Tuesday, December 19, 2017

Taking detention decisions seriously

Yesterday, the Tenth Circuit undid a second detention order in as many months. As we blogged about earlier, last month in United States v. Ailon-Ailon, the Court vacated an illegal-reentry defendant's detention order after holding that the risk of involuntary removal by ICE does not establish a risk of flight under the Bail Reform Act.

In United States v. Mobley, the Tenth Circuit sent back an international-parental-kidnapping defendant's detention order after finding it flawed in two ways:

First, the district court rested its detention order on its finding that the defendant posed a flight risk without considering whether any release conditions would assure her appearance at trial.

Second, the district court failed to take into account the defendant's proposed affirmative defense when considering the nature of the offense.

We already know that pretrial detention increases our clients' exposure to conviction, longer sentences, and recidivism. Thanks to the Tenth Circuit's enforcement of the Bail Reform Act, now we have a few more tools with which to fight that detention.

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