Charging Time

Abstract

On the verge of his 1,000th day in an El Paso, Texas jail, Robert Antonio Castillo was still waiting for a prosecutor to formally charge him with a crime. Mr. Castillo is one of thousands of people across the country who are arrested and jailed for weeks, months, and even years without charges. In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them. Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame, and distress. Yet this violates no laws; it circumvents no constitutional protections.

To date, there has been legal scholarship about the necessity of an extended time period between arrest and formal charging by information or indictment. Many states give prosecutors extended or indefinite time periods to file indictments and informations, and prosecutors appear to take that time. Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss. In this Article, we explore the equities at stake and the realities at play in this dark period.

Prosecutors’ crushing caseloads, police officers’ shoddy and inadequate investigative work, and a lack of training or written policies on charging contribute to the delay. From the detained defendants’ perspective, the consequences of delayed charging are steep. Extended time in jail jeopardizes their lives, health, jobs, and case outcomes. Yet the constitutional protections granted to criminal defendants provide no remedy for this uncharged detention. After exposing this disturbing state of affairs, we offer practical, subconstitutional solutions to minimize needless delay in prosecutors’ formal charging decisions.

Keywords: Substantive Due Process, Due Process, Detention, Pretrial Detention, Charging Process, Mass Incarceration, Procedural Due Process