The Conditions of Pretrial Detention

72 Pages Posted: 7 Sep 2012 Last revised: 7 May 2013

See all articles by Catherine T. Struve

Catherine T. Struve

University of Pennsylvania Law School

Date Written: March 2013


The Supreme Court has set forth in detail the standards that govern convicted prisoners’ Eighth Amendment claims concerning their conditions of confinement, but has left undefined the standards for comparable claims by pretrial detainees. The law in the lower courts is unclear and inconsistent, but shows a trend toward assimilating pretrial detainees’ claims to those of convicted prisoners. Based on a review of Supreme Court caselaw concerning related questions, this Article argues that, for claims arising after a judicial determination of probable cause, the tests prevailing in the lower courts should be replaced by a substantive Due Process framework that requires a plaintiff to show, at most, either punitive intent or objective deliberate indifference on the part of the defendant. For claims arising after a warrantless arrest and before a judicial determination of probable cause, the Fourth Amendment’s objective reasonableness standard should govern; moreover, the Article notes a strong argument that this objective reasonableness standard should govern prior to arraignment, even when the arrest took place upon a warrant.

Suggested Citation

Struve, Catherine T., The Conditions of Pretrial Detention (March 2013). University of Pennsylvania Law Review, Vol. 161, Pg. 1009, 2013., U of Penn Law School, Public Law Research Paper No. 12-38, Available at SSRN:

Catherine T. Struve (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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