Washington Law Review


Robert Pugh was arrested in Florida without a warrant and charged by prosecutor's information. Pugh and other incarcerated arrestees charged by information without a preliminary hearing brought a class action suit in federal district court challenging the constitutionality of the charging procedure. Plaintiffs maintained that the due process clause of the fourteenth amendment required that accused persons be accorded a determination of probable cause for detention soon after their arrest. They also argued that the prosecuting attorney was not sufficiently neutral or detached to make the necessary determination. The district court accepted the plaintiffs' arguments, and the Court of Appeals for the Fifth Circuit affirmed. The United States Supreme Court granted certiorari, and affirmed the Fifth Circuit's decision in part and reversed in part. Held: Although pretrial detention pursuant to the filing of an information without a judicial determination of probable cause is an unconstitutional violation of the fourth amendment guarantee against unreasonable seizures, that determination need not be made at an adversary proceeding. Gerstein v. Pugh, 420 U.S. 103 (1975). This note analyzes the Court's conclusion that adversary safeguards are not required during proceedings conducted to determine whether probable cause exists to hold an arrestee for trial. The Gerstein Court held that a finding of probable cause to arrest is sufficient to justify extended pretrial detention, so long as the existence of probable cause is determined by a neutral magistrate. It is submitted, however, that the Court erred in looking exclusively to the fourth amendment to determine the procedure and standards required in the Gerstein situation. Although the fourth amendment analysis is relevant in the context of the initial arrest, it is not relevant in the context of extended detention.

First Page