Jail as Injunction
Georgetown Law Journal, Vol. 107, 2019 Wake Forest Univ. Legal Studies Paper
This article discusses the impact that pretrial detention can have on a defendant and their family. The argument here is that the defendant’s family should be considered when determining bail.
Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; detention makes defendants more likely to commit a crime and can harm them mentally and physically; it takes a toll on their families and communities too. Courts simply ignore these serious harms when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. In striking contrast to criminal cases where the government so often succeeds in obtaining before trial the relief that it ultimately seeks—incarceration of the defendant—civil plaintiffs attempting to obtain before judgment the relief that they ultimately seek—by way of a preliminary injunction—face quite a challenge.