Abstract
In the United States, a marked preference for carceral responses to
social ills has fueled incarceration rates that vastly exceed those of almost
every other nation.1 The U.S. justice system2 is a collection of multiple law
enforcement, judicial, and corrections systems independently run by states,
tribes, and the federal government, under each jurisdiction’s laws. In addition, many local municipal governments in the U.S., such as cities and
counties, operate their own justice systems. Other entities in the U.S., like
the branches of the armed services, also maintain independent justice systems. What these various governmental units and entities have in common
is that they all have the power to incarcerate two categories of people: defendants awaiting trial (pretrial detainees—the focus of this Article), and
defendants convicted of offenses. These two populations—pretrial detainees and convicted offenders—are distinct in the eyes of the law. Pretrial
detainees cannot be incarcerated as punishment. Rather, the detaining authority must have a regulatory, non-punitive justification for their detention.3 In the U.S., pretrial detainees may be incarcerated in stationhouses,
jails, or detention centers. If a detention facility also houses convicted offenders (as many jails do), pretrial detainees are supposed to be housed
separately from convicted offenders.4 In contrast, convicted offenders have
been adjudicated guilty of a crime and can be incarcerated as punishment
for that crime, or for violating a condition related to a sentence for an underlying offense. In the U.S., convicted offenders are housed either in jails
or prisons, depending on the seriousness of their offenses. Defendants who
receive a felony-length sentence are typically placed in the custody of a
department of corrections and sent to a facility designed for long-term inarceration.
Offenders convicted of misdemeanor-length sentences are typically incarcerated in a state or local jail, or other short-term detention facility.