Freedom Denied Part 4: Judges Must Follow the Correct Legal Standard in Presumption-of-Detention Cases …
Our Federal Criminal Justice Clinic’s recent national report on federal pretrial detention—Freedom Denied—revealed a severe misalignment between the Bail Reform Act’s requirements and on-the-ground practice. In the preceding two posts, we focused on the Initial Appearance hearing. This post now turns to the Detention Hearing.
This post addresses the third of our four findings and recommendations: “Judges must follow the correct legal standard in presumption-of-detention cases to reduce racial disparities and high federal jailing rates.”
The Bail Reform Act clearly favors pretrial release in most cases. At the Detention Hearing, a person must be released unless “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). But the Act contains a rebuttable presumption of detention for some crimes—most federal drug offenses and § 924(c) gun charges.
This presumption was intended to apply extraordinarily narrowly:
Congress intended this presumption of detention to capture only the “worst of the worst” offenders. “[L]egislators wanted the drug presumption to prevent rich people suspected of high-level drug trafficking from fleeing.” But in practice, the presumption now applies in a high percentage of federal cases—including 93% of federal drug cases—very few of which pose any special risks of flight or recidivism.
As a legal matter, the presumption should have, at most, a limited effect:
[C]ase law emphasizes two checks that the BRA and the Constitution impose on the presumption: (1) there is an easy-to-meet standard for rebutting the presumption and the prosecution always bears the burden of persuasion, and (2) the presumption alone does not warrant detention and must always be weighed along with other factors.
But our study revealed that judges often eschew these legal requirements in favor of misguided courtroom practices:
Even though judges have the power and legal responsibility to limit the impact of the presumption of detention, they seldom do. Instead, our research shows that judges routinely ignore the legal checks that the BRA provides and give the presumption of detention more weight than the law allows. This appears to be a nationwide problem, as our courtwatching data were supported by interviews with stakeholders in many additi
Article from Reason.com
