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

I 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.

• Even in a presumption case, the defense never bears the ultimate burden of persuasion or proof. That is, the defense never has to persuade the judge that there exist conditions of release that will reasonably assure his or her appearance and the safety of the community.  See 50 GEO. L.J. ANN. REV. CRIM. PROC. 404 (2021) (“The presumptions of detention shift the burden of production to the defendant, but the government retains the burden of persuasion.”).
• Rather, the burden of persuading the judge that no conditions of release exist that will reasonably assure the accused’s appearance and the safety of the community continues to rest at all times with the government, despite the presence of the presumption. See Wilks, 15 F.4th at 846–47; see also Dominguez, 783 F.2d at 707 (“[T]he burden of persuasion remains with the government” at all times and never shifts to the defense); Jessup, 757 F.2d at 381 (“[T]he burden of persuasion does not shift.”); Alatishe, 768 F.2d at 254 (“[I]t [i]s not the responsibility of the [defendant] to carry the Government’s burden of proof or persuasion.”).

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.”).

• Rebuttal, in theory, should be exceedingly easy, as the presumption “places a light burden of production on the defendant” to rebut the presumption. Wilks, 15 F.4th at 846 (emphasis added); see also United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (“The burden of production is not a heavy one to meet.”); United States v. Jessup, 757 F.2d 378, 380–84 (1st Cir. 1985) (holding that to meet the burden of production required for rebuttal, the defendant need only produce “some evidence” under § 3142(g)); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (same); United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985) (same); 50 GEO. L.J. ANN. REV. CRIM. PROC., supra, at 404 (“Once defendants ‘[come] forward with some evidence that [they] will not flee or endanger the community if released,’ the presumption of flight risk and dangerousness is rebutted.” (quoting Dominguez, 983 F.3d at 707) (bracketed alteration in original)).
• The defense rebuts the presumption and meets its burden of production by presenting “some evidence” related to the § 3142(g) factors, including any “evidence of economic and social stability.” Dominguez, 783 F.2d at 707; see also Siegler & Zunkel, supra, at 52 & n.110 (collecting cases). “Once this burden of production is met, the presumption is ‘rebutted.’” Dominguez, 783 F.2d at 707.
• Any evidence under § 3142(g) rebuts the presumption! If a judge finds otherwise, that violates the statute and caselaw.
  • Examples in Dominguez of the kind of evidence that rebuts the presumption include “evidence of their marital, family and employment status, ties to and role in the community, clean criminal record and other types of evidence encompassed in § 3142(g)(3).” Dominguez, 783 F.2d at 707; see also Jessup, 757 F.2d at 384.
• The defense does not have to “‘rebut’ the government’s showing of probable cause to believe that [the accused] is guilty of the crimes charged,” nor do they have to “demonstrate that [the type of crime charged] is not dangerous to the community.” Dominguez, 783 F.2d at 706.
  • For example, someone charged in a drug case or a § 924(c) gun case does not have to prove that distributing drugs or possessing a firearm is not dangerous.

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).

• This is a hugely important statement of the law.  Very few judges and practitioners understand this.  Even if the defense does not carry its light burden of production by not coming forward with some evidence under § 3142(g) that rebuts the presumption, that lack of rebuttal does not, standing alone, authorize detention in a presumption case.  The government continues to bear the “burden to justify detention” by establishing that there are no conditions of release that will reasonably assure the accused’s appearance and the safety of the community. Id.  And the judge must still analyze all of the factors listed in § 3142(g) in determining whether the government has met that burden.
• Whether or not the defense rebuts the presumption, the ultimate burden of persuasion and proof always rests with the government to justify detention and to establish that there are no conditions short of detention that will reasonably assure the accused’s appearance in court and the safety of the community.  See GEO L.J., supra, at 404 (“Even when a presumption of detention applies, the government continues to bear the ultimate burden of proving that no conditions of release will reasonably assure the defendant’s appearance and the safety of the community.”). If the government does not carry that burden, the law requires the judge to release the accused on bond.
  • Even if the presumption is unrebutted, “[i]f the government does not carry its burden to justify detention, the judge must order the defendant’s release pending trial subject to the least restrictive combination of conditions that will reasonably assure his appearance and the safety of the community. 18 U.S.C. § 3142(c)(1)(B).” Id.
  • See also Chimurenga, 760 F.2d at 405, 403 (holding that even in a presumption case, “the government continue[s] to have the burden to prove by clear and convincing evidence that [the defendant is] dangerous” and that there are no conditions that will reasonably assure their appearance and the safety of the community despite all of the evidence of social stability the defendant presents); United States v. Munchel, 991 F.3d 1273, 1289 (D.C. Cir. 2021) (Katsas, J., concurring in part) (clear and convincing evidence is “a heightened standard of proof under which the fact finder must ‘give the benefit of the doubt to the defendant.’” (citation omitted)).
• In fact, if the judge shifts the burden of persuasion to the accused, that arguably violates due process because the constitutionality of the presumption depends in part on the fact that the defense does not bear the burden of proving that the accused is not a danger or a flight risk. See, e.g., Jessup, 757 F.2d at 386 (“Given [inter alia] . . . the fact that the presumption does not shift the burden of persuasion, . . . the presumption’s restrictions on the defendant’s liberty are constitutionally permissible.”). The canon of constitutional avoidance thus strongly militates in favor of the Wilks court’s interpretation of this meaning of the presumption.

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

• The rebutted presumption remains in consideration but is just one factor among many. “While the rebutted presumption does not disappear, a judge must weigh it against all of the mitigating evidence that the defense presents, and assign it no more weight than any other § 3142 factor.” Siegler & Zunkel, supra, at 52 (citing Jessup, 757 F.2d at 384).
• When the defense rebuts the presumption, it has demonstrated that the general purpose animating the presumption is inapplicable in that particular case. So even if drug offenses in general raise a presumption of dangerousness, someone who has rebutted the presumption has introduced evidence that his or her own personal risk of continuing to sell drugs is lower.