The Rising Federal Pretrial Detention Rate, In Context

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13September 2018The Rising Federal Pretrial DetentionRate, in ContextMatthew G. Rowland1Chief, Probation and Pretrial Services OfficeAdministrative Office of the United States Courts2THE FEDERAL PRETRIAL1 detention2 ratehas been steadily increasing. Twenty yearsago, less than half of defendants were heldpending trial; now the figure is nearly 75percent (Figure 1).3 The cost of this detention, in monetary terms, is approaching 1.5billion a year (Department of Justice), andthere are human costs as well. Researchershave connected pretrial detention to wrongfulconvictions, potentially longer-than-necessaryprison sentences and higher recidivism rates(Gupta, Hansman & Frenchman) (Oleson,VanNostrand & Lowenkamp).41The author would like to thank the followingpeople for their assistance in developing this article:Brian Christ, Chief U.S. Pretrial Services Officerfor the District of Oregon; Roberto Cordeiro, ChiefU.S. Pretrial Services Officer for the Eastern Districtof New York; John Fitzgerald, Deputy Chief of theAO’s Probation and Pretrial Services Office; CharlesRobinson, Division Chief, AO’s Probation andPretrial Services Office; Stephen Vance, Chief, AO’sCriminal Law Policy Staff; William E. Hicks, Jr.,Administrator, AO’s Probation and Pretrial ServicesOffice; Thomas H. Cohen, Analyst, AO’s Probationand Pretrial Services Office; and Christopher T.Lowenkamp, Analyst, AO’s Probation and PretrialServices Office.2The views expressed in this article are the author’salone and do not necessarily reflect those of theAO, the Judicial Conference of the United States,its committees, or the federal probation and pretrialservices system.between correlation and causation, and that is truein terms of the relationship between pretrial detention and subsequent outcomes in criminal cases.Clearly, one interpretation is that pretrial detentionhas a corrosive effect on defendants—separating them from their legal team, family, and otherpotentially prosocial connections in the community. Detention also forces defendants, ironically,to associate with others involved in the criminaljustice system, potentially creating negative peernetworks. Another argument, however, is thatjudges are identifying those at higher risk at thepretrial stage, observing risk not fully captured byactuarial assessment devices. Consequently, thenoted detention, sentence, and recidivism issuesThe demographic disparity among thosedetained is yet another concern. Men aredetained twice as often as woman. Blacks andNative Americans are detained more oftenthan Asians, Pacific Islanders, and whites.Hispanics are detained at substantially greaterrates than non-Hispanics. Similarly, non-citizens are detained at much greater rates thanU.S. citizens (Figure 2). Those differences mayraise concerns regarding judges’ objectivity,may flow from defendants’ preexisting level of riskrather than from the detention itself.FIGURE 1Federal Pretrial Detention Rate80%70%60%50%40%30%3Source: Judicial Business of the United States Courts and AOUSC Decision Support 95199419931992It is often difficult in research to distinguish19911990420%19891988All AO data cited in this article, unless otherwisenoted, refers to cases processed in the 12-monthperiod ending March 31, 2018 or of the year indicated.All race demographic data excludes Hispanics asHispanics, and non-Hispanics are reported separately.

14FEDERAL PROBATIONFIGURE 2Federal Pretrial Detention erice AmNativkBlacneWomSource: AOUSC Decision Support System; race categories do not include HispanicsFIGURE 3Federal Detention Rate by Offense72%Violence61%Sex OffensePublic WeaponsEscape/ObstructionDrugs5Source: AOUSC Decision Support System6It should be noted that prosecutors, not judges,decide which charges are to be brought against adefendant. Prosecutors, like judges, are ethicallyprohibited from discriminating against defendantsbased on demographic characteristics (AmericanBar Association), and their prosecutorial decisionsare subject to published guidelines (Department ofJustice).detention. Therefore, it is not surprising thatdefendants charged with different offenseshave different release rates (Figure 3).What may be surprising is that thereare distinct demographic patterns in termsof who is charged with different types ofcrimes. While drug charges are the mostcommon across the majority of demographicgroups, there is substantial variation. Forexample, property offenses are the secondSee, 18 U.S.C. § 3142. Note, not everyone considers the statutory factors to be unbiased. Some civilrights organizations argue that factors such as priorfailures to appear and rearrest are more reflective ofpolice and prosecutors’ decisions than the conductof defendants (Pretrial Justice).53%26%Menbut like the overall pretrial detention rate, itis important to examine judges’ decisions incontext.Judges are required by statute to consider specific factors when making releaseand detention decisions. Those factors, ontheir face, objectively relate to defendants’risk of flight and danger to the community.5They include the nature and circumstancesof the crime charged; the strength of the evidence against the defendant and likelihood ofconviction; the defendant’s criminal history,including prior failures to appear for courtproceedings; personal history; physical andmental condition; ties to the community;financial condition and employment record.In taking these factors into account, judgesare required to be impartial and are precludedfrom discriminating against defendants basedon gender, race, or other protected classification (Judicial Conference of the United States).The demographic disparity may, therefore, be a byproduct of the courts’ objectiveapplication of statutory required factors ratherthan invidious discrimination. At the heart ofthe statutory factors is the offense charged.6Although there is a presumption of innocencefor people accused of crimes, the SupremeCourt has upheld consideration of the chargeslodged for detention purposes. The Courtconcluded that within the federal statutoryframework, pretrial detention is reasonablydesigned to further the legitimate goal ofpublic safety, not to punish defendants (UnitedStates vs. Salerno).Some offenses inherently produce greaterconcerns about risk of flight and danger tothe community than do others. For example,often those charged with illegal entry into theUnited States have acknowledged or obviousties to other countries. Such ties increase thedefendant’s flight risk. Similarly, when defendants are charged with violence, weapons, andsex offending, concerns for community safetyincrease, another factor relevant to pretrialVolume 82 Number 274%58%66%most common for women, Asian, PacificIslander, and white defendants. In contrast,the second most common group of offensesfor males and blacks relate to firearms andweapons. Native Americans are chargedmost frequently with violent offenses, whileHispanics and non-citizens are most frequently charged with immigration crimes(Figure 4). The unique federal jurisdictionprovided by the Constitution and consistent

September 2018THE FEDERAL PRETRIAL DETENTION RATE 15FIGURE 4Prevailence of Federal Offenses Charged within Each Demographic lic OrderSex 00%100%TotalSource: AOUSC, Decision Support Systempolicy determinations across Presidentialadministrations have led to more prosecutionsfor illegal entry into the country, violence—particularly in “Indian Country,” and weaponsoffenses. In turn those prosecutions havecontributed to the demographic differences inrelease rates.Another statutory consideration for pretrial detention release is prior criminal history.It is generally thought that minorities, blacksin particular, have more documented criminalhistories than do whites (Gase, Glenn et al.). Inthe federal system, we do not have a uniformmeasure of criminal history at the pretrialstage. We can, however, derive such a measureby borrowing the criminal history scoringsystem used at sentencing. Developed by theUnited States Sentencing Commission, thescoring system relies primarily on the number of convictions and the length of custodyterms imposed on defendants (United StatesSentencing Commission). Looking at the current post-conviction supervision populationfor which we have criminal history scores,there are indeed significant demographic differences in terms of criminal histories.Only 12 percent of women score withinthe most severe criminal history categories,compared to 33 percent of men.7 There is alsolarge variation among defendants of differentraces (Figure 5), with 11 percent of Asiansin the most severe categories, 39 percent ofBlack defendants, 17 percent of the NativeAmericans, 15 percent of the Pacific Islanders,7The United States Sentencing Commission criminal history scoring system provides six categories,I-VI. The highest referred to in this article relatesto those defendants in categories III-VI. The leastsevere category is I and includes defendants withno criminal history.and 19 percent of the whites. Hispanic andnon-citizens have roughly half the criminalhistories of non-Hispanics and United Statescitizens. Notably, however, the Commission’ssystem does not take foreign convictions intoaccount, so the criminal histories of defendants with ties to other countries may beunderstated.Consequently, it appears that the demographic differences in the charges against, andcriminal history of, defendants may explainat least some of the difference in releaserates.8 To further explore that possibility, theAdministrative Office of the United StatesCourts (AO) examined records related to210,000 defendants charged in the federalsystem between 2012 and 2016. Focusing onUnited States citizens, cases were matchedbased on most serious offense, criminal history, and other empirical risk factors for whichthere was available data.9 The results wereanalyzed by gender, the two largest race categories (black and non-Hispanic whites), andHispanic origin and reported in an internalPPSO memo. With the stated controls in place,release rate differences between men andwoman declined by 70 percent, going from 28to 9 percentage points. The matching processeliminated the statistically significant differences between blacks and whites altogether,8For more information about the correlation ofoffense charge, criminal history, and release rates inthe federal system, see Cohen and Austin.9There is not discrete data currently availablefor each of the factors specified by statute relative to pretrial release. Consequently, all researchin this area is inherently limited. The additionalfactors are those included in the Pretrial RiskAssessment device or PTRA. See, Cadigan, Johnson& Lowenkamp, “The Re-validation of the FederalPretrial Services Risk Assessment (PTRA).”FIGURE 5Pretrial Detention RateMen2008201848%58%Pct. %U.S. Citizen42%53%11%Non-Citizen61%71%10%Source: AOUSC, Decision Support Systemgoing from 17 percentage points to 1 percentage point. Nearly 60 percent of the differencebetween Hispanics and non-Hispanics couldbe explained by the controls, going from 11 to7 percentage points. Of course, different models and datasets can be used to further explorethe question of equity in release decisions, butthe analysis already undertaken makes clearthat many factors influence release rates andlooking at one factor alone, such as demographics, would be incomplete.So available data indicate that demographicdisparity in detention may not stem from therelease decision itself but rather from the characteristics of those being charged in federalcourt. That observation does not negate thefact that pretrial detention rates are at recordhigh levels and on an upward trend for alldemographic groups (Figure 5).

16 FEDERAL PROBATIONCountervailing Costsand ConcernsJust as there are costs and concerns relatedto detaining people pending trial, there arecosts and concerns related to supervisingdefendants during court proceedings. In mostcases, to reduce risk of flight and danger tothe community, the court imposes a termof community supervision monitored by apretrial services or probation officer. Thatsupervision, and the treatment programmingit often entails, costs 177 million a year (AO).Another cost to pretrial release is that defendants have a greater opportunity to abscond,intimidate witnesses, and commit othercrimes compared to those defendants who aredetained (Alexander). The federal governmentspends 450 million a year on fugitive apprehension, and a portion of that is dedicated tosearching for federal pretrial defendants whoabscond before trial (Department of Justice).And while there is not an exact figure for thecost of crimes committed by persons releasedpending trial (General Accountability Office),conservative estimates put it in the hundredsof millions of dollars.10What Should Be Done?In light of the escalating federal pretrial detention rate and related concerns, some observershave suggested the federal system shouldmodel itself after state and local systemswith lower detention rates and better releaseoutcomes. For example, a keynote speakerat a National Association of Pretrial ServicesAgencies (NAPSA) conference11 suggestedthat the federal system adopt the practicesof the District of Columbia Superior Court.12Volume 82 Number 2That court has repeatedly posted an impressive90 percent release rate, with an equal percentage of released defendants making courtappearances and remaining free from rearrest.The pretrial agency supporting the court hasbeen praised in the media (Marimow), evenbeing favorably satirized on the popular television show Last Week Tonight with John Oliver(Avery, Carvell & Gondelman).Unfortunately, the differences in sizeand operations between the two jurisdictions makes large-scale transfer of practicesdifficult.13 For example, the Superior Courtdeals, relatively, with a homogenous defendantpopulation concentrated in a small geographicarea. Most of the charges filed in SuperiorCourt are misdemeanors and infractions. Incontrast, the federal system deals with a highlydiverse defendant population and covers theentire country plus the federal protectoratesof Puerto Rico, the Virgin Islands, Guam,and the Northern Mariana Islands. Moreover,federal prosecutions overwhelmingly involvefelonies and can be based on any one of3,000 different statutory provisions (Cali).The alleged criminal conduct is often sophisticated (Wright), and associated with multi-yearprison term upon conviction (United StatesSentencing Commission) (Federal Bureau ofPrisons).The Purpose of This ArticleThe federal system is so unique that thisarticle seeks to better contextualize its releaserate and influencing factors. Hopefully, withthat context, those of us within the system andoutside observers can better identify opportunities for improvement. The discussion isorganized as follows: (1) the structure of the10Using one published method on just 10 percentof the new charges filed against released defendantsin fiscal year 2017 related to violence produceda loss figure of 147 million alone (McCollister,French, & Fang, 2010).11Hon. Truman Morrison, National Association ofPretrial Services Agencies 44th Annual Conferenceand Training Institute, Salt Lake, Utah. September11-14, 2016.12The Superior Court of the District of Columbiawas created by Congress in 1970 “to assumeresponsibility for local jurisdiction, similar to thatexercised by state courts.” (Federal Judicial Center).The Pretrial Services Agency for the District ofColumbia that supports the Superior Court, aswell as the U.S. District Court for the District ofColumbia, is a federal entity as well, but operates separate and apart from the “federal system”supporting all the U.S. district courts outside thenation’s capital. In the business vernacular and forpurposes of this article, the “federal system” and“federal pretrial system” refers to the operationsin the 93 United States District Courts outside theDistrict of Columbia.13Geographically, the jurisdiction of the SuperiorCourt is a fraction of one percent of the federalsystem (Deloitte and Data Wheel). While the defendant population in Superior Court has historicallybeen predominately African Americans chargedwith non-violent, public order-type offenses(Washington Lawyers’ Committee for Civil Rightsand Urban Affairs), African Americans make upless than 30 percent of the defendants charged inthe federal system, and drug possession and publicorder offenses are extremely rare in the federal system (AO). In terms of caseload volume, the SuperiorCourt deals with about one-fifth of the new pretrialcases handled by the federal system, and more of itscases are misdemeanors or deal with traffic offenses(76 percent) than is the case in the federal system(7 percent). Felonies constitute most of the federalsystem docket (DC Courts) (Probation and PretrialServices Decision Support System).federal pretrial system and the roles of thosewho are part of it; (2) the changing profile ofdefendants charged in federal court; (3) institutional incentives leading some defendantsto acquiesce to, rather than contest, pretrialdetention; and (4) the potential impact of legislative reform and judicial discretion in termsof the future of federal pretrial detention.1. The Structure of theFederal Pretrial SystemIn fiscal year 2017, there were 77,000 criminalfilings (AO, Judicial Business of the UnitedStates Courts). That caseload is handled bya “system” that is really more of a collaboration between the judiciary, the defense bar,prosecutors, and the United States MarshalsService. Although not often thought of as partof the system, defendants, their families, andfriends greatly influence how processes workand the outcomes that are achieved. Eachof the participants is independent, but theiractions work interactively with the others.Judges are responsible for pretrial releasedeterminations under 18 U.S.C. § 3142. Thejudges hear from the parties and consider information and recommendations from judicialemployees, specifically pretrial services officers,who are responsible for gathering, verifying,and communicating information relevant tothe release decision and potential alternativesto detention under 18 U.S.C § 3154 14Defense attorneys “serve as the accused’scounselor and advocate” and file “motionsseeking pretrial release of the accused”(American Bar Association). Prosecutors areresponsible for timely and just charging decisions, and for seeking detention when neededto protect individuals and the communityand ensure the return of defendants for futureproceedings (American Bar Association)(Department of Justice). The U.S. MarshalsService houses defendants ordered detainedand executes arrest warrants for those releasedwho violate the conditions of their release(The United States Marshals Service).Defendants and those who know them14Courts have the option to create a separate pretrialservices office or to empower its probation office toprovide pretrial services. See, 18 U.S.C. § 3152.Presently, 19 judicial districts maintain a separatepretrial office. Courts are required to periodicallyconsider consolidation of pretrial and probationoffices for economic and operational efficiency(Judicial Conference of the United States). Eitherway, officers are subject to the same statutes, policies, and procedures. For purposes of this article,the term “pretrial services officers” is used to referto any officer carrying out the pretrial function.

September 2018provide information relevant to the releasedecision; for example, they offer details aboutpotential third-party custodians and verifyresidential and employment information.Without that type of information, the courtsare often left with just charge and prior recordinformation to make release determinations.The federal system does not operate asa monolithic whole but rather through 94judicial districts that have autonomy anddiscretion to deal with local issues. Oncemore, the different entities involved in thesystem have their own priorities and objectives. Needed consistency on material issuescomes from adherence to the United StatesConstitution, federal statutes, the FederalRules of Criminal Procedure, applicable caselaw, and the principle of comity. Anothermelding factor is the existence of professionalstandards for pretrial work and organizations.Standards in relation to making the pretrial decision making and operations havebeen developed by the National Institute ofCorrections, Pretrial Justice Institute, NationalAssociation of Pretrial Services Agencies, andAmerican Bar Association (Pilnik) (PretrialJustice Institute) (National Association ofPretrial Services Agencies) (American BarAssociation). The standards basically call for(1) a legal framework that supports pretrialrelease based on the least restrictive conditionspossible; (2) release decisions that are groundedin objective assessments of defendants’ risk offlight and danger to the community; and(3) the availability of meaningful alternatives to detention, especially options that areresearched and “evidence-based.”The legal framework in the federal system affords defendants procedural safeguardsthrough the Fifth Amendment of the UnitedStates Constitution15 and protection fromexcessive bail under the Eighth Amendment(Department of Justice). In addition, thereare statutes favoring defendants’ release. Forexample, 18 U.S.C. §§ 3142 requires the defendant’s automatic release when he or she is notcharged with a particularly serious offense and15U.S. Const. amend. V: “No person shall be held toanswer for a capital, or otherwise infamous crime,unless on a presentment or indictment of a GrandJury, except in cases arising in the land or navalforces, or in the Militia, when in actual service intime of War or public danger; nor shall any personbe subject for the same offence to be twice put injeopardy of life or limb; nor shall be compelled inany criminal case to be a witness against himself,nor be deprived of life, liberty, or property, withoutdue process of law; nor shall private property betaken for public use, without just compensation.”THE FEDERAL PRETRIAL DETENTION RATE 17the government does not contest or meet itsburden of proof showing why the defendantshould be detained. Where the governmentdoes seek detention, it has the burden of proofin many cases and must demonstrate thedefendant is a risk of flight by a preponderance of the evidence and show danger to thecommunity by an even greater standard, clearand convincing (Boss).There is an exception, however, that isgrowing larger than the rule in favor of release.The exception is found in 18 U.S.C. §3142(e)and flips the burden of proof for release ontothe defendant when the defendant is chargedwith offenses said to involve violence, drugs,and sex offending. A presumption of detention also extends to some predicate felons.The “presumption was created with the bestintentions: detaining the ‘worst of the worst’defendants who clearly posed a significantrisk of danger to the community by clear andconvincing evidence. Unfortunately, it hasbecome an almost de facto detention orderfor almost half of all federal cases.” (Austin61). Unfortunately, research indicates thatthe enumerated offenses may not be the bestpredictors of risk of flight or danger to thecommunity (Austin 60). Consequently, theJudiciary has suggested that Congress reexamine the presumption provisions (JudicialConference of the United States).As to the standard for effective pretrialwork that calls for informed and objectiveassessments of defendants’ risk of flight anddanger to the community, pretrial releasedecisions are made by United States magistrate judges and United States district judges.Magistrate judges are appointed to eightyear terms by the district court and, in turn,district judges are appointed by the U.S.President for a period of “good behavior,”sometimes called life tenure, with consentof the United States Senate, and often aftervetting by the American Bar Association(Quality Judges Initiative). By design, federaljudges are not subject to the pressures ofelection and campaigning. In fact, they areethically required to refrain from politicalactivity, just as they are required to executetheir duties fairly, impartially, and diligently(Judicial Conference of the United States).The federal system has also added anempirical component to the release decisionprocess. Specifically, pretrial services officerscalculate and consider an actuarial score whenfashioning a recommendation to the court.The tool, called the Pretrial Risk Assessmentor “PTRA,” is based on study of more than halfa million federal cases from districts acrossthe system. The PTRA has been statisticallyvalidated and revalidated (Cadigan, Johnson& Lowenkamp); it also continues to trackrelease rates and release outcomes very well(Graphics 6 and 7). The officers responsiblefor the recommendations are particularly wellqualified and trained.16In regard to the third test for an effectivepretrial services system, the federal systemis progressively adopting innovative and evidence-based interventions as alternatives todetention. The most common alternative todetention is release conditioned on supervision in the community by pretrial servicesofficers. It is common for the supervisionterm to also require substance abuse testing and treatment, as well as mental healthevaluation and treatment, depending on thefacts of the case. Home detention, usuallyenforced through electronic and GPS monitoring devices, is common in higher risk casesas well. While some services are rendereddirectly to defendants by pretrial servicesofficers, over the past five years the federal judiciary spent 134 million on contractservices to assist defendants with basic lifenecessities, needed medical and addictiontreatment, and employment services. Notably,those goods and services were in addition toanything defendants could have afforded ontheir own or that would have been available tothem as ordinary members of the public.The approach taken by pretrial servicesofficers is inspired by the “evidence-based”Risk, Needs and Responsivity Model (Serin &Lloyd). That model, and Judicial Conferencepolicy, calls for officers to assess defendants’strengths and weaknesses relative to theircompliance with the court-ordered conditions of release. The PTRA, mentioned earlier,is one of the factors considered by officersin the assessment stage. Once the assessment is made, officers tailor programmingto maximize responsivity in the defendant,which will promote a successful outcome inthe case. In undertaking these efforts, officerscan only operate within the conditions ofrelease imposed by the court, must seek tominimize the burden of the intervention, andalways uphold the defendant’s presumptionof innocence (AO, Supervision of FederalDefendants).16Pretrial services officers average more than adecade of professional experience and at least 400hours of related training. More than half exceed therequirement of a bachelor’s degree with a master’sdegree or doctorate (AO).

18FEDERAL PROBATIONOfficers use a variety of “evidence-basedtechniques” in their interactions with defendants. Most relate to helping defendantsacquire and use prosocial life skills with afocus on cognitive and choice awareness, recognition of the motive and influence of others,problem solving and deductive reasoning(Miyashiro) (Cadigan, 2009). The federal pretrial system continues to leverage technologyand training of its staff (train-the-trainer) tomaximize positive outcomes (AO ExpandingSupervision Capabilities in Probation andPretrial Services). In addition, the system isconstantly studying data and monitoring outcomes in the effort to improve.One area where, on the surface, the federalpretrial system is not following “best practices” is in use of summons rather than arrestto secure initial appearance (Pretrial JusticeInstitute). Although associated with a pretrialrelease rate of more than 90 percent in thefederal system, summons were not commonlyused. Instead, they were reserved for minorproperty, traffic, and drug possession, whichare a small part of the federal docket, and typically involve defendants presenting little or norisk of flight or danger to the community.2. The Risk Profile ofFederal DefendantsThe risk of flight and criminogenic profile ofdefendants in the federal system has steadilyworsened over the years, in part becauseof the focus of federal prosecutions. Asacknowledged by the Department of Justice,“federal law enforcement resources are notsufficient to permit prosecution of everyalleged offense over which federal jurisdictionexists. Accordingly, in the interest of allocating its limited resources to achieve an effectivenationwide law enforcement program, fromtime to time the Attorney General may establish national investigative and prosecutorialpriorities” (Department of Justice). The priorities have generally focused on repeat offendersand offenses involving drug and human trafficking, violence, weapons, sex crimes, andillegal entry into the United States (Rowland).Between 1997 and 2017, the percen

14 FEDERAL PROBATION Volume 82 Number 2 but like the overall pretrial detention rate, it is important to examine judges’ decisions in context. FIGURE 2 Federal Pretrial Detention Rate en Non-Hispanic Hispanic ic Islander White Asian an Black omen Men 58% 26% 60% 56% 46% 45% 43% 88

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