Charging Time

64 Pages Posted: 15 Mar 2022 Last revised: 1 Apr 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: 2022


William Haymon's 16th birthday was also his 511th day in a Mississippi jail, but no prosecutor had formally charged him with a crime. William is one of thousands of people across the country arrested and jailed for weeks, months, and even years without charges. In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them. Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame and distress. Yet this violates no laws; it circumvents no constitutional protections.

To date, there has been no study of the necessity of the extended time period between arrest and charging. Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss. In this Article, we explore the equities at stake and the realities at play in this dark period. State statutes give prosecutors extended or indefinite time periods to make the formal charging decision and prosecutors appear to take that time.

A recent original study reveals that prosecutors’ crushing caseloads, shoddy and inadequate investigative work by police officers, and a lack of training or written policies on charging contribute to the delay. From the detained defendants’ perspective, the consequences of delayed charging are steep. Extended time in jail risks lives, health, jobs and case outcomes, but neither constitutional protections nor statutory provisions provide adequate remedies for charging delays. After exposing this disturbing state of affairs, we offer practical, sub-constitutional solutions to minimize needless delay in the charging decisions of prosecutors across the country.

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., Charging Time (2022). 108 Iowa L. Rev. __ (Forthcoming), SMU Dedman School of Law Legal Studies Research Paper No. 536, 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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