It’s like the marketing slogan often emblazoned on cop cars, “To Serve and Protect.” People take this very seriously, not realizing it carries about as much weight as “New and Improved.” When it comes to criminal law, the phrase so often used is “worst of the worst,” not because it has any meaning but because it sells laundry detergent.
The Bail Reform Act clearly favors pretrial release in most cases. At the Detention Hearing, a person must be released unless “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). But the Act contains a rebuttable presumption of detention for some crimes—most federal drug offenses and § 924(c) gun charges.
This comes from an academic polemic, Freedom Denied, arguing that federal judges do bond all wrong, detaining people contrary to law. While that may well be, it doesn’t make the case to anyone not already dedicated to the outcome. One aspect of the BRA is that there is the presumption of detention in, inter alia, drug cases, as anyone who has defended a delightful drug conspiracy is well aware. To set the stage, there tend to be a few common denominators in these cases.
First, the top name on the indictment, the jefe, and the bottom name, the runner, are all charged with being part of the same conspiracy, such that everyone is responsible for the same the ten kilos of cocaine that were once mentioned by the CI but may never have existed. Second, they tend to be Hispanic because coke doesn’t come from Sweden. While everybody knows that the guy on the bottom is the runner and not the boss, the prosecution needs the bottom guy to flip on the guy above him or they might not convict. The government really hates not convicting.
At arraignment after the takedown in a drug case, the case is put over for a detention hearing. That’s where the presumption gets sticky.
This presumption was intended to apply extraordinarily narrowly:
Congress intended this presumption of detention to capture only the “worst of the worst” offenders. “[L]egislators wanted the drug presumption to prevent rich people suspected of high-level drug trafficking from fleeing.” But in practice, the presumption now applies in a high percentage of federal cases—including 93% of federal drug cases—very few of which pose any special risks of flight or recidivism.
First, Congress doesn’t exactly “intend” anything because Congress consists of 535 people, many of whom either have different intentions or even no intention at all other than going along with the party elders. People might be a lot less supportive of laws that were sold as “catching a lot of guys who don’t deserve it, but we can’t figure out how to write a better law that might not let some bad dude go and embarrass us.”
Second, congressional majorities express their “intent” to convince the public to accept, if not endorse, their laws. If a sponsor says it’s only about detaining the “worst of the worst,” they can write the statute to make it so to the extent that’s possible. But when a statute covers everybody, “lumpy laws” as Rachel Berkow called it, the statutory coverage doesn’t change because of the content of a press release.
As a legal matter, the presumption should have, at most, a limited effect:
[C]ase law emphasizes two checks that the BRA and the Constitution impose on the presumption: (1) there is an easy-to-meet standard for rebutting the presumption and the prosecution always bears the burden of persuasion, and (2) the presumption alone does not warrant detention and must always be weighed along with other factors.
An “easy-to-meet standard” is the sort of thing that almost no one who has ever practiced law would say with a straight face. The point of a presumption is that it sets the baseline, what happens in the absence of a showing otherwise. For most offenses, the baseline is release. For drugs, it’s detention. The reason isn’t often said aloud, but it’s no big mystery. Many federal drug defendants made a lot of money doing the dirty and either aren’t citizens or are more than happy to take their rubber bands and suitcase and live out the rest of their life in a lovely seaside home where they don’t speak English. It beats the hell out of the alternative, life plus cancer.
But what about rebutting the presumption? Nobody really knows what that means, how to do so or what the “easy-to-meet standard” is because neither statute nor caselaw informs lawyers or judges what evidence is sufficient to do the trick.
But our study revealed that judges often eschew these legal requirements in favor of misguided courtroom practices:
Even though judges have the power and legal responsibility to limit the impact of the presumption of detention, they seldom do. Instead, our research shows that judges routinely ignore the legal checks that the BRA provides and give the presumption of detention more weight than the law allows.
This is where “research” does too much heavy lifting. If you just run the numbers of drug conspiracy defendants detained and released, and assume that the presumption should be easily overcome because reasons, the stats are going to look pretty nasty for federal judges. But do the nuts and bolts in the trenches bear any of this out?
Is it sufficient that the defendant has a loving wife (or baby mama) who appeared at the detention hearing when the defendant isn’t here lawfully, has no legitimate job, even if he had authorization to work, to support his family and himself, has 12 priors for drugs with three bench warrants, and lives in an apartment under some other guy’s name? This doesn’t describe every defendant, obviously, but pieces of it describe many. Where does that fit into the research? Yet, it’s what lawyers and judges deal with in the trenches.
When we asked a judge from a district where we had court-watched why it is so rare for courts to find the presumption of detention rebutted, the judge explained: “I don’t understand [the presumption]…. I really don’t think judges, including this judge, even though I did some research into trying to understand what it means—what does it mean? What do you need to provide to rebut it? I don’t think that’s litigated enough.
To his credit, at least this judge recognizes that he ruling and rolling without anything more than his gut to go on. But to argue that judges are violating the law when the law provides for a presumption of detention and little more is to beg the question. If there’s a line to be drawn, draw it. Otherwise, we’re all trying to grope around in the dark, as there’s no other option under the law as it now stands.
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