By Leann Poarch, J.D. candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
One night, 22-year-old Jorge Valenzuela (name changed to protect privacy) left a nightclub and unintentionally stumbled onto a crime scene. He was taken to jail for six days, initially under suspicion of connection to the crime.
The Prison Policy Initiative estimated that in 2024, over 400,000 individuals like Valenzuela were detained in the United States. They had been convicted of nothing. Instead, they were awaiting trial and could not afford to pay bail. Pretrial detentions make up about 69 percent of the jail population. The median bail set for felonies is $10,000, which represents 8 months income for a typical person detained because they cannot pay their bail.
In 1987, the Supreme Court held that pretrial detention did not violate due process and is therefore constitutional. However, pretrial detention continues to raise humanitarian and justice concerns while also imposing serious and quantifiable costs on detained individuals, which, in turn, imposes economic and social costs on communities. This post will address the quantitative and qualitative research documenting the cost of pretrial detention. It leaves a comparison of costs and benefits of proposed solutions for future work.
Cost to the Individual
Pretrial detention can lead to immediate and lasting economic costs to those detained. Professors Will Dobbie and Crystal Yang suggest that individuals detained pretrial lose an average of $29,000 in lifetime earnings and benefits. In a 2018 article, Dobbie, Yang, and co-author Jacob Goldin tracked over 420,000 criminal defendants in Miami and Philadelphia from 2007 to 2014. They linked detentions to tax records to estimate the impact of pretrial detention on lost earnings and social spillover costs. Their empirical strategy exploited variation in pretrial release after the first bail hearing from a quasi-random assignment of cases to bail judges who varied in the leniency of their bail decisions. The study found that initially released defendants had significantly higher formal earnings and employment rates following the bail hearing.
Marginally released defendants were 11.3 percentage points more likely to have had any income two years after bail (24.7 percent increase from the mean). By three to four years after the bail hearing, initially released defendants were 9.4 percentage points more likely to be formally employed (24.9 percent increase from the mean) and earned $948 more per year over the same time-period (16.1 percent increase from the mean). The study also suggested that pretrial release allowed individuals to remain more connected to formal social structures and safety net programs, which the authors proposed served as proxy for consumption.
The authors suggest that pretrial release can lead to better economic outcomes in three ways:
- Pretrial release may increase attachment to the labor market as individuals avoid a period of incapacitation during which a defendant would not be able to work.
- Pretrial release may improve defendants’ outcomes as individuals avoid the disruptive consequences of detention that make it harder to find and retain employment in the long-term.
- Pretrial detention could independently lower future employment possibilities due to the stigma associated with incarceration. This also limits access to employment-related benefits.
Sandra Smith, Harvard Professor of Criminal Justice and Sociology, conducted a qualitative study that explored the impact of pretrial detention on employment prospects. Smith interviewed 191 individuals who were cited or arrested for misdemeanor offenses between 2013 and 2018. The analysis suggested that detention was correlated with job losses as well as vehicle seizures, contributing to both a short-term and long-term destabilized employment track. The research suggested that job and vehicle loss because of pretrial detention shaped individuals’ perceived barriers to employment years later. A previously detained individual was likely to reduce the intensity and effort of their job search due to employers’ negative perception of a criminal record.
The fear of encountering stigma in the labor market due to a criminal record could well be justified. Myles Martin started looking for employment a week after being released from jail. According to Martin, despite never being convicted of a crime, he had multiple jobs let him go after discovering his detention, leaving him with only restaurant jobs. Martin had to work over 65 hours a week to pay off his court fees. Even after proving his innocence, Martin carried with him the stain of a “crime” he never committed.
Pretrial detention can also affect the short- and long-term health of a detainee, possibly changing their role in society. The Social Policy Data Lab measured elements of trauma that affected detainees’ wellbeing and productivity. Cramped quarters, limited access to laundry and hygiene products, and lack of medical screening led to the rapid spread of infectious disease in jails. The poor quality of nutrition and limited access to healthcare took a long-term toll. Many individuals who spent even a short time in jail prior to their trial suffered from post-traumatic stress syndrome, increased risk of heart disease, and other forms of trauma, challenging assimilation back to work after release.
Cost to the Family
Indirect costs fall on the detainee’s family. Relatives must assume additional caretaking responsibilities and provide for a household without the detainee’s support. According to one study, more than 50 percent of pretrial detainees were the guardians of minor children, making it reasonable to assume that detention’s costs extend to children. The Social Policy Lab estimates that 49 percent of families with incarcerated relatives struggled to meet basic food needs.
Cost of Maintaining and Operating the Current System
Pretrial detention is a significant portion of local government spending. Its costs include providing an individual with basic needs while in the criminal infrastructure and overhead costs of facility and infrastructure administration. In 2017, U.S. local governments spent an estimated $13.6 billion on detaining individuals who had not yet been convicted. This was more than half of the cost of running local jails. Dobbie, Goldin, and Yang state that the net cost for three or more days in detention is between $55,000 and $99,000 per marginal defendant.
Economic Cost to the Community
Dobbie and Yang’s estimation of an average of $29,000 loss in lifetime earnings and benefits by pretrial detainees does not consider the spillover effects of pretrial incarceration on aggregate employment, community cost, and impact on the future wellbeing of those related to the detained. Dobbie and Yang studied the quantitative effects that pretrial detention had on community prosperity by comparing changes in county-level poverty and employment-to-population rates to changes in pretrial detention rates over a period of 10 years. The study found that a 10 percentage point increase in county pretrial detention rates was associated with a 1.41 percentage point increase in county poverty rates and a 2.06 percentage point decrease in county employment rates. The authors further claimed that pretrial detention had an intergenerational impact: up to 20 years after the detention, a 10 percentage point higher pretrial detention rate in 1990 was associated with a 0.66 lower predicted income percentile for children born to low-income parents (meaning parents at the 25th income percentile or below).
Conclusion
The costs that pretrial detention imposes on individuals and the broader community provide reason to think that the current pretrial system is not economically efficient. Jurisdictions have been experimenting with improvements that have yielded promising results, reducing costs while allowing people to return to their communities and access resources that limit the long-term consequences of arrest. It is vital that we find a better path forward.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.