Legal Commentary

In an era where states are looking to do anything to bring down budget deficits, they may be overlooking one of the most important costs they generate in the criminal justice system: pretrial detention.   Many people would be surprised to know that the majority of people in our nation?s jails are those detained pretrial, not convicts.  And what often happens is that detention begets more detention.  People who are detained pretrial are more likely to get longer prison terms later because defendants have little bargaining power in plea bargaining when they are locked up.  Worse, judges often keep the status quo in sentencing (you?re in jail, you stay in jail, and vice versa).

We all know that the United States has the highest incarceration rates in the world and given the average costs to hold an inmate, this costs us a whopping $66 billion every year.  As a study I?ve recently worked on shows, the solution to this problem is now becoming clearer: states need to release more defendants pretrial to save money.  This will seriously decrease costs, unnecessary incarceration rates and do so without endangering public safety.

Some counties have already started down the road of releasing more inmates.  Recently, for instance, Miami-Dade County cut costs by supervising defendants outside jail at a total cost of around $400 per defendant.  And in Iowa, alternatives to jail saved one district $1.7 million in 2009.

These are great solutions but the obvious question that remains is: which defendants should states release from pretrial detention?  No state wants to release the next Jared Lee Loughner, and obviously there is a risk to releasing more people pretrial, so where does that leave states?  According to the recent empirical study that I conducted with economist Frank McIntyre, based on a dataset of over 100,000 felony defendants over a 15-year period, it looks like if we were smarter about which defendants we released pretrial, we could cut costs and decrease pretrial crime.  Generally speaking, our study shows that judges all over the country are detaining the wrong defendants and could release up to 25% more defendants safely?if they made decisions based on the evidence.   Looking at the data, it seems that judges are often detaining too many older defendants (people over 30), defendants with clean records, and defendants charged with fraud or public order offenses.  After careful consideration at a local level to ensure this is done properly, our model can easily be replicated in all U.S. counties to help policy makers release more defendants and save money?with the significant side-benefit of improving the safety of the public.