Publication Date



American criminal law vastly overuses pretrial detention even as it purports to presume defendants innocent. This Article compares financial incentives in pretrial detention to those in civil preliminary injunctions. Both are procedures where one of the parties seeks relief before judgment. And yet, these two procedures employ financial incentives in opposite ways. Civil procedure discourages interim relief by requiring plaintiffi to bear financial risk when they obtain a preliminary injunction. Criminal law does the opposite-encouraging interim relief by requiring defendants to pay to avoid pretrial detention. The reasons that civil procedure relies on financial incentives to discourage requests for interim relief-to avoid undue settlement pressure and compensate for losses inflicted on defendants because of hasty procedure-apply with at least as much force in criminal law. Thus, this Article contends that employing diametrically opposed approaches to interim relief in the two systems is not justifiable.

This disparity is troubling because it better protects the property rights of the wealthy over the liberty rights of the poor. Perhaps this troubling disparity should not be altogether surprising, however, because it embodies well-recognized pathologies in criminal law. The incentive disparity is one more way in which criminal law allows prosecutors not to bear the full costs of their decisions and averts the budget discipline that could constrain prosecutors-a variant of the "correctional free lunch." This Article brings together several different strands of criminal law literature under the correctional free lunch umbrella while adding the financial incentive disparity regarding interim relief as yet one more correctional free lunch. Lastly, the comparative lens provides further support for widespread concern that criminal law is racist and classist because the financial incentive disparity tracks predictable disparities in race, wealth, and power between the civil and criminal systems.

Included in

Law Commons