The Immediate Consequences of Federal Pretrial Detention
American Law and Economics Review (Forthcoming, 2020)
61 Pages Posted: 1 Aug 2016 Last revised: 27 Feb 2020
Date Written: August 15, 2019
Unlike the cash-bail regimes that are prevalent in state courts, federal courts rarely use money bail as a condition of pretrial release. Nonetheless, this article presents evidence that pretrial release influences case outcomes for federal defendants. Using case data spanning 71 federal district courts, the article suggests that pretrial release reduces a defendant’s sentence and increases the probability that they will receive a sentence below the recommended sentencing range. Pretrial release also appears to lessen the probability that a defendant will receive a mandatory minimum sentence when one is charged. The analysis exploits variation in magistrate judges’ propensities to release defendants pending trial, which allows magistrate judge leniency to serve as an instrumental variable for pretrial release. The article also provides suggestive evidence that pretrial release affects case outcomes through two channels: first, by giving defendants the opportunity to present mitigating evidence at sentencing and second, by making it easier for defendants to earn a sentencing reduction by providing assistance to the government.
Keywords: detention, bail, bond, pretrial, incarceration, sentencing, instrumental variable
JEL Classification: K14, K42
Suggested Citation: Suggested Citation