Skip to main content

Preventive Pre-trial Detention without Punishment


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.

This is a preview of subscription content, access via your institution.


  1. 1.

    The Justice Policy Institute (2011) has published a factsheet of countries in which pre-trial detention exists and the reasons for which is it permitted.

  2. 2.

    Lippke (2007) offers a critical examination of current forms of imprisonment.

  3. 3.

    In fact, the majority of individuals held in local jails are awaiting final disposition of the charges against them (Baradaran and McIntyre 2011, p. 502).

  4. 4.

    Tribe (1970, p. 374) likens pre-trial detention to the predicament of the King’s messenger in Lewis Carroll’s Through the Looking Glass, who is ‘in prison now, being punished; and the trial doesn’t even begin until next Wednesday…’.

  5. 5.

    See von Hirsch (1993) for the notion that legal punishment’s two main elements are censure and hard treatment.

  6. 6.

    Of course, a few will be entirely innocent victims of such things as misidentification, unjustified police suspicion, or police misconduct.

  7. 7.

    Improved and less stigmatizing pre-trial detention conditions, along with briefer periods of such detention, would make it somewhat easier for those acquitted of all charges against them to resume their lives.

  8. 8.

    I say ‘generally speaking,’ because it is possible to imagine cases in which, though arrested and charged with relatively non-serious crimes, individuals make credible and dire threats against those prepared to testify against them. In such cases, pre-trial detention might be justified on preventive grounds.

  9. 9.

    There is also the problem with individuals charged with multiple offenses, no one of which might be imprisonable, but the aggregate sentence for which might be a term of imprisonment.

  10. 10.

    As Baradaran and McIntyre (2011, p. 535) show, past violent criminal history, along with youthfulness, are significant predictors of further pre-trial crime.

  11. 11.

    In spite of their general antipathy towards the use of pre-trial detention to prevent pre-trial crimes, Miller and Guggenheim (1990, p. 395) do seem to embrace the pre-trial detention (for preventive purposes) of those who have been charged with ‘extremely violent crimes.’

  12. 12.

    See Raifeartaigh (1997), Baradaran (2011) and Duff (2013). However, the authors do not squarely face the problem that the majority of criminal defendants, who are poor, will struggle to offer this assurance. In the event that they cannot do so, they might be remanded to custody, whether they are likely to abscond or pose threats to others in the community. Affluent defendants accused of serious crimes might therefore escape pre-trial detention, while poor ones charged with less serious ones, might not.

  13. 13.

    As Duff (2013, p. 125) admits.

  14. 14.

    Alschuler (1986, p. 550) suggests that the presumption of innocence is most at home in the trial context. Though I would not go this far, it does seem possible to conceive it as operating in different ways in different parts of the criminal justice process.

  15. 15.

    For useful discussion of psychopathy, moral responsibility, and the purposes of the criminal law, see Fine and Kennett (2004).

  16. 16.

    In their recent study, Baradaran and McIntyre (2011, p. 537) attempt to make up for this deficiency in prior studies by contrasting pre-trial crime in jurisdictions which rarely impose pre-trial detention with ones that do so at much higher rates. They conclude that some categories of defendants (especially those who are young and have histories of violent offending) are a substantially greater threat to the community if released.

  17. 17.

    Duff (2013, p. 128) concedes that defendants caught (apparently) absconding or interfering with the course of justice might deny that they were doing anything of the sort. If we detain them it will be for not-yet-proven crimes and so, it seems, in tension with what he claims about the presumption of innocence. Duff suggests that defendants who deny that they were attempting to abscond or interfere with the course of justice should be given quick hearings on these matters in order to resolve the events in dispute. Setting to one side the difficulties such speeded-up hearings might create for defendants who wish to mount full defenses to the allegations against them, the question remains whether such defendants should be detained until the hearings take place. If so, then it is unclear how such detention is consistent with his claim that the presumption of innocence precludes it.

  18. 18.

    Miller and Guggenheim (1990, p. 364) seem uncertain about whether to label such detention as ‘punishment’ or not.


  1. Alschuler, Albert W. 1986. Preventive pretrial detention and the failure of interest-balancing approaches to due process. Michigan Law Review 85: 510–569.

    Article  Google Scholar 

  2. Ashworth, Andrew. 2006. Four threats to the presumption of innocence. International Journal of Evidence and Proof 10: 241–279.

    Article  Google Scholar 

  3. Ashworth, Andrew, and Mike Redmayne. 2010. The criminal process, 4th ed. Oxford: Oxford University Press.

    Google Scholar 

  4. Baradaran, Shima. 2011. Restoring the presumption of innocence. Ohio State Law Journal 72: 723–776.

    Google Scholar 

  5. Baradaran, Shima, and Frank L. McIntyre. 2011. Predicting violence. Texas Law Review 90: 497–570.

    Google Scholar 

  6. Bowers, Josh. 2008. Punishing the innocent. University of Pennsylvania Law Review 156: 1117.

    Google Scholar 

  7. Duff, R.A. 2013. Pre-trial detention and the presumption of innocence. In Prevention and the limits of the criminal law, ed. A. Ashworth, L. Zedner, and P. Tomlin, 115–132. Oxford: Oxford University Press.

    Chapter  Google Scholar 

  8. Fine, Cordelia, and Jeanette Kennett. 2004. Mental impairment, moral understanding and criminal responsibility: Psychopathy and the purposes of punishment. International Journal of Law and Psychiatry 27: 425–443.

    Article  Google Scholar 

  9. Justice Policy Institute. 2011. Factsheet: Pretrial detention and remand to custody.

  10. Kleinig, John. 1998. The hardness of hard treatment. In Fundamentals in sentencing theory, ed. A. Ashworth, and M. Wasik, 273–298. Oxford: Clarendon Press.

    Google Scholar 

  11. Laufer, William S. 1995. The rhetoric of innocence. Washington Law Review 70: 329–421.

    Google Scholar 

  12. Lippke, Richard L. 2007. Rethinking imprisonment. Oxford: Oxford University Press.

    Book  Google Scholar 

  13. Marlow, Kristina. 1997. Prisoners’ rights. Georgetown Law Journal 86: 1953–2010.

    Google Scholar 

  14. Miller, Marc, and Martin Guggenheim. 1990. Pretrial detention and punishment. Minnesota Law Review 75: 335–426.

    Google Scholar 

  15. Morse, Stephen J. 1996. Blame and danger: An essay on preventive detention. Boston University Law Review 76: 113–154.

    Google Scholar 

  16. Raifeartaigh, Una Ni. 1997. Reconciling Bail law with the presumption of innocence. Oxford Journal of Legal Studies 17: 1–21.

    Article  Google Scholar 

  17. Robinson, Paul H. 2001. Punishing dangerousness: Cloaking preventive detention and criminal justice. Harvard Law Review 114: 1429–1456.

    Article  Google Scholar 

  18. Struve, Catherine T. 2013. The conditions of pretrial detention. University of Pennsylvania Law Review 161: 1009–1079.

    Google Scholar 

  19. Tribe, Lawrence H. 1970. An ounce of prevention: Preventive justice in the world of John Mitchell. Virginia Law Review 56: 371–407.

    Article  Google Scholar 

  20. von Hirsch, Andrew. 1993. Censure and sanctions. Oxford: Clarendon Press.

    Google Scholar 

  21. Williams, Marian R. 2003. The effect of pre-trial detention on imprisonment decisions. Criminal Justice Review 28: 299–316.

    Article  Google Scholar 

Download references

Author information



Corresponding author

Correspondence to Richard L. Lippke.

Rights and permissions

Reprints and Permissions

About this article

Cite this article

Lippke, R.L. Preventive Pre-trial Detention without Punishment. Res Publica 20, 111–127 (2014).

Download citation


  • Pre-trial detention
  • Legal punishment
  • Dangerousness