Unnecessary Incarceration

64 Pages Posted: 28 Nov 2020

See all articles by Zina Makar

Zina Makar

Georgetown University Law Center

Date Written: April 15, 2020


Every pretrial detainee is presumed innocent. Despite this presumption, an individual accused of a crime may be detained prior to trial. If the accused is subsequently acquitted or the charges against her are dropped during her pretrial detention, then she has no recourse against the government for the time and liberty of which she was deprived. Without any hard consequences for unnecessarily incarcerating the accused, our criminal legal system operates without any meaningful checks at the pretrial stage.

One potentially powerful check would be monetary pretrial compensation. Unfortunately, pretrial compensation for unnecessary incarceration has not gained much traction in the United States for a number of deeply ingrained institutional reasons. This Article critically analyzes those reasons and sets forth a path forward to make pretrial compensation a reality.

Keywords: pretrial incarceration, pretrial detention, mass incarceration, plea bargaining, procedural due process, compensation

Suggested Citation

Makar, Zina, Unnecessary Incarceration (April 15, 2020). Oregon Law Review, Vol. 98, No. 607, 2020, Available at SSRN: https://ssrn.com/abstract=3710892

Zina Makar (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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