University of Notre Dame

Pretrial Commitment and the Fourth Amendment

April 15, 2024

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Pretrial Commitment and the Fourth Amendment

Laurent Sacharoff*

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only.  But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.”  Judges issued these warrants to jail defendants pending trial.

This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant.  That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function.

History supports this understanding.  For example, in two Supreme Court cases in 1806 and 1807, lawyers and the Justices applied, either expressly or implicitly, the Fourth Amendment Warrant Clause to the warrant of commitment.  Moreover, Chief Justice Marshall did so expressly in a different case, riding circuit, in 1807.  Leading lawyers of that era, as well as nineteenth-century treatises, likewise understood that the Warrant Clause applied to the commitment warrant separate from any arrest warrant.  The commitment warrant, often called a mittimus, therefore required its own probable cause supported by oath or affirmation.

Remarkably, this history has largely been lost.  Neither courts nor scholars today recognize that the Fourth Amendment applies to this third, important type of warrant—even though judges still use such warrants to commit.  But applying the Warrant Clause directly to commitment warrants would restore to defendants some of the surprisingly robust pretrial rights they enjoyed in the founding era and help reduce the mass incarceration of defendants pending trial.

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© 2024 Laurent Sacharoff.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

* Professor of Law, University of Denver Sturm College of Law.  The author would like to thank Sandra Mayson, Joshua Dressler, William Baude, Jeffrey Bellin, Ric Simmons, Nancy Leong, Ian Farrell, and Michael Whitlow.