Pretrial Detention

Many pretrial detainees are incarcerated solely as a result of their poverty and their consequent inability to post bail.

Non-punitive detention operates in a separate constitutional realm than post-conviction imprisonment. Claims brought by those who are convicted of crimes arise under the Cruel and Unusual Punishments Clause of the Eighth Amendment, whereas such claims brought by immigration or pretrial detainees arise under the Due Process Clause of the Fourteenth or Fifth Amendments. These different constitutional sources entail different constitutional tests: while the state cannot inflict cruel and unusual punishment on prisoners, non-punitive detainees cannot be punished at all.

For cases on behalf of medically vulnerable pretrial and civil immigration detainees seeking release from facilities during the COVID-19 pandemic, it is imperative that the courts adopt and use the correct standard. Applying the more stringent Eighth Amendment standard to these cases would be tantamount to a death sentence without trial. Through our amicus and merits briefings, we argue that the correct standard to evaluate the detainees' claims would be whether continued detention of medically vulnerable detainees during the pandemic constitutes punishment. Barring the adoption of such a standard, we argue that the court should adopt the objective deliberate indifference standard required by the Supreme Court after Kingsley v. Hendrickson. 

Our Pretrial Detention Cases