"What Will Become of the Innocent?": Pretrial Detention, the Presumption of Innocence, and Punishment Before Trial

Abstract

In this article, I take a sociological approach to the constitutional questions intrinsic to the pretrial incarceration of the unconvicted, focusing on the group of people whose pretrial detentions most directly complicate the Court’s decisions: those people who are detained pretrial and then never convicted of the crimes for which they were held. Notably, despite the ways in which the experiences of these never-convicted people call into question case law regarding individuals receiving the presumption of innocence and due process protections against punishment before trial, this group is absent from contemporary criminological and sociological studies. I begin this article with a brief review of the key Supreme Court cases on the constitutionality of pretrial detention. I then provide an overview of current social science research on pretrial detention and situate this research therein, before describing my data and methods. I then present my findings, along with a discussion.