Pretrial Detention

Pretrial Detention in the United States

Holding an accused in custody prior to adjudication of guilt. Pretrial detention may result from the inability of the accused to meet release conditions. For example, an accused may not be able to secure the money necessary to be released on bond. Pretrial detention may also occur because a judicial officer determines that the accused presents too great a risk of fleeing from the jurisdiction. It may also be determined that an accused represents a substantial threat to the security of a community. In such cases, an accused may be detained pending trial to prevent him or her from engaging in additional criminal conduct. Denial of release on this basis is called preventive detention. The decision to detain an accused before trial is a judicial determination usually made at the arraignment. Although this judgment may be altered later, it typically remains intact throughout the pretrial period.

See Also

Arraignment (Criminal Process) Pretrial Relese (Criminal Process).

Analysis and Relevance

Pretrial detention is not compatible with the presumption of innocence. Further, some persons are detained before trial only because they do not have the economic resources to meet release conditions. There are other negative consequences to detention as opposed to release. Aside from the matter of freedom, detained persons cannot maintain family contact as easily nor can they retain jobs. The latter often makes probation less probable if they are eventually convicted. Persons detained before trial also consume much of the available space in local detention facilities. Nonetheless, there are many who advocate pretrial detention as a way of combating crime. The Supreme Court has held preventive detention to be constitutional in two important cases. In Salerno v. United States (481 U.S. 739: 1987), the Court upheld provisions of the Bail Reform Act of 1984, saying that detention following a hearing does not constitute punishment. Rather, the Court saw the method as a legitimate response to the problem of crimes committed by those already on some form of release. Preventive detention for juveniles was also upheld by the Court in Schall v. Martin (467 U.S. 253: 1984).

Notes and References

  1. Definition of Pretrial Detention from the American Law Dictionary, 1991, California

Pretrial Detention and Supervision in the Criminal Justice System

Pretrial Detention: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Pretrial Detention. This part provides references, in relation to Pretrial Detention, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Pretrial Detention by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Pretrial Detention and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Pretrial Detention or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Pretrial Detention and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Pretrial Detention. Finding these decisions can be challenging. In many cases, researchers about Pretrial Detention should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Pretrial Detention when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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