Disentangling the Eighth and Fourteenth Amendments: Pretrial Detainees and Due Process Rights after Kingsley v. Hendrickson

In Kingsley v. Hendrickson, the Supreme Court repudiated the lower courts’ decades-long practice of grafting the Eighth Amendment standard onto Fourteenth Amendment claims brought by pretrial detainees. Since Kingsley, lower courts have warred over whether the holding applies to non–excessive‑force claims like inadequate‑medical‑care, conditions‑of‑confinement, and failure‑to‑protect. Five circuits (the Second, Fourth, Sixth, Seventh, and Ninth) have held that Kingsley extends beyond excessive force‑claims. Four circuits (the Fifth, Eighth, Tenth, and Eleventh) have held that Kingsley does not extend beyond excessive‑force claims. The Supreme Court has repeatedly declined to grant certiorari to clarify the scope of Kingsley. While confusion about the standard remains, nearly half of the country’s 400,000 pretrial detainees are subjected to a higher standard than the other half. This Article mediates the dispute between the circuits and provides a test that can be applied accurately and consistently to all claims brought by pretrial detainees. Further, this Article asserts an entirely novel proposition: that Kingsley’s standard extends beyond the pretrial‑detention context to all Fourteenth Amendment claims brought by individuals in state custody, including over 400,000 foster children.