Preventive Pre-trial Detention without Punishment

Res Publica 20 (2):111-127 (2014)


The pre-trial detention of individuals charged with crimes is viewed by many legal scholars as problematic. Standard arguments against it are that it constitutes legal punishment of individuals not yet convicted of crimes, violates the presumption of innocence, and rests on dubious predictions of future crime. I defend modified and restrained forms of pre-trial detention. I argue that pre-trial detention could be made very different than imprisonment, should be governed by strict criteria, and is warranted, when the evidence of danger is convincing. I contend that the presumption of innocence does not preclude us from doing many other things to criminal suspects and defendants that imply their guilt. Finally, I dispute arguments designed to show that pre-trial detention can be justified to prevent absconding or interferences with the course of justice, but not to prevent other, and sometimes much more serious, offenses

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References found in this work

Censure and Sanctions.Andrew Von Hirsch - 1996 - Oxford University Press UK.
Censure and Sanctions.Andrew Von Hirsch - 1996 - Law and Philosophy 15 (4):407-415.
Rethinking Imprisonment.Richard L. Lippke - 2007 - Oxford University Press.
Reconciling Bail Law with the Presumption of Innocence.U. Raifeartaigh - 1997 - Oxford Journal of Legal Studies 17 (1):1-21.

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