Pretrial Detention

It’s possible, of course, that the people who are sentenced to serve time are more likely to commit crime in the first place — in other words, maybe they get put behind bars precisely because judges recognize that they are a crime risk. That could explain the small increased likelihood that a person will commit future crimes after spending time behind bars. To tackle this question, Loeffler and his Annual Review coauthor Daniel Nagin, a criminologist at Carnegie Mellon University, collected a set of 13 carefully designed studies looking at court systems that did things differently: They randomly assigned criminal cases to judges within the court (in other court systems, case assignment isn’t random). If the future crime rate ended up lower for people sentenced by lenient judges than by judges who sent more people to jail, it would be clear evidence that time in jail — not any quality within the criminals themselves — was making the difference.

When Loeffler and Nagin combed through the data, though, they found that the recidivism rate — the rate of future crime — was generally similar for the cases decided by lenient judges and those decided by more punitive judges. In other words, spending time in jail didn’t increase crime, but it didn’t decrease it either.

Loeffler and Nagin’s analysis did turn up a specific situation where incarceration was consistently linked to an increased likelihood of committing a crime in the future: pretrial detention. This is when people who have been accused of a crime are held in jail while they are awaiting trial. In the US, more than 400,000 people are awaiting trial in jail at any given time.

The finding was preliminary, Loeffler stresses, and more research is needed to confirm the effect. But the data suggest that people held in jail before trial have a higher likelihood of committing crime after their release than people who remain in the community before trial.

It’s not surprising that pretrial detention would have a crime-promoting effect, says Nazgol Ghandnoosh, a research analyst at the Sentencing Project, an advocacy organization working to end mass incarceration. Some people held pretrial are innocent or have committed only low-level offenses that wouldn’t earn a jail sentence, yet they experience the negative effects of incarceration while awaiting trial.

“Holding them for a couple days, a couple months pretrial has devastating implications for their lives,” Ghandnoosh says. Many find it hard to keep a job, hard to keep their housing. Such outcomes for a minor offense or no offense at all, she says, makes it more difficult to live a law-abiding life and could tip people into crime.

Pretrial detention is especially concerning because it disproportionately affects poor people. While wealthier people can typically post bail to get out of pretrial detention, people in poverty can’t. Pretrial detention also has lopsided impacts on people of color: Black and Latino defendants are more likely to be denied bail or to have their bail set at a higher amount.

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