I assume that early on in American history, pretrial detention was at some point challenged for its constitutionality. Is that the case?

I have also heard that pretrial detention is illegal as a means of punishment, what case does that standard come from?

2 Answers 2


The eighth amendment, by prohibiting excessive bail, implies that pretrial detention is constitutional in at least some circumstances:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Some may be surprised to learn that this was not at all innovative. There is a virtually identical clause in the English Bill of Rights, a century earlier:

That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.

From this it should be clear that pretrial detention was already widely accepted as necessary in some cases (in fact, it was the norm for centuries), so it is unlikely that anyone thought that the constitution or bill of rights had sought to abolish it.

The assertion that pretrial detention is illegal as a means of punishment follows directly from two principles, namely:

  • That the accused is presumed innocent until proven guilty. It is not appropriate to punish someone whose guilt has not been proven.
  • That the purpose of pretrial detention, in keeping with the presumption of innocence, is not to punish. Rather, it is primarily intended to secure the presence of the accused at trial and to prevent the person from committing more crimes. Wikipedia has more information at its articles on bail and the eighth amendment's excessive bail clause.

Consequently, there is unlikely to be any case in which the constitutionality of pretrial detention, generally, is at issue. Rather, you will find cases in which particular elements of an individual's pretrial detention are alleged to violate some constitutional right, which, in addition to the protections already mentioned, includes the right to a speedy trial.

  • The same provision can be found in Magna Carta.
    – user207421
    Jul 16, 2018 at 22:38
  • @EJP Where? I looked through both the Magna Carta of 1215 and that of 1297 and did not see anything that looked similar.
    – phoog
    Jul 16, 2018 at 22:46
  • 1
    For the most part, the Founders did not consider themselves to be setting forth novel concepts of rights, but protecting traditional rights that the King had abrogated. Jul 16, 2018 at 22:54
  • @Acccumulation I agree. Many people today seem to have lost sight of that, however.
    – phoog
    Jul 16, 2018 at 23:13
  • 2
    @EJP a fine is imposed as a punishment on someone who has been found guilty. That isn't particularly relevant to bail or pre-trial detention.
    – phoog
    Jul 17, 2018 at 2:26


Essentially, habeas corpus is the right of a US citizen to have a judge review the "reason" why the police are detaining you, essentially making it a due process of law. Your rights can be curtailed under Due Process of Law. It should be noted that Habeas Corpus can be suspended under certain circumstances (usually during war or rebellion with legislation from Congress), and there have been times where this has happened (It's one of the less than admirable things Lincoln did during the Civil War).

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