"Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis"

The title of this post is the title of a remarkable 280-page report produced by Alison Siegler and the Federal Criminal Justice Clinic at the University of Chicago Law School. Here is the start of its executive summary:

Over thirty years ago, the Supreme Court held that people charged with federal crimes should only rarely be locked in jail while awaiting trial: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”  Given that everyone charged with a crime is presumed innocent under the law, federal judges should endeavor to uphold the Court’s commitment to pretrial liberty.

This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty.  This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process.  Our Clinic undertook an in-depth study of federal bond practices, in which courtwatchers gathered data from hundreds of pretrial hearings.  Based on our empirical courtwatching data and interviews with nearly 50 stakeholders, we conclude that a “culture of detention” pervades the federal courts, with habit and courtroom custom overriding the written law.  As one federal judge told us, “nobody’s . . . looking at what’s happening [in these pretrial hearings], where the Constitution is playing out day to day for people.”

Our Report aims to identify why the federal system has abandoned the norm of liberty, to illuminate the resulting federal jailing crisis, and to address how the federal judiciary can rectify that crisis.  This Report also fills a gaping hole in the available public data about the federal pretrial detention process and identifies troubling racial disparities in both pretrial detention practices and outcomes.

Federal pretrial jailing rates have been skyrocketing for decades. Jailing is now the norm rather than the exception, despite data demonstrating that releasing more people pretrial does not endanger society or undermine the administration of justice. Federal bond practices should be unitary and consistent, since the federal bail statute — the Bail Reform Act of 1984 (the BRA) — is the law of the land and governs nationwide. Yet this 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.