By Megan Stevenson
President Obama granted clemency to 325 prisoners last month, bringing his total commutations to 673, more than the previous 10 presidents combined. But as the president draws attention to the problem of mass incarceration through his executive actions, focusing on those at the tail-end of long sentences only addresses part of the problem.
One of the biggest challenges to reducing mass incarceration in the United States is how we handle the 400,000 people nationwide - more than 4,000 in Philadelphia - who are incarcerated pretrial on any given day.
These detainees, not convicted of any crime, are typically held in custody because they are unable to afford bail. These include significant numbers of people charged with low-level, nonviolent offenses.
The Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School recently analyzed Philadelphia's pretrial bail processes and found that 25 percent of misdemeanor defendants were detained pretrial. Many of these defendants, charged with offenses like petty drug crimes, shoplifting, and first-time DUIs, are held in jail for more than a month due to an unpaid bail deposit required for release.
How much is this bail deposit that is keeping so many low-risk people detained? Usually around $250. Others are incarcerated because of automatic "detainers": If a defendant is on probation or parole for another charge he can be held without bail on any new offense, no matter how petty.
Bail hearings are held over video, depriving the inmate of face-to-face interaction with the magistrate setting bail. The hearings last a few minutes at most, and, in general, there are no lawyers present. Yet the outcome has a huge ripple effect on the detained person's future - the immediate pretrial period, but also the person's career and life.
In a city where one out of four residents lives below the poverty line, a few days in jail can have dramatic consequences, including the loss of a job, housing, and custody of one's children. Jail can be hugely disruptive even if one is not ultimately convicted of the charge that led to the detention.
Those with experience in the system recognize that pretrial detention distorts the fairness and accuracy of criminal proceedings by creating an overwhelming incentive to plead guilty. Even people who are innocent may plead guilty just to get out of jail. Others may feel pressured to accept a plea that comes with a prison sentence, since it is harder to build a strong defense from behind bars. Until now, though, the empirical evidence of these effects has not been conclusive.
We studied Philadelphia to measure whether those detained pretrial had different case outcomes than those able to make bail, after accounting for differences between the two groups that might also affect outcomes (like the offenses charged and defendants' criminal histories). We also used a "natural experiment," or random source of variation in detention and release rates, to assess the effect of detention separately from other variables.
What we found was striking. Detained defendants are 13 percent more likely to plead guilty than similarly situated defendants who made bail. When looking at misdemeanor defendants alone the effects are even more dramatic: Those detained on a misdemeanor charge are 40 percent more likely to plead guilty. In addition to pleading guilty, detainees are charged higher court fees and receive longer prison sentences.
Moreover, African Americans and defendants from low-income neighborhoods are more likely to be detained than those from wealthy neighborhoods, even if they are charged with the same crime and have the same criminal history. This is due at least in part to a money bail system in which the poor stay in jail and the rich go free.
With help from a grant from the MacArthur Foundation, the criminal justice agencies in Philadelphia have begun some reforms of its pretrial system. They are planning to offer legal counsel to defendants at bail hearings, to increase pretrial diversion, and provide alternative release options such as electronic monitoring. They also intend to move away from the use of cash bail.
While these are important changes, we should go much further. We should eliminate cash bail for misdemeanor defendants. Cash bail for felony defendants should be used with caution so as to minimize the likelihood of releasing high-risk defendants who happen to be wealthy, or detaining low-risk defendants who can't afford bail.
These changes would make our system more just by reducing false guilty pleas, reducing race and wealth disparities in incarceration, and saving taxpayer dollars.