Criminal Defense Lawyers

How the Bail Reform Act Affects Plea Agreements and Cooperation

How the Bail Reform Act Affects Plea Agreements and Cooperation

The Bail Reform Act, passed by Congress in 1984, made some big changes to how federal courts handle bail and pretrial detention. One of the main things it did was give judges more power to detain defendants before trial if they are considered dangerous or a flight risk. This has had some important effects on plea bargaining and cooperation in federal criminal cases.

One of the biggest impacts is that it gives prosecutors more leverage to get defendants to plead guilty early on. Here’s how it works: The Bail Reform Act allows prosecutors to file a motion asking for pretrial detention at the defendant’s first appearance in court. If the judge agrees, the defendant can be detained without bail until the trial. This means the defendant has a big incentive to plead guilty quickly so they can get their sentence started and get out of jail sooner.

Prosecutors will sometimes use the threat of filing a detention motion as a bargaining chip. They might say something like “If you agree to plead guilty now, I won’t file the detention motion and you can stay out on bail until sentencing. But if you refuse the plea, I’m going to have you detained until trial.” Facing months or years in jail before even being convicted is scary, so this can push defendants towards taking a plea.

In drug and gun cases especially, prosecutors will often ask for detention right off the bat. These defendants know they are facing an uphill battle to get out on bail. So if the prosecutor offers a quick plea deal, it becomes very tempting to take it and avoid pretrial detention.

The Bail Reform Act also helps prosecutors get cooperation from defendants who have valuable information. Defendants who “cooperate” agree to provide evidence and testimony against other criminals in exchange for leniency. This helps prosecutors build cases against high-level criminals using insider information.

Here’s one way it works: A drug dealer gets arrested and is facing 10 years in prison. The prosecutor says he will file a motion for pretrial detention unless the defendant agrees to cooperate. Facing years in jail before even going to trial, the defendant agrees to start cooperating. For low-level criminals, this coerced cooperation is one of the main ways prosecutors get information and work their way up the chain.

The Key Parts of the Bail Reform Act

To really understand how the Bail Reform Act changed things, let’s look at some of the key parts of the law:

• Allowed pretrial detention for defendants considered dangerous or likely to flee – This was the big change that gave prosecutors leverage.
• Established detention hearings where prosecutors can argue for detention – Previously prosecutors had no say in bail decisions.
• Shifted burden of proof to defendant to show why they should be released – Under prior law, burden was on prosecution to justify detention.
• Allowed appeal of release orders – Prosecutors can now challenge release decisions.
• Established factors judges consider for detention – Danger to community and risk of flight.

By giving prosecutors a seat at the table and the ability to appeal, the Bail Reform Act handed them much greater influence over pretrial release. And the provisions allowing detention based on dangerousness and flight risk gave them the tools to detain defendants and gain leverage.

How Pretrial Detention Pressures Defendants

Let’s look closer at how the threat of pretrial detention can pressure defendants into pleading guilty or cooperating:

• Incentive to plead guilty early – Detention means losing job, custody, etc. Defendants want to plead quickly to get sentence started.
• Avoids “trial penalty” – Pleading guilty early gets a better deal than losing at trial.
• Coercive tool for prosecutors – They explicitly threaten detention to gain pleas and cooperation.
• Weakens defendant’s bargaining position – Hard to mount defense from behind bars.
• Causes innocent defendants to plead guilty – Get out of jail even if they didn’t do it.

While prosecutors feel this leverage is necessary, there are also concerns it leads to unjust outcomes. Over 90% of federal criminal cases end in plea bargains rather than trials. And pretrial detention is a major factor influencing those outcomes.

How Pretrial Detention Induces Cooperation

In addition to gaining pleas, prosecutors also rely on pretrial detention to gain cooperation from defendants in exchange for leniency. Here are some ways it helps them “flip” defendants:

• Threaten detention for uncooperative defendants
• Offer release as incentive for cooperation
• Make cooperation a condition of pretrial release
• Use detention to soften up reluctant defendants
• Leverage desire to get out of jail quickly

Prosecutors argue detained defendants provide the most valuable cooperation since they are insiders. But critics say it leads defendants to provide false information just to get out of jail.

Alternatives to Detention for Leverage

Some reform advocates argue there are better alternatives than pretrial detention for gaining pleas and cooperation:

• Fairer plea deals – Reasonable offers may work better than coercion.
• Sentencing differential – Big difference between plea and trial sentences.
• Non-custody leverage – Fines, probation, collateral consequences.
• Charging leniency – Reducing or dropping charges.

These incentives may help reduce over-reliance on pretrial detention and make plea bargaining and cooperation less coercive.

Key Takeaways

Here are some of the key points about how the Bail Reform Act impacts pleas and cooperation:

• Gives prosecutors more power to detain defendants before trial.
• Detention incentivizes quick guilty pleas to start sentence sooner.
• Prosecutors use detention as threat/incentive for pleas and cooperation.
• Critics argue it leads to false pleas and unreliable cooperation.
• Reform advocates say detention should be last resort leverage.

The Bail Reform Act was intended to detain dangerous defendants, but has become a tool for prosecutors to gain leverage. Understanding its impacts is key for anyone interested in fixing flaws in the plea bargaining system.