Strategies for Federal Pretrial Release

Strategies for Federal Pretrial Release

When an individual is arrested on federal charges, one of the first big decisions is whether or not they will be released pending trial. This pretrial release determination can have huge implications for the defendant, their family, and the community. As with most things in law, pretrial release involves balancing important interests – public safety and flight risk on one hand, and civil liberties on the other. There are no easy answers, but judges have several tools at their disposal to try to strike the right balance. This article will examine some of the key strategies and considerations around federal pretrial release.

The Bail Reform Act

A key law governing pretrial release in federal cases is the Bail Reform Act of 1984. This law gives judges several options for release, including releasing the defendant on their own recognizance (without money bail), imposing conditions like GPS monitoring, requiring a financial bond, or detaining high-risk defendants. The law directs judges to choose the least restrictive conditions that will reasonably assure community safety and the defendant’s return to court. Detention is supposed to be a last resort.

In making pretrial release decisions, judges are supposed to consider factors like the nature of the charges, the weight of evidence, the defendant’s history and characteristics, and the nature of the danger they may pose if released. The law provides a presumption of detention for defendants charged with certain serious drug, gun, or terrorism offenses. But for most charges, pretrial release is favored.

Setting Appropriate Conditions

Federal judges have a lot of discretion in setting pretrial release conditions. They can require things like regular check-ins with pretrial services, GPS monitoring, drug testing, mental health treatment, surrendering passports, avoiding contact with victims/witnesses, and home detention. The key is imposing the least restrictive conditions that will reasonably assure community safety and return to court.

For low-risk defendants, release on just a promise to appear may be appropriate. Moderate conditions like check-ins and drug testing can provide accountability without being too onerous. For higher-risk defendants, measures like GPS monitoring or home confinement may be justified. The important thing is that conditions are tailored to each defendant’s specific situation. Broad brush approaches often go too far.

Financial Bonds

One of the most controversial pretrial release issues is whether and when to require a financial bond. The Bail Reform Act allows judges to set a money bond if no other conditions can reasonably assure appearance and community safety. But bonds must not be set so high as to result in detention. Unfortunately, high money bonds have led to many low-risk defendants being detained pretrial only because they are poor.

To address this inequity, some federal courts are moving away from money bonds toward greater use of risk assessment tools and non-monetary conditions. Unnecessary money bonds disproportionately impact minorities and the poor. But for some serious charges, a substantial financial bond may be appropriate to incentivize appearance. The key is only imposing money bonds where truly needed, not as a matter of routine.

Risk Assessment Tools

In recent years, there has been a growing focus on using data and risk assessment tools to guide federal pretrial release decisions. Research has found that subjective risk determinations by judges often lead to unnecessary detention. Data-driven risk assessment tools can provide judges with valuable information about an individual defendant’s statistical risk of non-appearance or re-arrest if released.

Over 20 federal districts now use the Public Safety Assessment, a pretrial risk tool that looks at factors like age, criminal history, and current charges. The tool categorizes defendants as low, moderate or high-risk. This data supplements (but does not replace) judicial discretion. While not perfect, carefully designed risk assessment tools can promote greater objectivity and fairness in pretrial decisions. Critics argue they can perpetuate racial bias, so it’s crucial the tools are validated to avoid disparate impacts.

Avoiding Unnecessary Detention

The Bail Reform Act is premised on a preference for pretrial release in most cases. Detention is supposed to be rare and limited to cases where community safety or flight risk is so severe that no conditions can mitigate it. But in practice, federal pretrial detention rates have soared, with over 70% of federal defendants detained pending trial. Many are non-violent, first-time offenders who likely could be safely released.

Studies suggest excessive pretrial detention results more from risk aversion and bias rather than true danger or flight risk. The COVID pandemic has underscored the urgent need to reduce overuse of pretrial detention, which disproportionately impacts minorities and the poor. While some defendants clearly warrant detention, judges must be vigilant about only depriving liberty in genuine cases of high risk. Pretrial detention should be a last resort, not the default.

The Importance of Representation

A major factor impacting pretrial release is whether the defendant has legal representation at the initial appearance. Without a lawyer, an arrestee is extremely unlikely to be released on recognizance. In many cases, they will remain jailed for weeks or months before a lawyer can advocate for their release. Early representation is thus critical.

Some federal districts have pretrial services provide basic advice or have federal defenders at initial appearances. Others rely on volunteer attorneys. The most effective approach is a funded counsel program at initial appearances. Lawyers can gather facts, dispute prosecution claims, and advocate for fair release conditions. Access to counsel is fundamental to avoiding unwarranted detention.

Reforming Money Bail

Excessive money bail continues to be a major driver of mass incarceration. Many jurisdictions are exploring ways to reduce reliance on money bail. Key reforms include ending cash bail for low-level charges, tying bail amounts to income, and greater use of unsecured bonds or non-monetary conditions. To mitigate bias, some localities now use fixed bail schedules rather than judicial discretion.

While state and local courts handle most bail hearings, federal policymakers can advance reform by providing guidance, incentives and model programs. For example, federal grants for pretrial innovations could support expanded counsel programs and risk assessment tools. Sharing data on effective alternatives to money bail is another way federal agencies can promote reform.

Expanding Supervised Release

For defendants who require some accountability, supervised release allows them to return home with appropriate conditions like reporting and drug testing. This is far less restrictive than jail, while still providing monitoring. The federal system has generally underutilized supervised release, preferring detention.

But expanding supervised release could safely reduce overuse of detention, while avoiding the pitfalls of money bail. Federal policymakers should assess current capacity and identify where expanded supervised release programs may offer a reasonable alternative to detention. State and local systems have much to teach.

Improving Pretrial Services

A well-resourced pretrial services agency is indispensable to minimizing detention rates. Pretrial services provides crucial information to judges on defendant risk profiles, appropriate release conditions, and community supervision capacity. Without quality pretrial services, unnecessary detention tends to rise.

But federal pretrial services suffer from understaffing, underfunding, and lack of standards. To promote fairer release decisions, Congress should invest in expanded federal pretrial services. Enhanced training, staffing, risk assessment and data analysis would improve recommendations to judges. State and local pretrial systems demonstrate the value of robust pretrial services.

Promoting a Culture of Fairness

Perhaps most important is instilling a culture that values pretrial release as the norm. All actors in the system – judges, prosecutors, pretrial officers, and defense counsel – must view detention as a carefully limited option of last resort. There are promising local innovations, like prosecutor policies against seeking detention without extraordinary cause.

On the federal level, the judiciary should underscore a preference for release through training, guidance and monitoring. And Congress should exercise oversight on detention rates and use of restricted housing for pretrial detainees. Culture starts at the top. By promoting fairness values at every level, federal leaders can work to end the overuse of pretrial detention.

The stakes surrounding pretrial release are enormously high, both for defendants and communities. There are no easy solutions, but relying more on individualized evidence-based risk assessment, expanding non-monetary conditions and support services, reducing unnecessary financial bonds, and instilling a culture of fairness hold promise for reforming federal pretrial practice. With care and commitment, the federal system can model ways to limit detention without sacrificing public safety.