Tuesday, October 29, 2019

Pretrial release: dealing with the presumption

Thanks to everyone who attended the Kansas FPD’s pretrial release conference in Lawrence last week (and congratulations again, Laura Shaneyfelt). We’re marking the occasion with some posts highlighting issues in pretrial release litigation, and will start by discussing the presumption.

As you know, 18 U.S.C. § 3142(e) creates a presumption of detention in certain cases. When the presumption of detention applies, “the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991). When the “defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.” Id. This raises two questions:

Can detention be based solely on the presumption?

One of the first Kansas district courts to take a deep dive into the Bail Reform Act responded with an emphatic no. In United States v. Cox, 635 F.Supp. 1047 (D. Kan. 1986), the court found that heavy reliance on the presumption would render the Bail Reform Act unconstitutional. While “the Act’s provisions allowing for pretrial detention are constitutional, that constitutionality is impinged when the government seeks to justify detention solely by virtue of the presumption.” Id. at 1051. Consequently, “the presumption, even unrebutted, is insufficient standing alone to meet the burden of clear and convincing evidence.” Id. at 1052.

How much evidentiary weight should the rebutted presumption carry?

We say none; the research says we’re right. The “presumption does a poor job of assessing risk, especially compared to the results produced by actuarial risk assessment instruments such as the PTRA.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 Federal Probation 52, 61 (Sep. 2017). The presumption fails to “correctly identify defendants who are most likely to be rearrested for any offense, rearrested for a violent offense, fail to appear, or be revoked for technical violations.” Id. at 60. So when you’ve rebutted the presumption, argue the empirical evidence. Even in cases where the presumption initially applied, that fact tells the court nothing about whether your client is a danger to the community or poses a serious risk of flight.

---Kirk Redmond

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