The Trouble with Time Served

76 Pages Posted: 21 Mar 2022 Last revised: 18 Aug 2023

See all articles by Kimberly Kessler Ferzan

Kimberly Kessler Ferzan

University of Pennsylvania Carey Law School

Date Written: January 31, 2022

Abstract

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions. The bottom line is this: Time served is not a panacea. To the contrary, it contributes to criminal justice pathologies.

This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted. The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds. Time served should be abandoned. Detainees should be financially compensated instead. Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants—both the innocent and the guilty—and can lead to positive reforms. Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.

Keywords: time served, pretrial detention, bail, punishment, criminal law

Suggested Citation

Ferzan, Kimberly Kessler, The Trouble with Time Served (January 31, 2022). Brigham Young University Law Review, Vol. 48, p. 2001, 2023, U of Penn Law School, Public Law Research Paper No. 22-32, Available at SSRN: https://ssrn.com/abstract=4041973 or http://dx.doi.org/10.2139/ssrn.4041973

Kimberly Kessler Ferzan (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

HOME PAGE: http://https://www.law.upenn.edu/cf/faculty/kferzan/

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