New University of Chicago Study’s Shocking Revelations of Federal Bail Injustice: Systemic Errors and the “Culture of Detention”
Posted on by Michael Lowe.
Arrests are always serious. After all, individual freedom is taken away. A permanent and public criminal record is created (or grows). Careers can be lost, and relationships can end — just because of an arrest.
Experienced criminal defense lawyers have seen all too often how “innocent until proven guilty” may not matter to supervisors, deans, landlords, or girlfriends of those arrested on even minor charges that are readily dismissed.
There are also the personal ramifications. Someone who is arrested, particularly in a public place, may suffer embarrassment; humiliation; anger; frustration; depression; rage – no one who goes through an arrest fails to be impacted in all sorts of ways.
However, arrests are not trials. Police officers, sheriff’s deputies, and federal agents cannot toss individuals in cells and throw away the key. This is because of longstanding federal constitutional protections that limit police powers.
Among them is a key legal safeguard: the ability of the accused to “make bail” after an arrest. Because, without bail or release on personal recognizance, the arrested must stay behind bars until resolution of the matter. This might take days, weeks, or months. Innocence doesn’t matter.
What is Bail?
Bottom line, bail is money. It is provided as a form of insurance for the release of the accused from custody. The idea of bail is that the accused, once returned to freedom, will still appear to defend against the criminal charges to protect against the loss or forfeit of this money, or “bail.”
The Eighth Amendment provides that “excessive bail shall not be required.” U.S. Const. Amend. VIII. As the United States Supreme Court explained long ago in Hudson v. Parker, 156 U.S. 277, 285, 15 S. Ct. 450, 39 L. Ed. 424 (1895):
This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
Bail in the Federal System
Particularly for those arrested on federal charges, bail is very important. Why? To enter the federal criminal justice system via an arrest means the accused has entered a jurisdiction structured much differently than the State of Texas. Bail in the federal system is controlled by the Bail Reform Act of 1984 (“BRA”).
Federal charges come with things like the complicated United States Sentencing Guidelines and statutes requiring mandatory minimum sentences. It’s a different battleground, too: only a select percentage of licensed Texas attorneys are admitted to practice before the federal courts. The adage of someone “making a federal case” out of something arises out of the serious, complex, and intricate nature of a federal criminal matter. For more, read our discussions in:
- Felony Charges under Texas and Federal Law: Criminal Defense Overview;
- Mandatory Minimum Penalties in Federal Sentencing;
- Federal Sentencing Guidelines On Federal Child Pornography Cases;
- Federal Crimes and Sentencing Guidelines: Health Care Fraud;
- Methamphetamine Trafficking and Federal Sentencing; and
- Relevant Conduct In The Federal Sentencing Guidelines: Acquittals And Uncharged Conduct.
The New 2022 Bail Research Study by University of Chicago Law School
This makes the new 280-page research study published by the University of Chicago this month all the more disturbing for experienced federal criminal defense attorneys, because it warns of rampant and overwhelming injustice in the federal bail system.
Read, Siegler, Alison, et. al., “Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis,” University of Chicago Law School Federal Criminal Justice Clinic (2022) (“Report”).
From the Report’s Executive Summary (emphasis added):
[T]his study exposes a very different reality than that envisioned by the Supreme Court, one in which federal judges regularly deviate from and even violate the law, and on-the-ground practices vary widely from district to district.
Chicago Law School Cries Out: There is a “Federal Jailing Crisis”
Why is this December 2022 publication so important? First, it’s an expose, not by reporters eager for headlines but by a respected law school. Second, it goes into great detail about what has been discovered regarding bail and jail in the federal criminal justice system. Things are very wrong.
From Professor Alison Siegler, Founding Director of the University of Chicago’s Federal Criminal Justice Clinic and Clinical Professor of Law at the University of Chicago Law School:
“In our legal system, everyone who enters the courtroom is presumed innocent and is entitled to certain legal rights and protections. But in federal courtrooms across the country, judges are ignoring the presumption of innocence and violating people’s rights, and marginalized communities are paying the price. This work is about bringing to light a ‘culture of detention’ that exists in the federal legal system and helping judges to realign their practices so that justice-involved individuals do not face illegal and inequitable detention.”
The Report compiles data taken directly from 600 bail hearings held in federal district courts in Baltimore; Boston; Miami; and Salt Lake City. There were also a series of 50 interviews with both federal judges and attorneys that contributed to the study. It took two years to complete. Report, p. 17.
Disturbing Conclusions From the Chicago Law School Bail Report
Reading the entire 280-page report is a wise endeavor by anyone practicing in the federal criminal justice system. Here are several alarming revelations that can be found within the Report – not everything can be discussed here; again, please go and read the report in its entirety.
1. There is a Shocking 75% Federal Detention Rate: Only 25% Get Bail
According to the Report, pretrial detention rates reached a shocking 75% by 2019. That means anyone accused of a federal crime has a 75% chance that he or she will remain in jail as their case moves through the system “…demonstrating how far federal practice has strayed from the presumption of innocence and the statutory presumption of release.” Report, p. 22.
Meanwhile, the researchers point out (Report, p. 24, footnotes removed) that:
Data prove that locking away so many human beings is not necessary to promote the two goals at the heart of the BRA: ensuring that people released on bond appear in court and do not commit additional crimes. Releasing more people does not lead to increased rates of flight or crime. In fact, the rates at which people on federal pretrial release either fail to appear for court or are rearrested for new crimes are extraordinarily low across the board, with both sitting at approximately 1–2%. See Figure 4. Those rates have remained vanishingly low over time, from the 1980s through today, regardless of any changes in the federal criminal population or the types of crimes charged.
2. Federal Judges Are Unlawfully Jailing People at Their Initial Appearance
The BRA sets out the process that is to be taken at the Initial Appearance hearing for someone who has been arrested for a federal crime. The Report has found that all too often, the AUSA will ask for pretrial detention for reasons that are not within 18 U.S C. §3142(f)). Sadly, many defense lawyers will not object to this error. From the bench, the federal judges are not questioning the government’s arguments but “rubber stamping” the prosecutor’s detention requests. Report, p. 29.
As the Report explains, when the accused faces charges as delineated in 18 U.S C. §3142(f)(1), the judge should be ordering a Detention Hearing at that Initial Appearance. The accused may be detained until that hearing. However, when the accused does not face these specifically listed charges, then the accused can be detained pending that Detention Hearing only if there is a serious risk that he or she will flee, obstruct justice, or threaten, injure, or intimidate a prospective witness or juror. Report, p. 30.
The statistics are staggering. The Report found that in 81% of the Initial Appearances they observed, a Detention Hearing was requested by the government without citing any legal basis under 18 U.S C. §3142(f)). And, in 99% of the Initial Appearances where the prosecution asked for detention without citing a valid legal basis for doing so, the federal judge went ahead and detained the accused. Report p. 32.
3. Federal Judges Are Incorrectly Applying Presumption of Detention
The Detention Hearing is the second hearing in the federal criminal justice system after an accused has been arrested. The Report reveals that while there is a rebuttable presumption of detention in some matters, the presumption by law “does not mandate detention.” Nevertheless, federal judges were observed to “routinely apply” the presumption with more weight than provided by law and also “failing to assess” if there was a rebuttal of the presumption’s application in the case at bar. Report p. 38.
While there is an “easy-to-meet rebuttal standard” found in the BRA, all too often the presumption of detention is being misused and misapplied in our federal courts. The result? More people are being kept behind bars than is necessary or legally valid. From the report:
In 95% of the contested Detention Hearings we observed where the presumption of detention applied, judges either failed to mention whether the presumption of detention was rebutted or concluded that the detention was not rebutted. – Report p. 40.
4. Other Findings From the Report
These are just a few of the findings found in the newly released Report. Others include the following, as described in the news release which accompanied the Report’s publication:
- Federal judges regularly disregard the law that protects against a person being jailed due to their inability to pay bail, directly impacting people of color and people from low-income backgrounds. In 37% of cases, judges imposed monetary bail conditions, including bail bonds, and over one third of those people remained in jail because they were too poor to make bail. Black and Latino people were much more likely to face financial burdens than white people; 95% of those judges saddled with money bail were people of color.
- Federal judges regularly disregard the legal requirement to ensure that anyone who cannot afford a lawyer is represented by court-appointed counsel during their initial appearance hearing. Judges in more than one-quarter of federal district courts routinely lock people in jail during the initial bail appearance without first providing them with a lawyer. With 90% of those charged with a federal crime unable to afford a lawyer, the failure of judges to appoint counsel leads to higher jailing rates for people from low-income backgrounds. In one district, every single person deprived of counsel was locked in jail, and 92% of those who suffered this fate were people of color.
Arrest and Bail in Texas: Federal Criminal Defense
The Bail Reform Act of 1984 does provide for people to be kept behind bars pending trial of their federal criminal charges, but this new Report reveals that the intent of the legislation has been forgotten or mislaid. The BRA’s intent is for defendants to be denied their freedom after arrest only in certain circumstances. Unfortunately, the presumption of innocence has been forgotten in too many situations as an apparent, statistically unsupported fear of public safety has allowed too many people to be jailed without bail.
It is the AUSA’s burden to establish to the federal judge why the defendant’s freedom should not be returned to them pending trial. However, it is also the job of the federal criminal defense lawyer to point out when the prosecution is failing to meet that burden of proof and persuasion.
This current situation, as revealed by the University of Chicago Law School, is troubling not only from a defense perspective. The Report, now available to the public, reveals a weakness in the federal judicial reputation which is concerning insofar as it acts to challenge the bench’s legitimacy in action. See, e.g., “Study: Federal magistrates, prosecutors misunderstand bail law, jailing people who should go free,” written by Tami Abdollah and published by USA Today on December 7, 2022.
It also serves to reveal a cruel reality: people who are presumed innocent are being kept in federal custody and suffering as a result. So are their loved ones, friends, colleagues, and others who are impacted by their arrest.
The criminal defense bar has a great responsibility here. Defense representations must include a resounding analysis of all federal bail issues and especially bail determinations; denials of bail; and the entirety of the proceedings at all Initial Appearances and Detention Hearings.
For more, read:
- How Criminal Charges Get Dropped in State and Federal Cases; and
- Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview.
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