Charging Time

Overview

Our country faces a crisis of punishment without prosecution. Across the United States, people languish in jail, waiting to learn whether prosecutors will file charges against them. Unfortunately, there are no clear constitutional limits on how long a prosecutor can delay making a charging decision.

For an arrested person, the criminal court process begins when police take them to jail. But legally, an arrest is not the same as a prosecution. While an arrest brings a person into the criminal legal system, only a prosecutor can decide whether to seek a conviction or decline prosecution. And an arrested person can wait in jail for days, weeks, or even months before a prosecutor reviews their case.

Key Findings

No person should be jailed for months without formal criminal charges. No parent should disappear from their children’s lives, no worker from their job, no student from their school -- unless a trained prosecutor has determined that there is sufficient evidence to charge that person with a crime. Policymakers must guarantee that every arrested person is timely charged with a crime or released from jail. States must set clear time limits for charging decisions. And people detained without charges must have an attorney to advocate for their release.

Zach Hill's Story

In 2018, police in Jackson County, Mississippi arrested Zach Hill, a teenager with autism, on suspicion of burglary. After the prosecutor waited 270 days to present the case to a grand jury, there was insufficient evidence to justify formal charges. Mr. Hill was imprisoned for almost nine months in the Jackson County Adult Detention Center, but was never charged with a crime. He spent his 19th birthday in jail.

Explore Our Recommendations

Jurisdictions should adopt determinate charging deadlines that are long enough to allow prosecutors to review the foundational evidence, but short enough to prevent uncharged people from languishing in jail.

Any extension to the charging deadline must be rare, supervised, and brief. Motions for extension should be in writing and must be filed before the charging deadline expires. An extension should require either the consent of defense counsel or a judicial finding of need. With any request for extension, a judge must also conduct a de novo review of pretrial confinement or conditions of release.

When formal charges are not timely filed, the arrested person should be automatically released without conditions.

All detained people should be presumed eligible for appointed counsel. Counsel should be appointed prior to initial appearance. Arrested people should be continuously represented from initial appearance, through the charging period, until their case is resolved.