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87 Fed. Probation 3 (2023)

handle is hein.journals/fedpro87 and id is 1 raw text is: June 2023 3 Alexander M. Holsinger University of Missouri-Kansas City Christopher T. Lowenkamp University of Missouri-Kansas City Probation and Pretrial Services Office Administrative Office of the U.S. Courts Travis C. Pratt University of Cincinnati Harris County Community Supervision and Corrections Department ANY TIME A PERSON is arrested and accused of committing a crime, a decision has to be made during this pretrial stage about whether the individual facing charges is going to be released directly back into the community right away or is instead detained in jail to await the next stage of case process- ing (McIntyre & Baradaran, 2013; Oleson et al., 2016; Sacks, Sainato, & Ackerman, 2015). This decision is not, however, a strictly either-or proposition (Martinez, Petersen, & Omori, 2020). Some defendants, for instance, are incarcerated during the pretrial stage for a long time, some not at all, while others only spend a few days incarcerated before being released (Kim et al., 2018; Lowenkamp, Van Nostrand, & Holsinger, 2013; Sacks & Ackerman, 2014). How this decision is handled is critical, because pretrial detention carries serious con- sequences downstream in the justice process (Martinez, Petersen, & Omori, 200). To be sure, research indicates that being incarcerated prior to trial is associated with an increased likelihood of being convicted (Menefee, 2018; Petersen, 2020), of being sentenced to prison (and for a longer period of time) (Donnelly & MacDonald, 2018; Williams, 2003), and even of finding it harder to find a job later (Dobbie, Goldin, & Yang, 2018; Wakefield & Anderson, 2020). It is therefore inevitable that the deci- sion to detain someone in jail before trial-or to let them stay out on their own recogni- zance-is based on a complex set of factors (Dobbie, Goldin, & Yang, 2018; Viljoen et al., 2019). Concerns about community safety, the constitutional rights of justice-involved per- sons, and the need for individuals to appear in court all play an important role (Leslie & Pope, 2017; Oleson et al., 2016). But when judges decide to detain someone for a stint of incarceration prior to their trial, the primary legal justification that is often invoked is rooted in the language of deter- rence (D'Alessio & Stolzenberg, 1998; Pyrooz, Gartner, & Smith, 2017; Walker & Herting, 2020). To be sure, those who favor locking people up prior to their trial typically assume that pretrial detention causes those facing charges to think twice about failing to show up at court or committing a new crime later on, because they want to avoid being incarcer- ated again (Raaijmakers et al., 2017). Such a position is consistent with the long-standing belief in American jurisprudence-at least among some-that incarceration works as an effective deterrent (see, e.g., the discus- sion by Pratt, 2019). So if this is actually the case, there may be a benefit to the practice of pretrial detention with respect to public safety. We do, however, have good reason to believe that the deterrent power of incar- ceration has been grossly exaggerated. Indeed, stacks of criminological literature indicate that the threat of stiffer sanctions does little to deter people from committing crimes (Apel, 2013; Pratt & Cullen, 2005; Pratt et al., 2006); that trying to lock people up more quickly in an effort to satisfy the swiftness element of deterrence-the key marketing strategy for the popular-yet-empirically-unsupported swift-certain-fair model of punishment- fares no better (Cullen, Pratt, & Turanovic, 2016; Cullen et al., 2018; Pratt & Turanovic, 2018); and that locking up lower risk people may actually end up doing more harm than good when it comes to recidivism (Ogle & Turanovic, 2019). In the most recent com- prehensive assessment of this idea, Petrich et al.'s (2021) meta-analysis of over 100 studies on the effects of custodial versus community sanctions indicated that incarceration actu- ally makes things worse for justice-involved individuals-a finding that highlights not only the compromising of public safety when incarceration is used as a general crime- control strategy, but also the additional cost June 2023 3

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