The Trouble with Time Served

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent.

A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions. The bottom line is this : Time served is not a panacea.

To the contrary, it contributes to criminal justice pathologies. This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted. The analysis reveals that crediting ti me served is a destructive practice on egalitarian, economic, expressive, and retributive grounds. Time served should be abandoned.

This Article then begins the discussion of what should replace time served, suggesting the possibility that detainees should be financially compensated instead. Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants — both the innocent and the guilty — and can lead to positive reforms. Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.