The effect of pretrial incarceration on criminal cases

Criminal defendants in Wisconsin and around the country who are denied bail are far more likely to plead guilty or be convicted according to researchers from three leading universities. Their study, which was published in the February 2018 edition of the American Economic Review, looked into the effect pretrial incarceration has on how criminal cases are resolved, and they found that being granted bail or otherwise released before a trial decreases a defendant’s chances of being found guilty by 14 percentage points.

The United States has the world’s largest prison population, and one in five of those behind bars has not been convicted of committing a crime. Most of these individuals find themselves in prison or jail simply because they lack the means necessary to post bail, and the study suggests that economic factors and not guilt or innocence are what often drives these prisoners to enter into plea agreements with prosecutors.

The main reason that defendants who are granted pretrial release are less likely to be convicted is because they are generally more reluctant to enter into negotiated plea arrangements. The researchers found that the granting of bail reduces the likelihood of such agreements being struck by 10.8 percent. According to the study, which was based on tax and administrative court records, defendants typically earned less than $7,000 in the year prior to their arrest and were unable to afford even modest bail.

The U.S. Constitution guarantees all Americans equal protection under the law, but experienced defense attorneys will likely have encountered clients who felt that the entire justice system was stacked against them. While attorneys may suggest accepting a negotiated plea when the evidence against their clients is compelling and conviction seems likely, they could recommend proceeding to trial when prosecutors have weak cases or their clients vigorously assert their innocence.

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