Pretrial Detention: A Case Study

Abstract This chapter explores the justification of pretrial detention as a case study in incapacitation of agents who are fully accountable. Section 18.1 provides an overview of the issues. Section 18.2 explores three types of non-parity cases: cases in which pretrial detention can be justified differently for defendants than for other people. These are: having a criminal record that forfeited the presumption of law abidingness; having demonstrated a clear intention to undermine their trial; and seeking a trial, admitting that they have committed a serious crime, on the basis of which they expect to be incapacitated, but contesting just how serious it is. Section 18.3 explores parity cases, in which the government is simply concerned that the defendant will violate the law pretrial. Its central point is that compensation is called for in such cases. It also examines and rejects a range of objections to the use of time served as compensation. Section 18.4 explores “hypothetical forfeiture.” The hypothesis at issue is that the person is guilty of the crime charged. If so, he should be taken to have forfeited the presumption of law abidingness in the pretrial period. That hypothesis is tested by the trial itself.