The Supreme Court has set forth in detail the standards that govern convicted
prisoners’ Eighth Amendment claims concerning their conditions of confinement, but
has left undefined the standards for comparable claims by pretrial detainees. The law
articulated by the lower courts is unclear and inconsistent, but on the whole shows a
trend toward assimilating pretrial detainees’ claims to those of convicted prisoners.
Based on a review of Supreme Court case law concerning related questions, this
Article argues that, for claims arising after a judicial determination of probable
cause, the tests now prevailing in the lower courts should be replaced by a substantive
due process framework that requires a plaintiff to show, at most, either punitive
intent or objective deliberate indifference by the defendant. For claims arising after
a warrantless arrest and before a judicial determination of probable cause, the
Fourth Amendment’s objective reasonableness standard should govern. The Article
further notes a strong argument that this objective reasonableness standard should
govern prior to arraignment, even when the arrest took place upon a warrant.