The Argument that Cries Wolfish

Abstract

Mass pretrial incarceration can be understood via the following proposition: The presumption of innocence is dead and the Argument that Cries Wolfish helped kill it. This Essay explains that proposition using original empirical data and back-to-basics doctrinal analysis.

Every day in the United States, hundreds of thousands legal innocent defendants are locked behind bars. Though formally cloaked in the presumption of innocence (POI), this much-lauded principle fails, in pretrial hearing after pretrial hearing, to prevent unconvicted persons from suffering imprisonment. The result is a crisis of mass pretrial incarceration.

The injustice is profound. Original empirical data show how every year thousands of accused persons are routinely jailed for extended periods only to be released after all the charges against them are dropped. Pretrial detention on unprosecuted charges devastates lives and is ultimately unjustified. This Essay’s analysis suggests that such unjustified pretrial incarceration is all too common even though the theoretical presumption that criminal defendants will not be proven guilty appears to be empirically warranted. In sum, the POI is dead when it should be alive.

Doctrinal blame for the POI’s current demise lies with “the argument that cries Wolfish.” This position, most prominently advanced in dicta by Justice Rehnquist in Bell v. Wolfish, maintains that the POI merely restates of the prosecution’s burden of proof at trial and therefore has no relevance to pretrial matters. Though widely accepted, the argument that cries Wolfish is every bit as misguided and dangerous as the fabled boy who cried wolf. To confront the alarming reality of mass pretrial incarceration, the notion that the POI does not apply pretrial must be rejected.

Keywords: mass incarceration, pretrial detention. presumption of innocence, empirical data, doctrinal argument, Bell v. Wolfish, Nelson v. Colorado