Friday, November 2, 2018

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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