Mass incarceration has led to the confinement of 2.3 million individuals in the United States,despite a steady decline in crime rates since the 1990s.An already strained carceral system,now operating against the backdrop of a nation reeling from the global COVID-19 pandemic,has experienced an influx of detainees as demonstrators are periodically arrested for protesting the very institutions that are sending them to jail.As demonstrators are arrested and detained, often for minor offenses, many people who have not been touched by the criminal justice system before are getting a glimpse at detention facility conditions.Mass arrests and the impacts of COVID-19 on the carceral system have brought new journalistic attention to the conditions of jails and prisons.

American prisons and jails house over half a million individuals as they await trial,many of whom remain confined pretrial simply because of their inability to pay bail.Bail is often set arbitrarily at amounts that are unaffordable to many.As a result, impoverished individuals spend significant time in confinement while awaiting the resolution of their charges.Apart from losing the ability to move about freely, pretrial detainees often suffer additional negative outcomes— such as loss of employment opportunitiesand loss of time with children and other dependents.Such individuals, who are already suffering devastating consequences without ever being convicted of any crime, are also often subject to grating conditions. Many pretrial detainees suffering harm while in detention do not litigate their potential claims,and when they do, the standard by which courts review their cases varies by jurisdiction.This variation places an already vulnerable population in a state of uncertainty with regard to their ability to access justice and recover after oftentimes traumatic experiences.

In 2015, the Supreme Court decided Kingsley v. Hendrickson.Some believed that this decision would bring national uniformity to pretrial detainees’ conditions of confinement claims,but circuit courts have diverged in their application of Kingsley’s holdings.This Note examines the inconsistency and calls for uniform application of Kingsley to all pretrial detainee claims in the Eighth Circuit. Part II describes the framework by which pretrial detainees litigate claims against governmental actors, walks through the doctrinal development underlying such claims, and breaks down the circuit split that ensued post-Kingsley. Part III discusses the Whitney v. Saint Louisopinion that came out of the Eighth Circuit in 2017. Finally, Part IV argues that the Eighth Circuit erred in deciding Whitney when it failed to adopt an objective standard to evaluate conditions of confinement cases brought by pretrial detainees.