The last several years have seen a marked rise in state and federal pretrial
detention rates. There has been very little scholarly analysis of whether
increased detention is reducing crime, and the discussion that has taken place
has largely relied on small-scale local studies with conflicting results. This
Article asks whether the United States is making substantially mistaken
judgments about who is likely to commit crimes while on pretrial release and
whether we are detaining the right people. Relying on the largest dataset of
pretrial defendants in the United States, this Article determines what factors, if
any, are relevant to predicting “dangerousness” pretrial and what percentage of
defendants can be released safely before trial. Prior work in this area disagrees
as to whether the current charge or past convictions are relevant predictors of
future crimes, whether flight risk is linked to pretrial violence, and whether
judges can accurately predict which defendants are dangerous. This Article—
for the first time—relies on empirical methods and a nationally representative
fifteen-year dataset of over 100,000 defendants to determine what factors are
reliable predictors of who will commit pretrial crime. This analysis suggests two
important conclusions: First, judges often detain the wrong people. Judges often
overhold older defendants, defendants with clean records, and defendants
charged with fraud and public-order offenses. Second, using our model, judges
would be able to release 25% more defendants while decreasing both violent
crime and total pretrial crime rates.