The Effect of Pretrial Detention on Sentencing in Two Federal Districts

Abstract

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.

Keywords:

• pretrial services
• supervision
• detention
• federal courts
• sentencing

Acknowledgement

The authors wish to thank the Laura and John Arnold Foundation for their generous financial support of the study.

Notes

¹ Contemporary federal sentencing was established with passage of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, codified at 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991–998.

² The United States Sentencing Guidelines were struck down as unconstitutional in the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). The Court’s remedy was to construe the Guidelines as advisory rather than mandatory. The Guidelines must still be correctly determined as a starting point in sentencing (Gall v. United States, 552 U.S. 38 (2007)), but district courts can depart from the Guidelines range—upward or downward—based upon the facts of the case.

³ Since 2005, a number of decisions have refined the Court’s holding in Booker and operate as controlling law. For example, in Rita v. United States, 551 U.S. 338 (2007), the Court held that sentences within the Guidelines range are presumptively reasonable. In Gall v. United States, 552 U.S. 38 (2007), however, the Court held that federal appellate courts may not presume as unreasonable sentences lying outside the Guidelines range. Rather, the courts of appeals must review lower decisions under an abuse-of-discretion standard. In Kimbrough v. United States, 552 U.S. 85 (2007), a case related to the sentencing disparity between crack and powder cocaine, the Court held that judges can reject the policies of the United States Sentencing Commission and impose reasonable sentences outside of the Guidelines range.

⁴ The 2012 Sentencing Guidelines Manual explains, “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines” (US Sentencing Commission, 2012: § 5K1.1). While a § 5K1.1 departure can be granted by the court only upon motion of the prosecutor, some post-Booker courts have imposed a non-Guideline sentence under § 3553(a)(2)(C) to acknowledge a defendant’s cooperation, even when a § 5K1.1 motion is not filed by the government. See, e.g. U.S. v. Fernandez, 443 F.3d 19 (2d Cir. 2006).

⁵ All data came from post-Booker cases.

⁶ Findings for the tri-level models are available upon request from the second author.

⁷ Assuming PTS is not revoked but holding all other effects in the model constant, a seven-month increase in sentence length can be expected (1.794³). Assuming PTS is revoked, an increase of 21 months can be expected (2.774³), for a net 16-month differential, or increase, when PTS is revoked.

Additional information

Notes on contributors

J.C. Oleson

James C. Oleson earned his PhD in Criminology from Cambridge University in 1998 and his JD from UC Berkeley in 2001. After his term as a 2004–2005 US Supreme Court fellow, he served as chief counsel to the Criminal Law Policy Staff of the US Courts until 2010. Today, he is a senior lecturer in Criminology at the University of Auckland. He is interested in high IQ crime, evidence-based corrections, sentencing, and punishment.

Christopher T. Lowenkamp

Christopher T. Lowenkamp received his PhD in Criminal Justice from the University of Cincinnati. He served as the director of the Center for Criminal Justice Research and as an associate director of The Corrections Institute at the University of Cincinnati. He also held the positions of research associate and research professor at the University of Cincinnati. Lowenkamp served as a probation officer and jail emergency release coordinator in Summit County Ohio and as a probation administrator with the Office of US Probation and Pretrial Services. He is currently a lecturer at the University of Missouri-Kansas City and a consultant. Lowenkamp has co-authored over 65 articles and book chapters some of which are published in top-tier academic journals.

Timothy P. Cadigan

Timothy P. Cadigan served as the data analysis branch chief in the Office of Probation and Pretrial Services at the Administrative Office of the United States Courts. He earned his BA from Keane College in 1983 and his MA from Rutgers University in 1986. After serving as a United States pretrial services officer in the District of New Jersey from 1988 to 1990, he worked in federal pretrial services at the Administrative Office of the United States Courts.

Marie VanNostrand

Marie VanNostrand is a project manager with Luminosity, Inc., a criminal justice consulting firm specializing in the pretrial stage of the criminal justice system. A nationally recognized expert in pretrial services, risk assessment, alternatives to detention and jail population management, VanNostrand is the pioneer of multijurisdictional pretrial risk assessment and the field of Pretrial Services Legal and Evidence-Based Practices. She earned her Bachelor of Science degree in Criminal Justice from Syracuse University, Masters Degrees in Public Administration and Urban Studies, and a PhD in Public Policy from Old Dominion University.

John Wooldredge

John Wooldredge is a professor in the School of Criminal Justice at the University of Cincinnati. His research and publications focus on institutional corrections (crowding, inmate violence, and inmate adaptation), and criminal case processing (sentencing and recidivism, and extra-legal disparities in case processing and outcomes). He is currently involved in research on judicial effects on sentencing, and official responses to prison inmate rule violations.