Displacing Due Process

50 Pages Posted: 30 Apr 2018 Last revised: 16 Oct 2018

Date Written: 2017


Pre-trial detention is a major driver of mass incarceration in the United States. While over 11 million people are admitted to jails annually, only a small portion – approximately 570,000 – are given long-term prison sentences. Seventy percent of jail inmates are pre-trial detainees who were denied bail or given a bail that they could not afford. Although the unconvicted are legally innocent, millions face unnecessary incarceration and languish in jail.

How is this possible? This Article maintains that the overwhelming rate of “front-end” mass incarceration persists because of the lack of procedural protections at preventive detention hearings. This systemic failing has reduced a vital stage of criminal procedure – where one’s liberty interest is at stake – to a perfunctory formality. As a result, too many defendants are unnecessarily detained while other defendants plead guilty just to escape the punishment of pre-trial incarceration.

Addressing this problem will require the criminal justice system to re-conceptualize its “spectrum of process.” This Article argues that procedural protections have been unjustly reserved for the trial stage based on an unrealistic assumption that a trial will be guaranteed – a phenomenon this Article labels “procedural displacement.” In a pre-trial system dominated by plea bargaining, displacing meaningful process until trial strips defendants of fundamental procedural protections and effectively deprives millions of their liberty. This Article explores the historical justification for procedural displacement and assesses the viability of prospective procedural displacement given the current dynamic of the justice system. This Article argues that prospective procedural displacement should be rejected and sets forth the solutions for state and local governments to adopt.

Keywords: pre-trial detention, mass incarceration

JEL Classification: K4

Suggested Citation

Makar, Zina, Displacing Due Process (2017). DePaul Law Review, Forthcoming; University of Baltimore School of Law Legal Studies Research Paper, No. 2018-11. Available at SSRN: https://ssrn.com/abstract=3099507

Zina Makar (Contact Author)

Pretrial Justice Clinic ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States

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