Wednesday, February 27, 2013

Bail, Pretrial Justice, and Federal Detention

The U.S. Department of Justice just issued its “Pretrial Detention and Misconduct in Federal District Courts, 1995-2010,” and it points to an alarming increase of federal pretrial detention – from 59% of defendants in 1995 to 76% of federal defendants in 2010. This number is a bit misleading, simply because defendants can be (1) detained for some part of the pretrial phase, (2) detained for the duration of the pretrial phase, or (3) never detained. As to the extremes, this report indicates that defendants never detained declined from 41% to 24%, while the number detained for the duration of the case increased from 42% to 64%. The trend seems clear; fewer people released and more people detained.

The report also suggests that an explosive immigration caseload has been a primary contributor to the increase in detention – a huge increase in immigration defendants with cases in federal courts (664%) contributing 60% of the overall increase in detention, despite the fact that detention rates for immigration cases did not rise nearly as much.    

Of course, immigration cases pose some of the biggest dilemmas for persons interested in bail and pretrial justice. These defendants are only accused of crimes, and they are allowed the benefits of the constitutional rights that every American enjoys; however, I have never seen an immigration case that did not somewhat inherently raise the issue of the risk of failure to appear for court. Perhaps this accounts for the fact that nearly 65% of federal defendants detained pretrial in 2010 had no prior arrest history. In a typical non-immigration case, no prior arrest history often means some form of pretrial release.    

Despite this possibly inherent flight-risk conundrum, I have seen numerous cases with immigration defendants who would seemingly pose little or no risk to public safety or failure to appear for court when measured by any objective pretrial risk instrument. It is interesting to me that ICE itself allows defendants to bond out of ICE custody for immigration proceedings, apparently for all the reasons the courts have articulated for any other non-immigration case.

In the past few years, federal officials have recognized the rising federal detention rate and have begun working on evidence-based methods to increase releases without sacrificing public safety or court appearances. This may account for the fact that federal pretrial detention actually peaked in 2008 and is now slowly declining. And, by the way, the court appearance rate for those defendants actually released has risen from 97% to 99% in the last fifteen years, and the public safety rate (no new arrests for felonies or misdemeanors while on bond) has stayed right around 98%, too. Misconduct based on technical violations has increased, but that's a topic for another day. 

Remember the words of conservative Justice William Rehnquist, writing for the Court in United States v. Salerno: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”  You can decide for yourself if a 76% detention rate is what the Chief Justice had in mind.

The full report is here: