The Conditions of Pretrial Detention
72 Pages Posted: 7 Sep 2012 Last revised: 7 May 2013
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.
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