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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