Volume 107

Jail as Injunction

by Russell M. Gold

Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; detention makes defendants more likely to commit a crime and can harm them mentally and physically; it takes a toll on defendants’ families and communities too. Courts simply ignore these serious harms when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. Yet in striking contrast to criminal cases, where the government so often succeeds in obtaining before trial the relief that it ultimately seeks—incarceration of the defendant—civil plaintiffs attempting to obtain before judgment the relief that they ultimately seek—by way of a preliminary injunction—face quite a challenge. Civil plaintiffs cannot obtain such prejudgment relief unless they demonstrate likelihood of irreparable injury and that denying interim relief would be more harmful to them than granting such relief would be to the defendant. This disparity between criminal pretrial detention and civil preliminary injunctions is both troubling and illuminating. It is troubling that the law affords more protection to the property interests of civil defendants than to the liberty interests of criminal defendants who are purportedly presumed innocent. But in this historical moment where pretrial detention and bail systems are changing in many jurisdictions, the preliminary injunction comparison offers a valuable lens through which to reconceptualize pre-trial detention.

A more civil-like approach to pretrial detention would raise the threshold of government interest necessary to justify detaining an accused—not some minimal likelihood that the defendant might forget to appear in court or be accused of some minor crime such as jaywalking. As in the civil system, criminal courts should not simply ignore the immense costs to a defendant of ordering pretrial detention. Rather, courts should consider those costs to defendants, their loved ones, and the broader public and should detain defendants only when the benefits outweigh those substantial costs. Finally, to detain a defendant, courts should require that the government demonstrate likelihood of success on the merits through evidence subject to the defendant’s refutation. Such additional process would increase costs on the front end but would potentially lower the pretrial process costs overall by reducing rates of pretrial detention, post-trial incarceration, and recidivism caused by criminogenic jails and prisons.

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