Jail as Injunction

62 Pages Posted: 13 Sep 2018 Last revised: 30 Oct 2018

See all articles by Russell M. Gold

Russell M. Gold

Wake Forest University - School of Law

Date Written: October 29, 2018


Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; detention makes defendants more likely to commit a crime and can harm them mentally and physically; it takes a toll on their families and communities too. Courts simply ignore these serious harms when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. In striking contrast to criminal cases where the government so often succeeds in obtaining before trial the relief that it ultimately seeks—incarceration of the defendant—civil plaintiffs attempting to obtain before judgment the relief that they ultimately seek—by way of a preliminary injunction—face quite a challenge. Civil plaintiffs cannot obtain such pre-judgment relief unless they demonstrate irreparable injury and that denying interim relief would be more harmful to them than granting would be to the defendant. This disparity between criminal pretrial detention and civil preliminary injunctions is both troubling and enlightening. It is troubling that the law affords more protection to the property interests of civil defendants than to the liberty interests of criminal defendants who are purportedly presumed innocent. But in this historical moment where pretrial detention and bail systems are changing in many jurisdictions, the preliminary injunction comparison offers a valuable lens through which to reconceptualize pretrial detention.

A more civil-like approach to pretrial detention would raise the threshold of government interest necessary to justify detaining an accused to something akin to irreparable injury—not some minimal likelihood that the defendant might forget to appear in court or be accused of jaywalking. As in the civil system, criminal courts should not simply ignore the immense costs to a defendant of ordering pretrial detention. Rather, courts should consider those costs to defendants, their loved ones, and the broader public and detain defendants only when the benefits outweigh those substantial costs. Finally, to detain a defendant, courts should require that the government demonstrate likelihood of success on the merits through evidence subject to the defendant’s refutation. Such additional process would increase process costs on the front end but would potentially lower the pretrial process costs overall by reducing rates of pretrial detention, post-trial incarceration, and recidivism caused by criminogenic jails and prisons.

Keywords: bail, pretrial detention, criminal law, criminal procedure, remedies, civil procedure, preliminary injunction

Suggested Citation

Gold, Russell M., Jail as Injunction (October 29, 2018). Georgetown Law Journal, Vol. 107, 2019; Wake Forest Univ. Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=3241408

Russell M. Gold (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-3944 (Phone)

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