Compensating Acquitted Pre-Trial Detainees

Western legal systems are far from having provided the same solution to the problem of whether acquitted pre-trial detainees should be compensated for the harm suffered as a result of detention on remand. Various arguments have been formulated in order to justify or criticize this compensation, but the possible incentive effects of this compensation on criminal behavior has not yet been considered. This paper analyzes these effects, focusing on the case where detention was lawfully and diligently carried out by State agents, and not having been caused by negligence on the part of the detainee. The paper shows that such compensation can either deter crime or encourage it, depending inter alia on the standard of evidence used to decide whether to compensate or not. Finally, the paper analyzes which standards of evidence maximize both deterrence and social welfare, and discusses some possible extensions