Pretrial Detention: An Equal System?

Sentencing guidelines are advisory recommendations that help judges determine appropriate sentences based on a person’s criminal history and the severity of the committed offense(s). These guidelines are not strict rules by which judges are required to adhere to when handing down sentences; they purely act as advisory recommendations. Judges are allowed (and in some states encouraged) to sentence outside the guidelines after considering the unique characteristics of each case; these types of sentences are called departures. There are two main types of departures: dispositional departures, when the judge assigns a type of sentence that differs from the recommended sentence (for example, a non-incarceration sentence when the guidelines recommend incarceration), and durational departures, when the length of the sentence is longer (upward durational departure) or shorter (downward durational departure) than the recommended lengths. A judge’s discretion to depart varies based on jurisdiction, but most guidelines allow departures when aggravating or mitigating factors are present, which justify a stricter or more lenient punishment than the guideline accounts for in a typical case.

One area where judges might be subject to sentencing guidelines is with pretrial detention. As the name suggests, pretrial detention is the act of keeping someone in jail before trial. Not all people are detained while awaiting trial – usually the determination requires a consideration of the likelihood the defendant will return for trial (flight risk) and the risk to society if they remain in the community. Options include allowing a person to wait at home on their promise to return for trial (personal recognizance) or with a monetary commitment (bail) to full detainment prior to trial. Detention can be detrimental, as it negatively impacts defendants’ employment, housing, government benefits, and families. In the case of bail, it can also benefit the privileged groups who can afford it more than lower socioeconomic groups.

Concerningly, research suggests that pretrial detention can influence later determinations about responsibility for the accusation. Wrigley and Schumacher (2023) attempted to quantify the effects of pretrial detention on sentencing in their paper “The Effects of Pretrial Detention Length on Sentencing Guideline Departures in Two Pennsylvania Counties.” Specifically, they examined the effects that pretrial detention length has on the likelihood of departures from Pennsylvania’s sentencing guidelines. They also examined how the length of pretrial detention interacts with race to affect the likelihood of those departures. Researchers tested six hypotheses based on the idea that people who spend longer in pretrial detention would receive fewer dispositional and downward departures and more upward departures. Researchers also tested the effect of race, specifically looking at whether Black and Hispanic defendants who spend longer in pretrial detention would receive fewer dispositional and downward departures and more upward departures than White defendants.

The study analyzed 5,734 cases from Pennsylvania in Lehigh and Northampton counties. Pennsylvania is the ideal state to explore and study because it uses standardized measurements for offense severity and criminal history to assess appropriate sentences for misdemeanors and felonies. When the sentencing guidelines recommended incarceration for the crime, judges were more likely to deviate and give non-carceral sentences to defendants who had not been detained pre-trial. This finding was particularly pronounced for Black defendants compared to White defendants (there were no differences for Hispanic defendants). The sentences were also longer for defendants who had been detained longer pre-trial – both because those who had been detained were more likely to have longer sentences than the recommendation, and because those who had not been detained were more likely to have shorter sentences than the recommendation.

Research has shown that pretrial detention leads juries to perceive the defendant as more blameworthy and decreases a defendant’s chances of keeping their jobs, participating in rehabilitation, and demonstrating restitution efforts. This study also shows that pretrial detention negatively affects sentencing outcomes. By finding that a factor such as pretrial detention affects sentencing, it suggests that the American justice system could biased by the socioeconomic status of defendants, allowing those with the means to make bail to rejoin society and denying defendants with less resources the same opportunity. Studying the role of pretrial detention in sentencing outcomes and its departures is essential to understanding the disparities that exist within the system and to stop the criminalization of poverty, and more importantly, finding solutions that are not detrimental to economically vulnerable groups.