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July 28, 2016

"The Downstream Consequences of Misdemeanor Pretrial Detention"

The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Paul Heaton, Sandra Mayson and Megan Stevenson. Here is the abstract:

In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited.  This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime.

We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect.  These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics.  Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention.  A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention.  These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.

I fear that most criminal justice researchers and reform advocates (myself included) pay much less attention to misdemeanor crimes and punishments than to so many other parts of the justice system. This article (and a few others noted below in prior posts) provides a reminder that we should not overlook this important element of modern justice systems.

Some prior related research and advocacy on misdemeanors:

July 28, 2016 at 11:19 AM | Permalink


I had the pleasure of attending a rotary meeting where Harris County Sheriff Hickman was the speaker.

He described his duties as Jailer for the county. He went into detail on the duties, incumbent upon him, for maintaining the welfare of the inmates and the enormous expense involved therin. He explained how he attempts to maximize the taxpayers dollar against this enormous burden.

I asked him what percent of inmates were persons who could not make bail. He said that he did not know how many "could not" make bail but more than two thirds were pretrial detainees who "had not" made bail, for whatever reason, and that the vast majority of those were merely misdemeanor detainees. He then related a couple of anecdotes about the unfairness of the bail system as it is, in Texas. For instance, a drug dealer with resources can make bail oftentimes, whereas a kid taken into custody for tagging a wall with spray paint may stay in jail because he can't make bail or even secure the resources of a bondsman.

I asked if the county could save money by releasing non-violent felons and he replied that he had zero control over that; that was the responsibility of the judges.

Posted by: Jardinero1 | Jul 28, 2016 11:53:51 AM

Correction, in the last sentence above, I asked him if the county could save money by releasing non-violent "detainees" not "felons".

Posted by: Jardinero1 | Jul 28, 2016 12:01:04 PM

In Obama's speech last night:

"If you want more justice in the justice system, then we’ve all got to vote – not just for a President, but for mayors, and sheriffs, and state’s attorneys, and state legislators. And we’ve got to work with police and protesters until laws and practices are changed."

Posted by: Joe | Jul 28, 2016 12:21:39 PM

The paper is also valuable as a source of baseline information about misdemeanor sentencing practices that is not easily available otherwise because state corrections departments maintain much better publicly available statistics about their inmates than local jails. Table 1 in the paper provides a particularly useful summary of these facts:

Table 1: Characteristics of Defendants by Pretrial Release Status
Overall Detained Released
Convicted 68.3% 79.4% 55.7%
Guilty plea 65.6% 76.8% 52.8%
Any jail sentence 58.7% 75.0% 40.2%
Jail sentence days 17.0 25.4 7.4
Any probation sentence 14.0% 6.2% 22.9%
Probation sentence days 49.4 22.5 79.9
Requested appointed counsel 53.2% 71.3% 32.6%
Amount of bail $2,225 $2,786 $1,624
Level A misdemeanor 30.7% 33.5% 27.4%
Male 76.8% 79.8% 73.5%
Age (years) 30.8 31.6 30.0
Black 38.9% 45.6% 31.3%
Citizen 74.1% 71.5% 77.0%
Prior misdemeanors 1.51 2.08 0.85
Prior felonies 0.74 1.11 0.31
Sample size 380,689 202,386 178,303

Focusing just on the jail sentencing component: Any jail sentence 58.7% 75.0% 40.2%
Jail sentence days 17.0 25.4 7.4

it is notable that the median misdemeanor sentence for someone released is zero days of incarceration, and that the average jail sentence for those who are detained is 25.4 days. Both of these are typically a small fraction of the maximum statutory sentences, leaving limited jurisdiction judges discretion on the order of a multiple of ten between average sentences and maximum ones, and essentially no misdemeanor sentences less than the maximum is reviewable on appeal even if one guy gets a year and another gets a week, for precisely the same crime and there is little objective difference between the two offenders in any other respect.

Posted by: ohwilleke | Jul 28, 2016 5:29:37 PM

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