To Detain or Not to Detain? Using Propensity Scores to Examine the Relationship Between Pretrial Detention and Conviction

Published date01 February 2019
Date01 February 2019
Subject MatterArticles
Criminal Justice Policy Review
2019, Vol. 30(1) 128 –152
© The Author(s) 2016
Article reuse guidelines:
DOI: 10.1177/0887403416668016
To Detain or Not to Detain?
Using Propensity Scores to
Examine the Relationship
Between Pretrial Detention
and Conviction
Jacqueline G. Lee1
Recent work has found that individuals who are detained prior to their sentencing are
more likely to be convicted, be sentenced to prison as opposed to jail or probation,
and to receive longer sentences if convicted. Is this effect due to detention, or
is it merely a result of the same underlying criminal propensity being considered
separately at each stage of the sentencing process? This study uses propensity score
methods to create more comparable comparisons between detained and released
criminal defendants. The results of this study indicate that detention itself has an
independent effect on the likelihood of conviction. Even after matching with available
covariates, individuals who are detained are more likely to be convicted than those
who are released prior to their trial.
criminal justice policy, criminal court, sentencing disparity, sentencing
Bail and pretrial release decisions are a distinct and important part of criminal justice
processing. Although bail and pretrial release decisions have received limited research
attention as compared with later sentencing outcomes, previous studies have displayed
that these early decisions can be the site of meaningful disparity within the United
States (Demuth, 2003; Schlesinger, 2005). Several factors make the pretrial process
one worthy of further academic study. First, a substantial number of criminal
1University of Maryland, College Park, MD, USA
Corresponding Author:
Jacqueline G. Lee, University of Maryland, 2220 LeFrak Hall, College Park, MD 20742, USA.
668016CJPXXX10.1177/0887403416668016Criminal Justice Policy ReviewLee
Lee 129
defendants (approximately 30%-50%) are detained prior to their trial or sentencing,
depending on the sample (see Franklin, 2010; Schlesinger, 2005; Spohn, 2009).
Second, judges are given wide discretion and are often forced to make split-second
decisions with incomplete information (Goldkamp, 1979). Third, unlike other criminal
justice processes, bail decisions are made by a number of different decision makers
and these decisions are rarely reviewed by appellate courts (Clarke & Kurtz, 1983;
Demuth & Steffensmeier, 2004). And finally, pretrial detention involves incarceration
before conviction. While preventive detention and community protection are both
constitutionally permissible reasons for detention, the fact remains that individuals
who are detained while awaiting trial or sentencing have not yet been convicted of any
crime (Goldkamp, 1979; Gottfredson & Gottfredson, 1988).
Furthermore, the significance of pretrial detention to defendants’ lives both before
and after trial or conviction cannot be overstated (Demuth & Steffensmeier, 2004).
While detained, defendants often lose their jobs, are unable to financially provide for
their families, cannot meet family obligations such as child care, and may lose their com-
munity ties (Frazier, Bock, & Henretta, 1980). It is more difficult for them to meet with
their attorneys and this may lead to a lessened ability to aid in preparing a defense (Foote,
1954; Gottfredson & Gottfredson, 1988). Some work has found that lawyers spend less
time with their detained clients than their clients who are not in jail (Allan, Allan, Giles,
Drake, & Froyland, 2005). Kellough and Wortley (2002) have further found that detained
individuals reported pleading guilty as a way to control certainty in their lives. In qualita-
tive interviews, detained respondents stated that they pled guilty to get out of jail soon
because it took longer to go through a trial (Kellough & Wortley, 2002).
Most importantly to the research at hand, defendants who are detained while await-
ing trial tend to have harsher punishment outcomes. Extant research indicates that
detained defendants are more likely to be convicted (Phillips, 2008), to be sentenced to
an incarcerative as opposed to non-incarcerative sentence (Tartaro & Sedelmaier,
2009), and to receive longer sentences if convicted (Sacks & Ackerman, 2014; Spohn,
2009). Previous research on this topic clearly demonstrates that detained individuals
face harsher outcomes than released individuals, but prior studies generally rely on
traditional regression methods that may not fully account for potential selection effects.
Strict comparisons between individuals who received bail compared with those who
did not may overestimate the observed impact of this decision because similar factors
may be driving both the early detention decision and the later conviction and sentencing
decisions. To help address this issue, propensity score matching is a useful strategy
because it provides for closer comparisons of more comparable individuals. The current
study will investigate whether being detained prior to trial is a disadvantage for crimi-
nal defendants when it comes to their likelihood of conviction, or whether the relation-
ship between detention and conviction is actually the result of selection effects. This
article makes a unique contribution to the literature by analyzing a well-documented
relationship with a newer and more precise methodology. This article proceeds by first
reviewing literature on predictors of pretrial detention, then outlines the advantages of
propensity score matching to the question at hand, and then tests the hypothesis that
pretrial detention may have independent effects on conviction.

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