Criminal Charging

Posted: 21 Mar 2016 Last revised: 14 Mar 2022

See all articles by Pamela R. Metzger

Pamela R. Metzger

Southern Methodist University - Dedman School of Law

Janet C. Hoeffel

Tulane University - Law School

Date Written: March 19, 2016


This is one in a series of four articles addressing due process rights in early post-arrest criminal procedure.

Across the United States, hundreds of thousands of uncharged defendants sit behind bars without formal charges having been filed against them. This wholesale detention of uncharged criminal suspects is a “recurring part of the state sanctioned prosecutorial system.” This pre-charge detention is based solely the unchallenged allegations of a law enforcement officer. Only when a prosecutor “screens” the case formalizing or dismissing the charges, can the accused begin to defend himself or return to his pre-incarceration life.

How are these lengthy uncharged detentions possible? The answer lies in the Supreme Court’s wholesale failure to regulate pre-charge criminal process. The United States Supreme Court provides more procedural protection against the wrongful “custody of a refrigerator, . . . temporary suspension of a public school student, or . . . suspension of a driver’s license,” than it does against the incarceration of an uncharged, presumptively innocent person. Uncharged pretrial defendants have no constitutional right to a prompt decision about whether the prosecution will charge them; no constitutional right to the assistance of counsel at bail proceedings; no constitutional right to investigation, discovery, or Brady material; and no constitutional right to an adversarial judicial review of the evidence used to restrain their liberty.

Uncharged detainees have little, if any, due process, recourse against their Kafkaesque plight. In other contexts, the United States Supreme Court relies on the Due Process Clause to forbid, or to closely regulate, the state’s ability to incarcerate innocent people. Yet, the Supreme Court has adopted a restrictive approach to criminal due process; that approach deprives uncharged defendants of any meaningful protection against their long detention.

Because the Supreme Court has applied radically different Due Process standards to criminal and civil proceedings, uncharged – and often unrepresented detainees – must rely upon the ineffectual Speedy Trial Clause, the under-enforced Eighth Amendment, and the dubious good graces of state prosecutors, to prevent their prolonged incarceration without prosecution. This reliance has proved a dismal failure.

This Article explores and critiques this appalling state of affairs. Part I describes the plight of uncharged, incarcerated, criminal detainees. Part II makes the Article’s central claim: that unregulated detention-without-charges violates substantive and procedural due process. Part III makes the case for a unified approach to substantive and procedural due process. The Article concludes with some observations about the systemic impacts of a due process approach to pre-charge criminal process.

Keywords: Substantive Due Process, Due Process, Detention, Pretrial Detention, Charging Process, Mass Incarceration, Procedural Due Process

Suggested Citation

Metzger, Pamela R. and Hoeffel, Janet C., Criminal Charging (March 19, 2016). Available at SSRN:

Pamela R. Metzger (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Janet C. Hoeffel

Tulane University - Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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