Report Reveals Extent of Federal Pretrial Detention Crisis
by Casey J. Bastian
A report on the first investigation into federal pretrial detention on a national level was released in October 2022 by the Federal Criminal Justice Clinic (FCJC) of the University of Chicago Law School. Combing through data from over 600 detention hearings across four federal districts over a two-year period, the report found that federal courts “have allowed misguided and entrenched practice norms to overshadow the law,” resulting in “skyrocketing” pretrial detention rates.
The report, Freedom Denied, attempted to “identify why the federal system has abandoned the norm of liberty.” Back in 1984, Congress passed the Bail Reform Act to emphasize the “presumption of release,” placing the burden on prosecutors to establish a true need for pretrial detention. In United States v Salerno, 481 U.S. 739 (1987), the U.S. Supreme Court found the law constitutional, noting its provisions “protect pretrial liberty and render pretrial detention” the “carefully limited exception.”
Now it appears those time-honored safeguards have collapsed.In 1983, only 23.8% of those charged were detained while awaiting trial, for an average period of two months. By 2019, 74.8% were detained for an average of nearly nine months.
Pretrial detention places a significant burden on individuals, their families, and society – especially for minorities, the poor, and other marginalized groups. Locked up in jail, people lose their jobs. Without an income, they lose their homes and cars. If there is no one to take care of their children, they lose custody of them, too.
The practice is also criminogenic; those detained are more likely to be convicted, receive a lengthier sentence, and they are 25% more likely to recidivate upon release.
One of the most important parameters of the bail reform law is found in 18 U.S.C. § 3142(f), which outlines factors that a prosecutor must meet at a defendant’s initial appearance before a detention hearing can be held. If the charged offense doesn’t satisfy the factors, release is required. But judges apparently have come to believe that jailing defendants pretrial protects the public. Statistics prove that just isn’t true. Moreover, it undermines the Constitution’s emphasis on a presumption of innocence. Yet prosecutors play on these judges’ misguided beliefs and often request a detention hearing without raising a single §3142(f) factor.
The report found that many times a person is not appointed counsel prior to his initial appearance. Unsurprisingly, when that happens, he or she is detained 100% of the time. When release is contingent on bond, bail conditions are often set beyond the financial means of the defendant – allowing poverty to become a de facto detention order. The report describes this as “an indisputable violation” of the Bail Reform Act.
It recommends that §3142(f) factors become a legal standard followed by judges at every initial appearance. Everyone must have an attorney at every stage of the proceedings. Judges must begin to “adhere to the low standard” for detention’s rebuttable presumption and “never treat the presumption as a mandate for detention.” Finally, imposed financial conditions must not be unduly burdensome.
Most importantly, the report notes, courthouse custom cannot be allowed to override the intent of the law. “We’ve always done it that way,” isn’t acceptable. It’s up to those in charge to correct these serious deficiencies in the pretrial process. As Justice John Paul Stevens observed: “It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.” Our collective confidence is rightfully shaken today.
Additional source: USA Today