Charging Time

58 Pages Posted: 15 Mar 2022 Last revised: 31 May 2023

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


On the verge of his 1,000th day in an El Paso, Texas jail, Robert Antonio Castillo was still waiting for a prosecutor to formally charge him with a crime. Mr. Castillo is one of thousands of people across the country who are 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 legal scholarship about the necessity of an extended time period between arrest and formal charging by information or indictment. Many states give prosecutors extended or indefinite time periods to file indictments and informations, and prosecutors appear to take that time. 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.

Prosecutors’ crushing caseloads, police officers’ shoddy and inadequate investigative work, 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 jeopardizes their lives, health, jobs, and case outcomes. Yet the constitutional protections granted to criminal defendants provide no remedy for this uncharged detention. After exposing this disturbing state of affairs, we offer practical, subconstitutional solutions to minimize needless delay in prosecutors’ formal charging decisions.

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. 1723 (2023), SMU Dedman School of Law Legal Studies Research Paper No. 536, Tulane Public Law Research Paper No. 23-3, 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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