GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2005

Status

Accepted

Abstract

This Article shows how the application of a takings paradigm to pretrial detention can mitigate the distorted incentives which shape bail hearings and plea bargaining. The case for compensating pretrial detainees poses challenges because the existence of probable cause of having committed a criminal offense combined with the presence of other risk factors formally legitimizes bail hearing decisions. However, this Article analogizes the taking of people to the taking of property to argue that pretrial detention constitutes a liberty taking which inflicts punishment on unconvicted defendants and creates incentives for false pleas and other perversions of justice. While society faces potential risks and costs from pretrial release, this Article will argue that compensating detainees who are never convicted or whose ultimate conviction could not reasonably have justified the initial detention decision will help to level the playing field for defendants in bail hearings and plea bargaining. This Article will conclude by showing how liberty takings can be designed to produce significant incentives for state actors to screen cases more thoroughly and to rely more extensively on less restrictive alternatives than pretrial detention.

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