Pretrial Detention and Moral Agency

Abstract

In this chapter we explore the ethical justifications for criminal detentions prior to adjudication. Because pretrial detentions cannot be justified on purely forward-looking grounds, any plausible justification must be partly backward-looking. Reflecting on the broader aims of the criminal law suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain retributive and instrumental criteria are met. We conclude that while it is possible in principle to justify pretrial detention, there is reason to think that much of the pretrial detention in the United States is not, in fact, justified. We argue that current pretrial detention practices in the United States unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place.