Table of Contents Introduction I. The Pretrial Process and Prior Empirical Literature A. On Bail and Pretrial Detention B. Challenges for Empirical Study C. Prior Empirical Literature II. Misdemeanor Pretrial Detention in Harris County A. The Misdemeanor Pretrial Process B. Representativeness of Harris County's Misdemeanor Pretrial System C. Data Description D. Pretrial Detention and Wealth III. Analysis of the Effects of Pretrial Detention A. Regression Analysis B. Natural Experiment C. Future Crime IV. Constitutional Implications A. Equal Protection/Due Process: Does Pretrial Detention Produce Class-Based Case Outcomes? B. Sixth Amendment Right to Counsel: Is Bail-Setting a "Critical Stage"? C. Eighth Amendment: When Is Bail or Detention "Excessive"? 1. Cash bail 2. Pretrial detention D. Substantive Due Process: Is Pretrial Detention Punishment? Does It Impermissibly Infringe Liberty? 1. Pretrial punishment 2. Impermissible regulatory detention E. Procedural Due Process: Does Pretrial Detention Produce "Involuntary" Plea Bargains? Conclusion Appendix Introduction
The Unuited States likely detains millions of people each year for inability to post modest bail. There are approximately eleven million annual admissions into local jails. (1) Many of those admitted remain jailed pending trial. At midyear 2014, there were an estimated 467,500 people awaiting trial in local jails, up from 349,800 at the same point in 2000 and 298,100 in 1996. (2) Available evidence suggests that the large majority of pretrial detainees are detained because they cannot afford their bail, which is often a few thousand dollars or less. (3)
This expansive system of pretrial detention has profound consequences both within and beyond the criminal justice system. A person detained for even a few days may lose her job, housing, or custody of her children. (4) There is also substantial reason to believe that detention affects case outcomes. A detained defendant "is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense." (5) This is thought to increase the likelihood of conviction, either by trial or by plea, and may also increase the severity of any sanctions imposed. (6) More directly, a detained person may plead guilty--even if innocent--simply to get out of jail. (7) Not least importantly, a money bail system that selectively detains the poor threatens the constitutional principles of due process and equal protection. (8)
To date, however, empirical evidence of the downstream effects of pretrial detention has been limited. There is ample documentation that those detained pretrial are convicted more frequently, receive longer sentences, and commit more future crimes than those who are not (on average). (9) But this is precisely what one would expect if the system detained those who pose the greatest flight or public safety risk. One key question for pretrial law and policy is whether detention actually causes the adverse outcomes with which it is linked, independently of other factors. On this question, past empirical work is inconclusive. (10)
This Article presents original evidence that pretrial detention causally affects case outcomes and the commission of future crimes. Using detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas (the third-largest county in the United States (11)), this Article deploys two quantitative methods to estimate the causal effect of detention: (1) a regression analysis that controls for a significantly wider range of confounding variables than past studies, and (2) a quasi-experimental analysis related to case timing. The results provide compelling evidence that pretrial detention causally increases the likelihood of conviction, the likelihood of receiving a carceral sentence, the length of a carceral sentence, and the likelihood of future arrest for new crimes.
This Article intentionally focuses on misdemeanor cases. "Misdemeanor" may sound synonymous with "trivial," but that connotation is misleading. Misdemeanors matter. Misdemeanor convictions can result in jail time, heavy fines, invasive probation requirements, and collateral consequences that include deportation, loss of child custody, ineligibility for public services, and barriers to finding employment and housing. (12) Beyond the consequences of misdemeanor convictions for individuals, the misdemeanor system has a profound impact because it is enormous: while national data on misdemeanors are lacking, a 2010 analysis found that misdemeanors represented more than three-quarters of the criminal caseload in state courts where data were available. (13)
For misdemeanor defendants who are detained pretrial, the worst punishment may come before conviction. (14) Conviction generally means getting out of jail; people detained on misdemeanor charges are routinely offered sentences for "time served" or probation in exchange for tendering a guilty plea. (15) And their incentives to take the deal are overwhelming. For defendants with a job or apartment on the line, the chance to get out of jail may be impossible to pass up. Misdemeanor pretrial detention therefore seems especially likely to induce guilty pleas, including wrongful ones. (16) This is also, perversely, the realm where the utility of cash bail or pretrial detention is most attenuated. These defendants' incentives to abscond should be relatively weak, and the public safety benefit of detention is dubious. (17)
Despite these structural problems, money bail practices that result in systemic misdemeanor pretrial detention have persisted nationwide. In Harris County, Texas--the site of this study--more than half of all misdemeanor defendants are detained. (18) Other jurisdictions also detain people accused of misdemeanors at surprising rates. (19) There are several possible reasons for this. A money bail system may be easier to operate than a system of broad release with effective pretrial services. The bail bondsman lobby is a potent political force. (20) The individual judges or magistrates who make pretrial custody decisions suffer political blowback if they release people (either directly or via affordable bail) who subsequently commit violent crimes, but they suffer few consequences, if any, for setting unaffordable bail that keeps misdemeanor defendants detained. In short, institutional actors in the misdemeanor system have strong incentives to rely on money bail practices that result in systemic pretrial detention. (21)
Given the inertia, misdemeanor bail policy is unlikely to shift in the absence of compelling empirical evidence that the status quo does more harm than good. This Article provides such evidence through the use of two types of quantitative analysis. The first is a regression analysis that controls for a wide range of confounding factors: defendant demographics, extensive criminal history variables, wealth measures (zip code and claims of indigence), judge effects, and 121 different categories of charged offense. Importantly, the analysis also controls for the precise amount of bail set at the initial hearing, meaning that the effects of bail are assessed by comparing defendants presumably viewed by the court as representing equal risk but who nonetheless differ in whether they are ultimately detained. In addition, this Article undertakes a quasi-experimental analysis that, akin to a randomized controlled trial that would be used to determine the effect of a treatment in an experimental setting, measures the effects of detention by leveraging random variation in the access defendants have to bail money based on the timing of arrest. These quasi-experimental results are very similar to those produced through regression analysis with detailed controls.
This Article finds that defendants who are detained on a misdemeanor charge are much more likely than similarly situated releasees to plead guilty and serve jail time. Compared to similarly situated releasees, detained defendants are 25% more likely to be convicted and 43% more likely to be sentenced to jail. On average, their incarceration sentences are nine days longer, more than double that of similar releasees. Furthermore, we find that pretrial detainees are more likely than similarly situated releasees to commit future crimes. Although detention reduces defendants' criminal activity in the short term through incapacitation, by eighteen months post-hearing, detention is associated with a 30% increase in new felony charges and a 20% increase in new misdemeanor charges, a finding consistent with other research suggesting that even short-term detention has criminogenic effects. These results raise important constitutional questions and suggest that with modest changes to misdemeanor pretrial policy, Harris County could save millions of dollars per year, increase public safety, and reduce wrongful convictions.
Interest in pretrial policy is now surging. In the months prior to publication of this Article, several other studies have been released that also use both a natural experiment and complex multivariate regression to estimate the effects of pretrial detention. (22) Those studies are set in Philadelphia, New York City, Pittsburgh, and Miami, and they too find that pretrial detention has a causal adverse effect on case outcomes. (23) As a whole, this body of research presents compelling evidence that detention effects exist across case types and jurisdictions. This Article offers a unique contribution by focusing on misdemeanor cases, setting its analysis in Harris County, and putting its empirical findings in constitutional context.
This Article proceeds in four parts. Part I provides background on pretrial detention and surveys the existing empirical literature assessing its effects. Part II outlines the pretrial process in Harris County, which has much in common with the process in other large jurisdictions, and describes the dataset...