Academic journal article Boston University Law Review

Costs of Pretrial Detention

Academic journal article Boston University Law Review

Costs of Pretrial Detention

Article excerpt

(ProQuest: ... denotes formulae omitted.)


Over the past few decades, the amount of money expended on the administration of the criminal justice system has skyrocketed.1 In particular, spending on prisons has increased dramatically.2 According to one study, spending on corrections rose 455% between 1972 and 2002.3 Institutions of higher learning and prisons compete for limited state funds, and prisons often win.4 In California, thirty years ago, 10% of the state general fund went to higher education and 3% went to prisons; today, 11% goes to prisons and 7.5% to higher education.5 Per-inmate spending in the state is now $48,214, compared with per-student spending of $7463.6 And nationwide, the United States spends an estimated $80 billion per year on incarceration.

However, not all incarceration costs are associated with prisoners. Rather, much of it goes toward housing pretrial detainees-individuals held without bail based on some perceived level of dangerousness or flight risk. Pretrial detainees now make up the majority of detainees nationwide.7 Historically, many inmates enjoyed the constitutional right to release before trial.8 But as the law has evolved in this area, judges have been charged with deciding which defendants can be safely released and which should be held in jail before trial.9 The current balancing process that judges use to make pretrial release and detention decisions is laden with individual biases and ad hoc heuristics that make these decisions unpredictable.10 This is evidenced by the inconsistency in pretrialrelease rates across counties in the United States-some judges release less than 5% of defendants, whereas others release more than 90% of defendants, even when the defendants were charged with exactly the same types of crimes in similar neighborhoods.11 Given the amount spent on pretrial detention and the inconsistent decision-making processes from which those costs stem, our current system requires reconsideration.

In this Article, I explore the potential value of a cost-based method of pretrialdetention decision-making. In its simplest form, cost-benefit analysis is a means of converting the losses and gains of two different courses of action into quantifiable dollar terms and aggregating to determine total gains and losses to society.12 It is an examination of the factors that weigh in favor of or against two courses of action-with the goal of deciding which course, as a matter of policy, will produce the greatest net benefit.13 Relying on my own research as well as on data aggregated from prior studies, I first quantify the total costs and benefits-both economic and social-of pretrial detention of those accused of various crimes and compare those to the costs and benefits of pretrial release. Next, with the understanding that it is likely unrealistic to achieve the optimum pretrial-detention policy of detaining only those individuals for whom detention produces a net benefit to society, I use this same data to identify characteristics of felony criminal defendants that most accurately predict the net benefit of a judge's decision to detain or release a particular defendant pretrial. I ultimately find that with violent crime, economic savings are greatest when a relatively low number of defendants-those statistically most likely to pose a danger to society-are detained pretrial. I further find that adopting such an approach could yield savings of $78 billion as compared to the current approach of deferring to the subjective evaluation of judges. I suggest that, at a minimum, federal and state courts should consider a cost-benefit approach to pretrialdetention decision-making as they seek ways to increase efficiency in the criminal justice system and reduce budget expenditures overall.

This Article proceeds as follows: Part I lays out the costs inherent in the decision to either detain or release a defendant pretrial. Part II presents the empirical model used to determine the net costs and benefits of both pretrial detention and pretrial release and then determines the factors that are most predictive of cost savings to society. …

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