Jail as Injunction
"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. Civil
plaintiffs cannot obtain such pre-judgment relief unless they
demonstrate irreparable injury and that denying interim relief would be
more harmful to them than granting would be to the defendant. This
disparity between criminal pretrial detention and civil preliminary
injunctions is both troubling and enlightening. It is troubling that the
law affords more protection to the property interests of civil
defendants than to the liberty interests of criminal defendants who are
purportedly presumed innocent. But in this historical moment where
pretrial detention and bail systems are changing in many jurisdictions,
the preliminary injunction comparison offers a valuable lens through
which to reconceptualize pretrial detention."
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