RESTORED
Kingsley v. Hendrickson
576 U.S. 389 (2015) · 2015
Pretrial detainees — legally innocent people — finally got an objective excessive-force standard, but only barely.
“A pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.”
The Ruling
5–4, opinion by Justice Breyer. Michael Kingsley, awaiting trial in a Wisconsin county jail, was tased and slammed against a concrete bunk by officers. The Court held that to prevail on a Fourteenth Amendment excessive-force claim, a pretrial detainee need only show that the officers' use of force was objectively unreasonable, not that the officers were subjectively aware that the force was unreasonable. The objective standard is more protective than the malicious-and-sadistic test that governs convicted prisoners under the Eighth Amendment.
The Personhood Argument Not Made
Kingsley quietly admits the carceral personhood gradient that the rest of the doctrine pretends does not exist. The Court reasoned that pretrial detainees, having not been convicted of anything, may not be 'punished' at all under the Due Process Clause — and so cannot be subjected to the lower Eighth Amendment standard that applies post-conviction. The decision restores something for the legally innocent. But the corollary is the part Hornig's framework names: conviction triggers a downgrade in the constitutional standard governing what may be done to the human body of the detained person. Personhood is calibrated to legal status, not to humanity.
The Execution Gap Created
On any given day in the United States, approximately 460,000 people are held in pretrial detention — roughly 70% of the total local-jail population — overwhelmingly because they cannot afford cash bail. The median felony bail bond ($10,000) equals about eight months of income for the typical detained defendant. Kingsley provides a doctrinal standard for excessive force against this population, but does nothing about the prior question of why hundreds of thousands of legally-innocent people are confined at all.
Primary sources & research
Related cases
Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →