America’s cash bail system ensures that thousands of people who have not been convicted of a crime nevertheless sit in jail before their trial. A new study finds that pretrial detention is warping our justice system in profound ways.
The newly published study in the American Economic Review, by researchers from Princeton, Stanford, and Harvard, notes that the US has half a million people sitting in jail before trial on any given day—the highest rate in the world. The question they examined: What effect does this massive program of pretrial detention have on the eventual outcomes of the criminal cases, and on society itself? Perhaps their most shocking finding is that merely holding people in jail before trial—which occurs for economic reasons having nothing to do with guilt or innocence—had a large impact on whether or not people plead guilty.
We find that initial pretrial release decreases the probability of being found guilty by 14.0 percentage points... The decrease in conviction is largely driven by a reduction in the probability of pleading guilty, which decreases by 10.8 percentage points... These results suggest that initial pretrial release affects case outcomes primarily through a strengthening of defendants’ bargaining positions before trial[.]
By keeping people in jail until their trial, our system persuades them to plead guilty. That is a perversion of justice at the most basic level. If you have any doubt that this is nothing more than the criminalization of poverty, think about this: “we find in our data that the typical defendant earned less than $7,000 in the year prior to arrest, likely explaining why less than 50 percent of defendants are able to post bail even when it is set at $5,000 or less.”
The study also found that “initial pretrial release increases the probability of employment in the formal labor market three to four years after the bail hearing by 9.4 percentage points,” illustrating how cash bail can easily trap defendants in a downward cycle of poverty and unemployment.
If America didn’t have a cash bail system already the entire concept would strike everyone as grotesque and insane. End it.