Subtopic: Mental Health in Psychology
• Index: Psychology

Here is a powerful look at gender issues in the criminal justice system, particularly as gender is related to sex offenses and the system's response to those offenses. Experts examine inmate sexual aggression, gender disparity in bail setting, racial patterns of rape, the female offender's adjustment to prison life, the psychological profile of female first offenders, and the self-image of juvenile prostitutes.

Gender Disparity in the Setting of Bail: Prostitution Offenses in Buffalo, NY 1977–1979

Frances P. Bernat

INTRODUCTION

Pretrial release has been the subject of much debate in the United States for over twenty years. A portion of this debate has focused upon whether the bail system has treated accused persons without funds for bail differently than those with funds for bail. During the 1960s, critics of the bail system began to press for reforms which would allow for a greater number of persons to be released pending the disposition of their criminal charges, regardless of their ability to post bail. Forrest Dill, in his examination of bail bondsmen, in 1975, observed:

Numerous attempts to reform the bail system have been launched over the last fifteen years. Perhaps surprisingly, appellate courts have had no direct influence on this development. As Caleb Foote observed ten years ago, bail reform has been “the only major reform of recent decades in which the courts have played a wholly passive role.”¹

Bail reforms occurred in many states through legislative changes of bail code provisions. In New York State, much of the reform in pretrial release statutes became effective in 1971.² The New York bail reforms were designed to bring a “fresh structural and phraseological approach” to the subject of bail by redrafting or eliminating “the most archaic and poorly drafted” provisions on bail that then existed.³

While New York has never recognized an absolute right to bail, ⁴ the state does provide for a statutory right to bail in non-felony cases and for a discretionary right to bail in felony cases.⁵ Because this paper analyzes a substantive criminal law offense which is not a felony, ⁶ only the criminal procedure law provisions on bail which apply in the non-felony situation will be discussed.

The statutory right to bail, in a non-felony situation, may be effectuated by police when the accused is arrested;⁷ and/or by the court when the accused is arraigned.⁸ Initially, the police have the option to detain or release an accused at the stationhouse. A decision by the police to allow an accused to be released may engender one of two possible results: the police may decide to release an individual outright, on his or her own recognizance, ⁹ or, place the burden of release on the accused by requiring that the accused post pre-arraignment bail.¹⁰ Thus, the New York legislature permits the police to act in the place of the arraignment judge, at an earlier stage in the judicial process, for the purposes of making pretrial release decisions. A judge, at the accused’s arraignment, faces decisions similar to those faced by the police. Although a judge must not refuse to set bail, the judge has to decide whether to release an accused on his or her own recognizance, or, to require bail and place the burden of release on the accused.

In New York, the only legitimate purpose for setting bail is to ensure an accused’s (continued) presence in court;¹² the amount of bail that may be set must not exceed an amount which would be necessary for such a purpose.¹³ The state legislature revised the bail procedures in partial recognition of past inequities in the system. The revision provides for pretrial via bail forms which are, or may be, the least burdensome for an accused; for example, an accused may be released on bail via an unsecured bail bond, or a partially secured bail bond.¹⁴

The intended effect of the state’s bail code revisions is to release a greater number of persons who are awaiting trial, regardless of socioeconomic status. Because misdemeanors are non-serious offenses, additional justifications have been offered for the allowance of pre-arraignment bail, or release on one’s own recognizance at the stationhouse. These justifications include: saving police resources and providing a less “inconvenient” and “jarring clash with the state and the police” on the part of the accused.¹⁵

This paper aims to determine whether the actual effects of New York’s bail reform reflect the intended effects of the reform measures. Because the police may make bail decisions in lieu of an arraignment judge, decisions made by both the police and arraignment judge will be analyzed.

John R. Baumann has analyzed bail reform in the United States. He argues that the bail reform measures instituted since the 1960s are “saving those already saved and forsaking those who have always been forsaken.”¹⁶ Specifically, Baumann claims:

The explanation for this lack of substantive change is not to be found in either deficiencies of implementation nor evil intentions. Rather, we need to look back at the factors which determine eligibility and recognize the blatant class character of each of them. With this in mind, we should not be at all surprised at the ineffectiveness of bail reform legislation. Bail reform has not, however, been totally “unsuccessful”; but its accomplishments have tended to be tangential to the real issues and problems of bail…. Bail reform gives the facade of meaningful reform while basically altering nothing in a meaningful fashion…. Bail reform thus managed to deflect the challenges being laid before the judiciary, giving the impression of dynamic and progressive change and yet preserving in its most important details a system of justice based on discrimination and class oppression for working-class defendants.¹⁷

Baumann’s assertions strike a blow at bail reform legislation because, if he is correct, then bail reform has been an ineffective tool in combating the problems of discrimination the intended reforms were designed to attack.

Goldkamp and Gottfredson studied factors which influence bail decisions. They divided the bail decision-making process into three steps: a decision to release an accused on his or her own recognizance; a decision to release an accused on bail; and, the specific amount of bail to impose or require.¹⁸ In regard to the first step, they found that the variable which explained the most variance (29%) was the present charge against the accused.¹⁹ In addition, variables which Goldkamp and Gottfredson termed demographic (age, race, sex, employment history, wages), health (narcotics use, hospitalization, etc.) and, legal (suretys, counsel, etc.) did not explain much variance and, therefore, were not determined to influence bail decisions.²⁰ Because the analysis at the first step had already screened the accused, a judge’s knowledge that the accused had used weapons when committing crimes was a main factor in later cash bail decisions.²¹

This paper will focus on the bail decision-making process as it is applied when an accused has been arrested for a prostitution offense. In particular, pretrial released decisions will be examined in order to determine whether gender-based classifications exist. A pretrial release decision may not be based on gender. Such a classification may violate equal protection principles and will be given “scrutiny” by an appellate court upon review.²² By focusing on the relationship between gender and pretrial release with one particular offense, it is hoped that a better understanding of the complex factors involved in pretrial release decisions may be reached.

METHODOLOGY

The source of the data used in this study is the Buffalo, New York, Criminal Court records. Data was collected from court files which indicated that a defendant was arrested for prostitution activity²³ between January 1, 1977 and December 31, 1979. A total of 809 cases was utilized, representing every filed case which was closed by the time that data collection was begun.²⁴

The main issue addressed in this study is what types of people were released at what points during the bail-setting procedure. In this regard, the dependent variable is whether pretrial release occurred, and if so, at ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Editor
• Preface
• Inmate Sexual Aggression: Some Evolving Propositions, Empirical Findings, and Mitigating Counter-Forces
• Gender Disparity in the Setting of Bail: Prostitution Offenses in Buffalo, NY 1977-1979
• The Female Offender's Adjustment to Prison Life: A Comparison of Psychodidactic and Traditional Supportive Approaches to Treatment
• Evidence of Unidimensionality of Locus of Control in Women Prisoners: Implications for Prisoner Rehabilitation
• CB Radio Prostitution: Technology and the Displacement of Deviance
• A Comparison of Delinquent Prostitutes and Delinquent Non-Prostitutes on Self-Concept
• An Analysis of the Factors Related to the Rate of Violent Crimes Committed by Incarcerated Female Delinquents
• The Psychological Profile of the Female First Offender and the Recidivist: A Comparison
• Rape and Racial Patterns
• Rape: A Social Perspective
• Rape as Instrumental Violence: A Study of Youth Offenders