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Crime and Punishment
The Big Driver of Mass Incarceration That Nobody Talks About

If you follow media coverage of America’s mass incarceration problem, you are likely to hear a lot about unscrupulous police officers, mandatory minimums, and drug laws. But you are unlikely to hear these two words that have probably played a larger role in producing the excesses of the American criminal justice system than anything else: plea coercion.

The number of criminal cases that actually go to trial in America is steadily dwindling. That’s because prosecutors have so much leverage during plea bargaining that most defendants take an offer—in particular, defendants who are held on bail, and who might need to wait in jail for months or even years before standing trial and facing an uncertain outcome.

We reported last week on a study from Columbia showing that all things being equal, defendants in Pittsburgh and Philadelphia who were made to pay bail are much more likely to plead guilty. Since then, a separate study from researchers at Harvard, Princeton and Stanford has come out that reaches a similar conclusion:

Using data from administrative court and tax records, we find that being detained before trial significantly increases the probability of a conviction, primarily through an increase in guilty pleas. Pre-trial detention has no detectable effect on future crime, but decreases pre-trial crime and failures to appear in court. We also find suggestive evidence that pre-trial detention decreases formal sector employment and the receipt of employment- and tax-related government benefits. We argue that these results are consistent with (i) pre-trial detention weakening defendants’ bargaining position during plea negotiations, and (ii) a criminal conviction lowering defendants’ prospects in the formal labor market.

As the study notes, letting accused defendants go free before trial has drawbacks: It modestly increases the likelihood that they will miss court dates and be accused of a different crime before their trial. But it also allows them to enter plea negotiations on stronger footing, and increases the chance they will opt for a jury trial. And as we wrote earlier this year, “a world in which only single digit percentages of defendants get a full and fair trial doesn’t seem much like the America you learn about in civics class.”

Of course, bail remains a vital tool for judges, and some defendants are too dangerous to be let out before their trial, period. But there are ways we might be able to reform the pre-trial detention system so as to reduce the number of defendants who simply resign themselves to a guilty plea out of desperation since they can’t come up with the money to buy their temporary freedom. For example, the average amount of money bail assessed should be reduced (it has risen exponentially over the last several decades) and courts should experiment with ankle bracelets and home visits to monitor defendants rather than holding them in a jail cell before they have been convicted of a crime.

The focus on policing and minimum sentences and drug laws in the public discourse is all well and good. But if they are serious about making our justice system more fair and less arbitrary, criminal justice reformers should devote more of their efforts to reforming what happens in the period after arrest and before sentencing. That’s an area where big progress can be made with relatively straightforward, and politically palatable reforms.

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  • Greg Olsen

    While I am sympathetic to the argument that there is a prosecutocracy at work and that fundamental constitutional protections are being abused through the asymmetry of the plea bargain system, the simple fact is that the criminal justice system would breakdown under the weight of a greater number of jury trials. Speedy trials would be an impossibility. The courts are already hopelessly backed up. What really needs to happen is a change in the incentive system for prosecutors.

    • QET

      What also needs to happen is a drastic reduction in the number of criminal laws. A simple robbery can produce half a dozen or more different “charges.” And the backlog could be reduced by revising the rules of civil and criminal procedure to shorten the time to trial and the length of the trial itself.

      • Pat Loudoun

        Unfortunately, “lawmakers” have a job to do. Well, two exactly. Make our lives more difficult and win re-election.

  • Fat_Man

    All of this is very interesting, but what kind of crimes are talking about? Littering, jaywalking, and possession of marijuana are one thing. Murder, rape, and robbery are another.

  • FriendlyGoat

    People should take the time to read this very lengthy snapshot of incarceration to get a good idea of what they are buying:

    • Anthony

      Some reportage (and quite lengthy).

      • FriendlyGoat

        Indeed. It was written, of course, to highlight the particular problems with privatized prisons, but the atmosphere described is also quite common to all incarceration. I’m sensitive to this because I had a close friend who worked in that environment for a while. This article seemed to me like a repeat of what he had already told me.

        • Anthony

          Definitely nothing new (I am sure your friend will attest) to anyone partially familiar with our carceral organizations (profit and non-profit), thanks for the read (though longer than I hoped).

    • JR

      What we are buying is criminals being locked up. I read the whole thing and came to a conclusion that my previous desire to not go anywhere near a prison is correct. By definition, prison is where we lock up those who make life hell for the rest of us. Is it any surprise they make life hell for each other while locked up? I’d rather spend my tax dollars making sure they are kept in humane conditions as much as possible instead of pursuing a unicorn of a “pleasant place to work” prison.

      • FriendlyGoat

        I’m glad you read the whole thing. Sorry I can’t make heads or tails out of your last sentence. “Inmates run this bitch” is not a “humane condition” and does not produce positive results for other citizens when these inmates are eventually released back upon us—-as most eventually are.

        • JR

          So what are you proposing that we do? From the rest of the article I didn’t get the impression that the inmates ran this bitch. They were who they were, caged lowest common denominators of our society. Are you saying we should lock them up for longer? I think so. Should we pay the guards a little bit more than $9/hour? Arguably yes. My point is, after reading the article, I see nothing wrong with the way that prison is ran. Inmates are not rioting and as far as I can tell, not killing each other. How else would you define a good outcome when dealing with those people? They are criminals.

          • FriendlyGoat

            A “good outcome” would be 1) Inmates who do not NEED to be there for societal safety not being there, 2) Custody officers not being made into sociopaths themselves by the culture of their work environment, 3) Putting people who need to be in mental institutions in mental institutions, not prisons by default, 4) Far, far more transparency to the public about the goings-on inside the prisons. The disclosures of this article, for instance, are ground-breaking for the undercover method by which they had to be gathered in order to gather them at all.

            TAI’s point today is that we are over-prosecuting, over-plea-dealing, over-incarcerating. When the public is better informed as to why and how the system is making virtually every inmate worse than when he/she goes into it, we might (might) change course.

          • JR

            The fact that jails tend to corrupt everyone who comes into contact with them is a well known fact. Saying you want to change that is something everyone wants to do, but doesn’t know how. Pay the guards more, hire more guards? Nobody knows. As for who NEEDS to be there, that is up to the justice system to decide. That’s what we have it for. From the way the research piece is written, most of the inmates inside NEEDED to be there and not living in my neighborhood.
            I also believe it us up to the justice system to determine who goes to jail and who goes to the mental institution. Shuffling these people from one heavily guarded impenetrable (hopefully) building to another under different names hardly seems like a real solution.
            As for more publicity, I say sure, bring it on. Let the people decide where they want these inmates to actually live, with them or segregated from the general population. I bet a surprisingly (at least to you) large number will be in favor of continuing incarceration of violent criminals.

          • FriendlyGoat

            If everybody wanted to do it—-it would be done. The fact is most citizens don’t know how useless the prison experience is and of those who do know, most do not much care. At one end of the spectrum there are people who say the crappier the better. Instead of nitpicking with me, why aren’t you writing original comments to argue with TAI for its insinuation that there is something wrong with over-use of mass incarceration?

          • Anthony

            FG, some additional edification (not that you need it specifically): “Between 1990 and 2005, a new prison opened in the United States every ten days. Prison growth and the resulting ‘prison-industrial complex’ – the business interests that capitalize on prison construction – made imprisonment so profitable that millions of dollars were spent lobbying state legislators to keep expanding the use of incarceration to respond to just about any problem. Incarceration became the answer to everything – health care problems like drug-addiction, poverty that had led someone to write a bad check, child behavioral disorders, managing the mentally disabled poor, even immigration issues generated responses from legislators that involved sending people to prison.” (Just Mercy, 2014)

            TAI and its representatives are informed enough to know issues around incarceration.

          • FriendlyGoat

            You’re right, and now we are noticing that this was not as cool an idea as met the 1990’s eyes. It’s expensive, it’s repressive, it’s wasteful and it has become another vehicle for sucking money upward. I told you I had a friend who worked in prisons for a time.
            The upshot was that anybody on staff with even an ounce of interest in helping inmates actually improve themselves before release was vilified. The entrenchment of horrible (horrible) attitude in the staff middle management is more an issue than most people think.

          • Anthony

            Most people, unfortunately, are either indifferent or don’t care (I think). Still, the incarceration issue has acquired resonance in some segments of our society – the number of women sent to prison increased 646% between 1980 and 2010. Check out Tutwiler (Women Prison) in Alabama and historical complaints of sexual violence versus staff as your friend probably knows better than we – though I believe a settlement was reached with Department of Justice.

          • JR

            I thought we were just having a conversation which is very much on topic of the article and TAI post.
            You write that “most do not much care”. That is correct. I’m fairly familiar with criminal justice system through acquaintances and I do not much care. Should we pay guards more and attract a better class of people? Sure, as an experiment we can try that. I have nothing against that. Prisons were always dens of corruption since early Babylonian times and I’m sure will continue to be long after both of us are gone. Human nature is what it is. I’ve learned to accept it, since it is something I cannot change.
            Finally, I disagree with you on point that there is mass over-incarceration. Despite material uptick in crime over the past two years and material increase in violence against the cops, crime is still pretty low. Suburbs of New Jersey are still very safe and I like it that way. I like knowing people who pose danger to society get locked up. I care about the safety of my family more than I care about some felon. I suspect vast majority thinks like I do.

          • FriendlyGoat

            What we all should care about is trying to dissuade felons from becoming felons or remaining felons. We’re not very good at it, and having too many people in prison at too much financial and societal cost is evidence of that. As for getting a more effective “quality” of people to be the custody officers, higher wages might help but the main problem is the middle managements (who already ARE making higher wages) and the culture of secrecy they have built around themselves as insulation from criticism. We hire fairly decent people on the low end—-and none of them can stay because of the negative pressure from the crappy chains of command they work in.

          • JR

            I think having felons in the general population has much more ruinous societal and financial costs than keeping them locked.
            I’m not surprised that lower level employees blame the middle management, who then blames senior management, who then blames the hard negotiators from the State to run these prisons, who then blames the Feds, who then blame lower level employees for not doing their job.
            Working in prison is not for everybody. If you doubled my current comp to be a CO, I wouldn’t do it. In short my position can be summarized as follows: I’m willing to spend the extra money to keep these people locked up. It is an investment in public safety and as a responsible citizen I’m happy that I’m able to do my part providing this societal good.

          • FriendlyGoat

            I’ll be holding my breath for your call for higher taxes so that you can spend “extra money” on prisons and be happy doing your part in keeping more and more people in custody.

          • JR

            If they deserve to be in custody, I’d be more than happy to pay taxes to keep them there. I don’t want my neighborhood to turn into another Baltimore. I’m a law abiding citizen who expects my elected officials to protect me by being tough on crime.

          • f1b0nacc1

            Don’t cede the point. I also want to pay for prisons…lets do it by cutting other spending. The idea that the only way to get the things that we feel are necessary is by raising taxes is a typical lefty con…. We do need to start setting priorities and establishing baselines for future spending. In some cases perhaps we will need more revenue (note: more revenue does not necessarily mean more taxes), but in others, perhaps we should be looking at real budget cuts…not simply cuts in the rate of growth in spending….

  • rheddles

    Post hoc ergo propter and unicorn thinking. How many of these people are innocent? If they are guilty, they belong in jail, a place that will inevitably be unpleasant, whether by a plea bargain or a jury trial. If you want to reduce incarceration, legalize drugs and bring back branding.

    • John Schwartz

      While I agree that we should legalize drugs and consider alternatives to incarceration (maybe not branding), I think you’re missing the point.

      Nobody knows how many of these people are innocent, because the system is rigged so that the most rational decision (even for the innocent) is to plead guilty.

      If they are innocent, do they belong in jail, a place that will inevitably be unpleasant?

  • Rick Caird

    The strange thing is the criminal justice system would seize up if they actually had to take everybody to trial. It seems to me that is a symptom of too many laws and a lack of judicious prosecutions.

  • Malcolm_Kirkpatrick

    (American Interest): “…these two words … have probably played a larger role in producing the excesses of the American criminal justice system than anything else: plea coercion.”
    Probably not.
    My choice? “Government schools”.
    If you treated thirty adults the way we routinely treat children, you’d be lucky if all they did was break your legs or torch your house. Compulsory, unpaid labor is slavery.

  • Pat Loudoun

    Let’s not forget that Millennials have absolutely no idea why the laws that they now want loosened or repealed were demanded by…

    Black people.

  • elHombre

    Defendants don’t want jury trials. Defendants want plea bargains – the best they can squeeze out of an overburdened system. And jails that only hold hundreds can’t detain pretrial defendants numbering in the thousands.

    Who are the dim bulbs who write nonsense like this?

  • David Brown

    Having worked in a business that dealt with jails I would offer a different perspective.Namely that every jail I saw had very active bail coordinators trying to get the prisoners out on bail. Keeping a prisoner in jail pending trial costs the Sheriff two or three thousand dollars a month, straight out of his or her budget. They are highly incentivized to get prisoners out the door.

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