Unnecessary Incarceration

Abstract

Every pretrial detainee is presumed innocent. Despite this presumption, an individual accused of a crime may be detained prior to trial. If the accused is subsequently acquitted or the charges against her are dropped during her pretrial detention, then she has no recourse against the government for the time and liberty of which she was deprived. Without any hard consequences for unnecessarily incarcerating the accused, our criminal legal system operates without any meaningful checks at the pretrial stage.

One potentially powerful check would be monetary pretrial compensation. Unfortunately, pretrial compensation for unnecessary incarceration has not gained much traction in the United States for a number of deeply ingrained institutional reasons. This Article critically analyzes those reasons and sets forth a path forward to make pretrial compensation a reality.

Keywords: pretrial incarceration, pretrial detention, mass incarceration, plea bargaining, procedural due process, compensation