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19 Berkeley J. Crim. L. 1 (2014)

handle is hein.journals/bjcl19 and id is 1 raw text is: ISSuE 19.1                                                                                   SPRING 2014

State Constitutions and the Humane
Treatment of Arrestees and Pretrial
Detainees
Caroline Davidson*
With the United States Supreme Court's repeated moves to roll
back federal constitutional protections for people arrested or in jail, the
time has come to reconsider the potential of state constitutions to
promote protection of civil liberties of these groups. This Article
explores the oft-overlooked world of state constitutional protections for
arrestees and pretrial detainees, with a focus on provisions
guaranteeing humane treatment, and evaluates strategies for
encouraging interpretation of and, ultimately, compliance with these
constitutional guarantees.
Introduction                              .......................2..... ..............2
I. The Limitations of the United States Constitution in Ensuring the
Humane Treatment of Arrestees and Pretrial Detainees............7
A. The Limitations of the Substantive Rights ..  ............... 8
B. Federal Barriers to Judicial Review .................. 15
II. State Constitutional Protections for Arrestees and Pretrial
Detainees       ............................................ 18
A. Overview of Unique State Constitutional Protections
with Implications for Arrestees and Pretrial Detainees ........ 19
B. State Constitutional Guarantees of Humane Treatment
for Arrestees and Pretrial Detainees ................. 23
1. The Text and History of State Constitutional
* Assistant Professor, Willamette University, College of Law. J.D Harvard Law School.
A.B. Princeton University. Many thanks to Professors Robert Williams, Justin Long,
Johanna Kalb, Carrie Leonetti, Shawn Halbert, Jennifer Mueller, Maya Manian, Paul
Diller, Gwynne Skinner, Laura Appleman, David Friedman, Keith Cunningham-
Parmeter and Justice Hans Linde for their thoughtful comments at various stages of this
paper, to Jamie Moon for her exceptional research assistance, and to Galin Brown for
her diligent library support.

ISSUE 19.1

SPluNG. 2014

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