Hold On: The Remarkably Resilient, Constitutionally Dubious "48-Hour Hold"
This article discusses the surprisingly widespread, little-known practice of “48-hour holds,” where police detain a suspect without charge or access to bail for up to 48 hours to continue their investigation; at the end of 48 hours, they either charge or release him. Although it has not been discussed in the scholarly literature, the practice has occurred in a number of large local jurisdictions over the past few decades, and continues today in some of them. The “holds” often take place, admittedly or tacitly, without the probable cause needed to charge a defendant, and thus in violation of the Fourth Amendment. Even with probable cause, the article argues, it is constitutionally problematic to deliberately detain a person for 48 hours without charge. The article traces the development of the practice over the last few decades, including its surprising persistence despite repeated (though sporadic) criticism by courts and the media. It rejects the justifications for the practice asserted by its defenders, and suggests that the practice improperly allows the prosecution to achieve two “end runs” around normal procedural protections. First, the practice allows detention for 48 hours without starting the clock for a prompt bail determination. Second, it delays for 48 hours the point at which the Sixth Amendment right to counsel protections against interrogation attach, thus allowing an extra 48 hours for the police to “sweat” the defendant and potentially achieve confessions.
Steven Mulroy. "Hold On: The Remarkably Resilient, Constitutionally Dubious "48-Hour Hold"" Northwestern Law Review (2013).
Available at: http://works.bepress.com/steven_mulroy/4