Does Pretrial Detention Reduce or Increase Crime?

Two interesting papers came across my desk. First, The Economics of Rights: Does the Right to Counsel Increase Crime? by Ater, Givati and Rigbi:

We examine the broad consequences of the right to counsel by exploiting a legal reform in Israel that extended the right to publicly provided legal counsel to suspects in arrest proceedings. Using the staggered regional rollout of the reform, we find that the reform reduced arrest duration and the likelihood of arrestees being charged. We also find that the reform reduced the number of arrests made by the police. Lastly, we find that the reform increased crime. These findings indicate that the right to counsel improves suspects’ situation, but discourages the police from making arrests, which results in higher crime.

In other words, the right to counsel makes it easier for criminals to escape justice and since the price of crime falls the quantity of crime increases. Makes sense!

The second paper The Downstream Consequences of Misdemeanor Pretrial Detention is by Heaton, Mayson and Stevenson:

This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.

In other words, when you lock people up before trial they lose their jobs and are more likely to get a record so pretrial detention severs attachments to civil life and increases attachments to criminal life with the end result being increased crime. Makes sense!

What’s frustrating is that both of these papers are good–they have a plausible theory and sound research design–yet they reach opposite conclusions! To be sure, the time periods, places, people and exact experiment are different so both papers could be true. From the policy maker’s perspective, however, the fact that both papers could be true only adds to the difficulty of using academic evidence to make policy.