January 2023 | Volume 14, Issue 6

Find the full video and article on USA Today.

Study: Federal Magistrates, Prosecutors Misunderstand Bail Law, Jailing People Who Should Go Free

According to the article, a Reagan-era law, passed by Congress nearly four decades ago to change the federal bail system in order to address concerns over rising crime committed by arrestees released pending trial, has been wildly misunderstood and misapplied by the federal court system's magistrate judges, prosecutors, public defenders and probation officers, a new two-year national study finds.

The unprecedented look at federal pretrial detention conducted by the University of Chicago Law School's Federal Criminal Justice Clinic paints a portrait of a judicial system that has neglected the rights of especially poor arrestees and people of color. Such systemic problems are largely the result of what judges and advocates told the media is a poorly written, war-on-drugs-era statute known as the Bail Reform Act of 1984, an over reliance on prosecutorial discretion, and risk-averse magistrate judges and federal defenders.

According to the report, in 1983, less than 24 percent of arrestees were jailed pretrial. By 2019, nearly 75 percent of them were.

As of June 30, nearly 118,000 people were federally jailed pretrial, according to federal courts data. At the same time, the amount of time presumably innocent people spent locked up awaiting trial has also increased nearly sevenfold, the report found, from an average of less than two months in jail in 1985 to nearly a year now.

"(The Supreme Court in) Salerno said that 'liberty is the norm,' but we've known for a long time that that's not true," said Melody Brannon, the chief federal public defender for the District of Kansas. 

Federal pretrial jailing cost taxpayers tens of thousands of dollars per arrestee per year or an estimated more than $1 billion per year according to the report. Prior research cited in the report also has shown that jailing has a cascading effect on an arrestee's life from even just a few days behind bars, which may cost them their job, custody of their child, and even impact their housing, as well as make it more likely an arrestee is convicted, sentenced to a longer term and faces mandatory minimums.

The bail statute prioritizes the pretrial release of arrestees except under certain, narrowly construed conditions, and it burdens federal prosecutors with convincingly explaining why a presumably innocent person should be jailed until their trial rather than released into the community.

Federal magistrate judges may over-detain out of fear that someone they let go will commit a new crime or worry that they may lose their jobs since they serve terms at the discretion of the district court, according to the report "Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis," which sums up the study's findings.

But federal data shows that even when judges released arrestees at higher rates, failure-to-appear and rearrest rates remained steady at about 1 to 2 percent.

"Part of what's happening and why people are being locked in jail at really high rates is people aren't paying attention to what the law requires," said Alison Siegler, the report's lead author and a University of Chicago Law School clinical professor who is the clinic's founding director. She said many judges she's spoken to are "surprised and horrified that the in-court practice has gotten so attenuated from what the legal requirements are. The courtroom process is untethered from what the law demands."

State court systems have been the primary focus of most criminal justice reform efforts around the country not only because most criminal proceedings occur in those courts, but also because the federal judiciary has frequently been viewed as more proficient at ensuring justice is being served.

But the study shows the federal courts may simply be less scrutinized, federal judges and defense attorneys who reviewed its findings told the media. Although the federal courts collect an abundance of data, such information about race, pretrial detention, recidivism, and flight is not publicly released.

The study's court-watching effort involved the examination of the entire pretrial detention and release process in 343 cases out of four federal courts: the Southern District of Florida in Miami, the District of Massachusetts in Boston, the District of Maryland in Baltimore, and the District of Utah in Salt Lake City. Researchers also interviewed 48 federal magistrate judges and federal public defenders from 36 federal courts across 11 circuits.

The statistical analysis was limited by the relatively small sample size of the data, especially district-specific race data, and the lack of access to non-public reports to verify arrestees' criminal history. Court-watchers determined the race of arrestees through observations about their physical appearances.

Page Kelley, the chief magistrate judge in the District of Massachusetts, said that despite the small dataset "the report highlights real problems in the federal system that need to be addressed" and that would benefit from further study.

Charles Hall, a spokesman for the Administrative Office of the U.S. Courts, said in a statement that the federal judiciary has worked hard to make sure defendants aren't detained "unless the law identifies a specific need to protect the public."

These efforts include reassessing possible risk factors; educating judges, probation, and pretrial service officers as well as prosecutors; and advocating for legislation to reduce pretrial detention for certain drug offenses, Hall said.

In October, the Federal Judicial Center held a daylong training in Detroit for more than 100 district and magistrate judges on how to reduce unnecessary pretrial detention under the Bail Reform Act, Hall said. Siegler's work was featured during the training. And in February, judiciary trainers are scheduled to speak at the Department of Justice's National Advocacy Center about ways federal prosecutors can safely reduce pretrial detention requests, Hall said.

"There are thousands of decisions that are not appealed and can affect the outcome of a case," said Nancy Gertner, who formerly sat on the U.S. District Court for the District of Massachusetts.

"The only way you can wrap your head around those decisions is with data and observations like this."

She said the findings suggest that "there should be court watchers all around the country."

The Bail Reform Act includes a narrow list of offenses that make an arrestee eligible for detention and a second hearing. Those include more serious violent crimes; crimes involving violence, guns, minor victims, or terrorism; most drug offenses; offenses carrying a maximum penalty of life imprisonment or death; and certain cases of recidivism. Prosecutors can also argue there is a "serious risk" an arrestee will flee or obstruct justice.

If none of these offenses are involved nor conditions met, then an arrestee should be released at the initial appearance.

The study found, however, that "courtroom custom," by and large, overrode the legal standard outlined by the bail statute, which favors pretrial release under the least restrictive conditions necessary to "reasonably assure" an arrestee returns to court and the community is safe.

When U.S. Magistrate Judge Jonathan Hawley first got on the bench in the Central District of Illinois over eight years ago, “no one appearing in front of me, from defense lawyers to prosecutors to probation officers understood how the (Bail Reform) Act applied. And it was a shock to me."

Hawley, who serves as chair of the Magistrate Judge Education Advisory Committee of the Federal Judicial Center and has taught new judges for eight years, said education efforts have improved.

"But when they go back to their home districts, they’re sometimes confronted with (other) judges who have been on the bench for a long time who may not be applying the act correctly, and so they encounter some resistance.”

That resistance can come from other judges or prosecutors, defense attorneys or probation officers, he said.

“When you’re a new judge and you come in, everyone says, ‘judge, we don’t do it that way,’” Hawley said. “You have to have a lot of self-confidence to say this is the way we’re going to do it.”

The study's court observers frequently found that judges seemed to give prosecutors the benefit of the doubt. In more than 99 percent of the initial appearances where prosecutors asked for detention without citing a valid basis as required under the statute, judges unquestioningly agreed to detain people.

Wyn Hornbuckle, a Justice Department spokesman, said the deputy attorney general gave guidance on best practices on the Bail Reform Act to federal prosecutors last month.

"Prosecutors are to exercise reasoned prosecutorial discretion in making decisions about whether to seek detention on a case-by-case basis, without reflexively relying on the Bail Reform Act’s presumption, taking into account public safety and weighing all facts and circumstances," Hornbuckle wrote in an email, noting that the guidance is consistent with longstanding department policy.

In 12 percent of the initial appearances where the prosecutor sought detention, judges entered detention orders even though there was no statutory basis for it and it was therefore technically illegal, the study found. In those cases, defense attorneys also failed to object, creating what the report called a "problematic feedback loop" that led to sometimes jailing people unlawfully.

The study found that prosecutors more frequently requested detention for noncitizen arrestees, leading judges to regularly detain about 20 percent of the noncitizens they sought detention for illegally at their initial appearances, the study found. That's because illegal reentry and immigration offenses don't count as serious risk of flight or obstruction – the flight must be voluntary.

Juval O. Scott, the federal public defender for the Western District of Virginia, said when she took over the office in 2019, she instituted a policy that lawyers in the office had to challenge detention unless there was a reason not to.

Since then, the district's release rate has gone up almost 20 percent, said Scott, who's also worked as a public defender in federal districts in Indiana and Wisconsin.

"There were a lot of very seasoned defense attorneys that had no clue what the statute said," Scott said. "They walked into court, and they would agree that their clients could be detained even when the statute did not offer a basis for their detention. So, we can’t blame judges for detaining people if the defense bar doesn’t step up and ask for their release and tell the court why."

Gertner, who left the federal bench in 2011 after 17 years, said she didn't remember a single appeal of a magistrate judge's detention decision during that time.

"I didn't really know what was going on at the magistrate level because no one brought it to our attention," Gertner said. "This is a completely unexamined, un-appealed process."

Nellie L. King, president of the National Association of Criminal Defense Lawyers, said in a statement that the association "will be looking for opportunities to ensure compliance with the law.”

The study also uncovered another important systemic issue tangential to its central focus on compliance with the bail statute. Among the four federal districts being observed, researchers found that arrestees were fully represented by counsel in only 60 percent of their initial appearances. In 30 percent of the cases, they were not provided counsel until partway through the hearing. In 7 percent of the cases, they were forced to represent themselves.

Of the four districts, the Southern District of Florida was the only one where observers saw judges hold initial appearances and jail people with no defense lawyer present.

In all, more than a quarter of the 94 federal district courts fail to ensure all arrestees are represented by a lawyer at their initial appearance – a violation of federal law and likely the Constitution.

Siegler called the findings a "dirty secret of the federal system."

With no defense attorney in the courtroom, there's no one there who has the arrestee's interest at heart, no one to say that it's unlawful to hold a hearing without a lawyer, and no one to argue for the person's release that day, Siegler said.

The vast majority, or 92 percent, of the arrestees who were unrepresented at their initial appearances were people of color, and every unrepresented arrestee was jailed at their initial appearance. Black and Latino defendants were given lawyers less often than white arrestees, ended up more frequently representing themselves during initial appearances and were therefore more vulnerable to making incriminating statements.

The report notes that many magistrate judges apparently operate under the misconception that an initial appearance is an administrative proceeding rather than a court hearing like any other and governed by the same rules.

"Every time a federal judge fails to provide a lawyer for an arrestee during the initial appearance and forces that person to appear (representing themselves) across from a prosecutor, they violate the law," the report states.

Yet in more than a quarter of federal courts, prosecutors regularly ask judges to deprive unrepresented people of their liberty, the researchers found.

"Federal prosecutors should never participate in any hearing in a criminal case when there is no advocate on the other side," the report states. "Instead, there should be a blanket DOJ policy requiring prosecutors to insist on the appointment of counsel (promptly)... before any hearing is held—especially any hearing where they seek to jail the accused."

Hornbuckle, the Justice Department spokesman, said part of the deputy attorney general's guidance on best practices for prosecutors included an explicit reminder that federal law states that "a defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding [including] initial appearance," except where "the defendant waives this right."

Kelley said lots of probation officers like to scoot in and write up their report without having to wait for the lawyer, but it can be incriminating to ask someone basic questions about themselves. For example, in a case with a wiretap on someone's phone, having a person provide their phone number is incriminating. Similarly, if there was a search warrant executed at a certain location, having someone identify that location as their residence is a huge problem.

"It is beyond question that the federal system detains far too many people pending resolution of their cases," said King, with the criminal defense lawyers' association. She added that detention comes at great cost to these peoples' health, connection to their families and their communities.

"There are a host of reasons for the federal system’s overuse of pretrial detention – from unfair presumptions in the Bail Reform Act to prosecutors seeking unfair leverage in plea negotiations," King said. "Against this already unfavorable landscape it is inexcusable to deny accused persons the right to counsel, which is absolutely critical at this stage."

The report recommended that courts utilize duty attorneys, for example, to ensure people are actively represented by a lawyer from their initial appearance before the judge, or at the very least before any determination as to whether a person should be released or detained pending trial.

Certain serious offenses, such as those involving drugs, gun charges, terrorism, or crimes against minors, carry a "rebuttable" presumption of detention. It's meant to be easily argued against by the defense if some evidence is provided to show that an arrestee won't flee or endanger the community.

But researchers found that judges fail to treat it as such. "Instead, they treat the presumption as a de facto detention order," the report says.

Arrestees facing charges that carry a presumption of detention were 72 percent likely to be jailed – 17 percent more likely than when such a presumption did not apply. They were also more likely to be people of color.

Congress intended the presumption of detention to apply narrowly to the "worst of the worst" offenders, the report states. Under the statute, prosecutors are supposed to persuade judges that detention is necessary, and judges are supposed to weigh the presumption alongside an individualized assessment of an arrestee, the report also notes.

"It’s every judge’s nightmare that they release someone who then goes out and does some violent act," Kelley said. "As a judge you’re always grappling with concern over public safety versus wanting to release as many people as you safely can. And a lot of it, frankly, from the bench feels just like a guessing game.

"I do think one’s impulse is to be very conservative because you do take the public safety of your job very seriously and I guess it’s always a problem too that a judge doesn’t want to look bad," Kelley continued. "But one hopes that’s not the driving force behind one’s decision making."

She noted that federal court cases are often supposed to be more serious cases than state court.

Though not every case is, "We have pretty serious cases, and we want to get it right," Kelley added. "Judges are human."

Researchers found that federal judges regularly impose financial conditions for release that resulted in pretrial detention – essentially punishing people for being poor and disproportionately impacting people of color.

In 91 percent of cases where judges imposed financial conditions for release, they required arrestees to post a secured bond, the study found. In doing so, these judges reintroduced "the evils of cash bail systems" that the bail statute had sought to avoid, the report states.

The vast majority of the arrestees, or 95 percent, who had secured bonds imposed as a condition of release, were people of color. And across the four court-watched districts, arrestees didn't have the money to meet financial conditions in 36 percent of the cases where they were imposed.

Roughly one in five defendants in the study who were detained at the initial appearance remained in jail after a subsequent detention hearing because they couldn't afford to meet the financial conditions for release. Such a "de facto detention" order violates the Bail Reform Act, which states that "the judicial officer may not impose a financial condition that results in the pretrial detention of the person," the report found.

Financial conditions can only be used when an unsecured bond won't "reasonably assure" an arrestee's appearance and community safety; but even then, the report states, it needs to be a condition people can meet. Exorbitant financial conditions can't be used to address safety concerns.

Yet the study found that by imposing "inequitable and burdensome financial conditions," federal judges were "perpetuating a system in which money buys freedom and poverty ensures incarceration."

U.S. District Judge Reggie B. Walton of the District of Columbia said there are no monetary bonds in D.C., and he was surprised to hear that they were being utilized elsewhere under the Bail Reform Act, especially since the act itself was adopted to ensure that wealthy individuals couldn't simply buy themselves out of jail.

There was "the appropriate perception that monetary bonds were inappropriate because they do work an injustice to people who don't have monetary means," Walton said.

Defense attorneys rarely argued against the imposition of financial conditions for release, the researchers found. When it was imposed at the initial appearance, they only argued against it 2% of the time – and in those cases the arrestees were white.

Even the use of electronic and GPS monitoring can be cost prohibitive for some arrestees because they are often required to pay a daily fee to private companies to provide the technology, the report states.

Judges ordered electronic monitoring as a condition of release in 42 percent of cases examined by researchers.

Kelley, the chief magistrate judge in Boston, said no one in the district is detained on cash bail they can't make, though sometimes people must post a secured bond if they're a flight risk.

"If you have someone who flees, they might lose their home, but you're never going to require somebody to come up with a huge amount of cash to get out of jail," Kelley said. "You're just locking up poor people."

Walton added that in his 21 years on the federal bench he couldn't recall a time when somebody did not reappear in court after being released pending trial. 

"I'm sure it happens," Walton said, "but it's so infrequent that I can't even think of a situation."

Discussion Questions

  1. As the article indicates, in 1983, less than 24 percent of arrestees were jailed pretrial. By 2019, nearly 75 percent of them were. Comment on this dramatic increase in pretrial detention.

    This is obviously a dramatic increase in the percentage of arrestees who were jailed pretrial. This can only be explained (not necessarily rationalized) in terms of the “get-tough” approach to crime that began in the 1980s and the corresponding judicial view that the best way to deal with a criminal suspect pretrial is to jail them to ensure that they (a) do not commit additional crime and (b) appear for trial.
  2. As the article indicates, the amount of time presumably innocent people spend in pretrial detention has increased nearly sevenfold, from an average of less than two months in jail in 1985 to nearly a year now. Comment on this dramatic increase in time served in pretrial detention.

    Like the response to Video 1, Discussion Question 2 above, this is obviously a dramatic increase in the amount of time suspects spend in pretrial detention. Again, this can only be explained (not necessarily rationalized) in terms of the “get-tough” approach to crime that began in the 1980s and the corresponding view that the best way to deal with a criminal suspect pretrial is to jail them to ensure that they (a) do not commit additional crime and (b) appear for trial. It should also be added that the “get-tough” approach to crime puts considerable strain on the criminal justice system, including the ability of the system to ensure a “speedy” trial.
  3. In your reasoned opinion, is a cash bail system constitutional? More specifically, does a cash bail system meet the mandate of the Eighth Amendment to the U.S. Constitution, which states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” and the Fourteenth Amendment, which prohibits any state from denying any person within its jurisdiction the “equal protection” of the laws?

    This is an opinion question, so student responses may vary. In your author’s opinion, a cash bail system is unconstitutional, since it is “excessive” to a poor defendant under the Eighth Amendment to the U.S. Constitution and since does not provide equal protection of the law to a poor defendant as guaranteed by the Fourteenth Amendment. Put quite simply, there is a dramatic difference between a $10,000 bail requirement for a poor defendant and a wealthy one. In the first instance, $10,000 might be “all the money in the world,” while in the second instance, $10,000 might be a slight inconvenience. Arguably, a cash bail system criminalizes poverty.