Hour Late on Your Bail, Spend the Weekend in Jail: Substantive Due Process and Pretrial Detention

Abstract

On March 9, 2018, the United States Court of Appeals for the Tenth Circuit held, in Dawson v. Board of County Commissioners of Jefferson County, that the right to be free from pretrial detention absent a determination of guilt is not a fundamental right. Rather, the court held, it is a non-fundamental liberty interest. In so doing, the Tenth Circuit split with the United States Court of Appeals for the Ninth Circuit, which had held that the right is fundamental. The Tenth Circuit also diverged from the Ninth Circuit in its application of a test to determine whether the government’s detention policy constituted unconstitutional punishment. On January 7, 2019, the Supreme Court denied certiorari in Dawson, declining to address the circuit split. This Comment argues that the most accurate reading of the Supreme Court’s jurisprudence leads to the conclusion that the Court has recognized the right to be free from detention absent a determination of guilt as fundamental. This Comment further argues that the Supreme Court should have granted certiorari in Dawson to clarify the Tenth Circuit’s application of the law in two key areas. Such clarification is necessary to reduce confusion among the circuits in future pretrial detention cases. Lastly, it argues that the Supreme Court should have taken this opportunity to add additional factors to the test to help courts determine whether a government’s detention policy is excessive in relation to the government’s interest.