Freedom Denied Part 2: Judges Must Follow the Correct Legal Standard at the Initial Appearance,
In our Federal Criminal Justice Clinic’s new report, Freedom Denied, we sought to understand the current federal pretrial detention crisis that results in the pretrial jailing of three out of every four federal arrestees.
This post addresses the first of our four findings and recommendations: “Judges must follow the correct legal standard at the Initial Appearance hearing and stop jailing people unlawfully.”
The Bail Reform Act of 1984 (BRA) allows the prosecution to move for detention at the Initial Appearance in only a limited set of cases.
There is a widespread misperception that prosecutors are entitled to a Detention Hearing every time they request one. However, under the BRA, the prosecutor may move for detention at the Initial Appearance only if authorized by one of the factors in § 3142(f) (the “(f) factors”). The BRA says that “the judicial officer shall hold a [detention] hearing” only “in a case that involves” one of the 7 (f) factors. “If none of the § 3142(f) factors are satisfied, however, the [judge] is prohibited from holding a detention hearing or detaining the defendant pending trial.” If no (f) factor applies, the arrestee must, as a matter of law, be released at the Initial Appearance. In this sense, § 3142(f) “serve[s] as a gatekeeper to [pretrial] detention.”
The BRA’s legal standard at the Initial Appearance was a central reason that the Court in United States v. Salerno upheld the constitutionality of the Act: “The Act operates only on individuals who have been arrested for a specific category of extremely serious offenses. 18 U.S.C. § 3142(f).”
It is therefore especially troubling that
[o]ur data expose a severe misalignment between the BRA’s prescribed Initial Appearance process and the practice that unfolds in federal courthouses around the country. We observed a problematic feedback loop play out during Initial Appearances: the prosecutor requests pretrial detention for reasons not authorized by the law, the defense attorney does not object, and the judge neither questions the prosecutor nor adheres to the statutory requirements, sometimes jailing people unlawfully. See Figure 5. When judges rubber stamp prosecutorial detention requests that deviate from the legal standard, prosecutors continue disregarding the law and judges continue jailing people improperly in a subset of cases—in an endless cycle. The illegal detentions that result from this mutually-reinforcing process ultimately lead to higher jailing rates at the Initial Appearance and beyond, and fall disproportionately on people of color.
We found that in some cases, judges illegally jail people who should be released back to the community:
Our most troubling finding was that, in 12% of Initial Appearances where the prosecutor was seeking detention, judges detained people illegally. See Figure 9. These were non-(f)(1) cases where, as a matter of law, there was no offense-specific ground for detention under § 314
Article from Reason.com