Freedom Denied How the Culture of Detention Created a Federal Jailing Crisis
In the first comprehensive national investigation of federal pretrial detention,Professor Alison Siegler and theFederal Criminal Justice Clinic seek to understand why federal jailing rates are astronomically high, with three out of every four people jailed before trial—far more than in state systems.
The answer is shocking.
In Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis, the Clinic finds that federal judges routinely violate the very bail laws that they are tasked with upholding, which drives up detention rates, jails people for poverty, and exacerbates racial disparities. Courtwatching data and first-hand accounts from judges and lawyers reveal that a culture of detention pervades federal courtrooms. Courthouse custom overrides the written law, eroding the presumption of innocence.
The result is a federal jailing crisis that fuels mass incarceration and inflicts lasting harms on presumptively innocent people, families, communities, and society. Federal judges have a responsibility to vindicate the rights of the accused and restore the norm of liberty enshrined in federal law.
Freedom Denied How the Culture of Detention Created a Federal Jailing Crisis
Pretrial jailing is now the norm rather than the exception.
Figure 1: Federal Pretrial Detention Rates Have Skyrocketed Since the BRA Was Enacted (1983-2019).
1983: 23.8%, 1985: 29%, 1993: 42%, 1994: 42%, 1995: 43%, 1996: 44%, 1997: 50%, 1998: 51%, 1999: 51%, 2000: 52%, 2001: 53%, 2002: 55%, 2003: 57%, 2004: 60%, 2005: 61%, 2006: 61%, 2007: 62%, 2008: 63%, 2009: 66%, 2010: 66%, 2011: 66%, 2012: 72%, 2013: 72%, 2014: 73%, 2015: 73%, 2016: 73%, 2017: 72%, 2018: 75%, 2019: 74.8%

“Although the existing evidence shows that the federal bail system is in crisis, it does not show why or how that crisis is occurring.”

“This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty."

Finding & Recommendation 1:

Judges Must Follow the Correct Legal Standard at the Initial Appearance Hearing and Stop Jailing People Unlawfully.
Figure 5: Problematic Feedback Loop at Initial Appearance
The proscecutor cites improper grounds for detention at initial appearance. The defense attorney does not object. The judge neither questions the prosecutor nor adheres to the statutory requirements. Some arrestees are jailed unlawfully, without a valid basis under section 3142f. Judges don't realize that they are jailing arrestees unlawfully, the practice further diverges from the law, and pretrial detention rates rise.

“Our primary explanation for the legal violations documented in this Report is the phenomenon we have labeled the culture of detention. . . . Even when the [statute] contains clear instructions, judges and prosecutors frequently ignore those instructions in favor of longstanding district practices, substituting courtroom habits for the plain text of the statute and overincarcerating people in the process. . . . [O]ne judge we interviewed justified those deviations by saying: " Oh, that’s just the way we do it. "

Figure 9: At the Initial Appearance, Prosecutors Regularly Request Detention on Improper Grounds and Judges Detain People Unlawfully.

“Our most troubling finding was that, in 12% of Initial Appearances where the prosecutor was seeking detention, judges detained people illegally. . . . Such unlawful detentions are the inevitable consequence of the Initial Appearance feedback loop we identify.”

233 out of 243 cases where the prosecutor sought detetions. In 81% of these cases, the prosecutor failed to cite a valid statutory basis for detention (189 out of 233). Judges detained arrestees in over 99% of Initial Appearances where the prosecutor failed to cite a valid basis for detention. In 12% of these detetions were illegal under the BRA as no statutory basis for detention existed under section 3142f (27 out of 233). 81% of these individuals were detained for the duration of the case (22 out of 27).
Figure 13: Unlawful Detentions Are Carried Out in a Racially Disparate Way.
56% of Black arrestees detained illegally, 45% of Latino arrestees detained illegally, 21% of white arrestees detained illegally

“Moreover, these unlawful detentions were carried out in a racially disparate way. . . . The unlawful detentions we observed are just the tip of the iceberg. . . . This is not just an isolated situation in which a few judges or attorneys slightly misunderstand the law; rather, there is a pervasive, systemic deprivation of liberty that is not authorized by statute or case law.”

Finding & Recommendation 2:

Judges Must Stop Unlawfully Jailing Poor People Without Lawyers at the Initial Appearance Hearing.
Figure 6: There Is a Nationwide Access-to-Counsel Crisis in the Federal System.
More than one quarter of the 94 federal district courts nationwide do not ensure that every single arrestee is reppreseted by a lawyer the initial appearance.

“During our courtwatching, we observed judges violating federal law by holding uncounseled Initial Appearances where indigent individuals appeared pro se across from federal prosecutors, and by jailing indigent individuals without first appointing them a lawyer.”

Figure 18: When Arrestees Were Forced to Proceed Without Counsel at Their Appearance, There Was a Dramatic Increase in Pretrial Detention.

“In our study, every arrestee who was deprived of a lawyer at the Initial Appearance was jailed, and nearly all were Black or Latino.

Fully represented individuals were detained 67% of the time. Partially represented individuals were detained 89% of the time. All unrepresented individuals were detained.

Finding & Recommendation 3:

Judges Must Follow the Correct Legal Standard in Presumption-of-Detention Cases to Reduce Racial Disparities and High Federal Jailing Rates.
Figure 22: The Presumption of Detention May Contribute to Racial Disparities in the Federal System.
Judges detained people of color at higher rates than white individuals in presumption cases. The detention rate involving people of color was 73%, and 68% for white individuals.

“[W]hen we observed judges and prosecutors making serious legal mistakes regarding the presumption, the arrestee was always a person of color."

Finding & Recommendation 4:

Judges Must Stop Unlawfully Jailing People for Poverty Through Excessive Financial Conditions.
Figure 23: Judges Impose Burdensome Financial Requirements and Jail People for Poverty.
In 37% of cases in our study, judges imposed financial conditions (127 out of 343). In 91% of cases where financial conditions were imposed, judges required arrestees to post a secured bond (116 out of 127). Arrestees did not have the money to meet financial conditions in 36% of cases (46 out of 127). For these individuals, the financial conditions acted as de facto detention orders, in violation of the law.

“Our study found that federal courts regularly impose inequitable and burdensome financial conditions, perpetuating a system in which money buys freedom and poverty ensures incarceration."

Figure 26: Excessive Financial Conditions of Release Have a Disproportionate Racial Impact.
95% of secured bonds were imposed against people of color.
Freedom Denied How the Culture of Detention Created a Federal Jailing Crisis