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January 19, 2022

Guest posts on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

6a00d83451574769e202788010ea87200d-320wiI hope readers recall the series of guest posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings."  Not too long ago, Alison wrote to me to highlight a big new Seventh Circuit ruling on the Bail Reform Act that related to another focus of her work.  I suggested that she do another guest post series on the ruling because this was a legal space I know little about.  She has prepared two long posts on the topic, and here is the first:

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GUEST BLOG POSTS RE WILKS AND THE PRESUMPTION OF DETENTION by ALISON SIEGLER

PART I

This is the first of two guest posts discussing a groundbreaking opinion that addresses the Bail Reform Act’s “presumption of detention.”

The BRA’s presumption of detention applies to “nearly half of all federal criminal cases and to 93 percent of all drug cases.” Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); 18 U.S.C. § 3142(e)(2)–(3). The most common types of cases in which the presumption applies are drug cases, § 924(c) gun cases, and minor victim cases. A study from the Administrative Office of the United States Courts finds that the “presumption of detention . . . is driving high federal detention rates,” and that in practice, the presumption “has become an almost de facto detention order.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 FED. PROBATION 52, 56, 61 (2017).  The same study found that “the presumption increases the detention rate without advancing community safety. Rather than jailing only the worst of the worst, the presumption over-incarcerates the lowest-risk offenders in the system.” Siegler & Zunkel, supra, at 50 (citing Austin, supra, at 57). “Now, with the presumption as a driving force, federal pretrial detention rates have skyrocketed, with three in four people jailed before trial — a 75 percent detention rate that falls disproportionately on people of color. This is mass incarceration in action.” Alison Siegler & Kate Harris, How Did the Worst of the Worst Become 3 Out of 4?, N.Y. TIMES (Feb. 24, 2021).  Courts often assume that the presumption ties their hands, and defense attorneys sometimes waive the right to seek release in presumption cases because challenging pretrial detention feels futile.

An important recent Seventh Circuit opinion reminds us that is not how the presumption is supposed to operate as a matter of law. United States v. Wilks, 15 F.4th 842, 844 (7th Cir. 2021) (reversing a district court’s revocation of pretrial release because “the judge did not hew to the statutory framework in making the revocation decision”). Wilks illuminates the operation of the presumption in a way that enables lawyers to push back on the presumption’s worst manifestations.

Wilks clarifies numerous key aspects of the limits of the § 3142(e) presumption of detention.

First, even when a presumption of detention is triggered, “the burden of persuasion always rests with the government.” Wilks, 15 F.4th at 846–47.

Second, the presumption is intended to be easy to rebut. See 18 U.S.C. § 3142(e)(3) (“Subject to rebuttal by the person . . .”); see also Wilks, 15 F.4th at 846 (“A defendant charged with a serious drug crime . . . is subject to a rebuttable presumption.”).

Third, “an unrebutted presumption is not, by itself, an adequate reason to order detention. Rather, the presumption is considered together with the factors listed in § 3142(g).” Wilks, 15 F.4th at 847 (citation omitted).

Fourth, once the presumption is rebutted, it carries a lot less weight.

January 19, 2022 at 10:43 AM | Permalink

Comments

Wonderfully insightful and helpful, as always! I am a defense lawyer and clinical professor at Chicago Kent

Posted by: Richard kling | Feb 3, 2022 4:42:19 PM

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