Availability of Detention With Due Process

detention header

What Is Preventive Pretrial Detention?

Preventive pretrial detention is a tool that can courts can use to detain certain people accused of crime until their cases are resolved.

Research and experience show that most people who come into contact with law enforcement can be safely released to the community before trial with either a reminder to appear in court or minimal supervision. In some jurisdictions, however, courts may choose to preventively detain a small number of people for whom no release conditions can reasonably assure public safety and appearance in court. Consistent with the Supreme Court’s ruling that “In our society... detention prior to trial or without trial is the carefully limited exception,” a person should meet eligibility criteria specified by the law to be considered for preventive pretrial detention.

How Does Preventive Pretrial Detention Work?

Ideally, only people charged with certain violent or very serious offenses should be eligible for preventive detention, and the decision-making process should follow specific, transparent steps, also known as “due process.” When an arrested person meets the eligibility criteria, the prosecutor may request a detention hearing where the detention-eligible person is represented by defense counsel and has a right to question any witnesses. Before entering a detention order, the court should find clear and convincing evidence that the person poses an extremely high risk of danger to the community or of flight to avoid prosecution and that no condition or combination of conditions can provide reasonable assurance of safety or appearance. Best practices would have the court consider a validated, actuarial pretrial risk assessment score as a factor in making its decision.

If a court chooses to detain, it should ensure that the person is tried in a timely manner. Also, pretrial detention orders should be reviewed whenever there is a significant change in a case, such as lowered charges.

Can’t People be Detained Before Trial Now?

Most states guarantee arrested people a path to pretrial release, with exemptions for only a handful of specific offenses, such as capital cases, or specific circumstances, such as the person was on probation or parole for a previous felony. In practice, however, most people currently detained before trial are in jail only because they cannot afford the money bail amount assigned by the court as condition of their release. Although commonplace, the practice of setting a money bail amount that a defendant cannot afford may be unconstitutional. It’s also unreliable: Research shows that nearly half of the highest-risk individuals are able to pay the money bail amount and go home before trial.

Limits on Preventive Detention

Legal and procedural protections—clear and justified eligibility criteria, access to defense counsel during detention hearings, and reconsideration of detention orders when needed, for example—along with transparent decision-making and data collection and analysis, should be in place to ensure that judges detain only the highest-risk individuals who are charged with detention-eligible offenses.

In 2014 New Jersey voters approved an amendment to the state constitution that authorized the use of preventive pretrial detention starting in January 2017. The first six months under the new system saw 12.4% of arrested individuals detained without the opportunity for release and courts approving 55% of detention orders requested by prosecutors. Similarly, Washington, DC, also allows for limited pretrial detention and detains only about 9% of arrested individuals.


American Bar Association on Pretrial Release, 3rd Edition (10.5.8-10.5.10)

2012 District of Columbia Code: Section 23-1321

Pretrial Justice Center for Courts: Preventive Detention