Our Federal Criminal Justice Clinic at the University of Chicago Law School recently released the first comprehensive national investigation of federal pretrial detention—Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis. We conducted this study to understand why the federal system jails 75% of those pending trial, even though they are presumed innocent and have not been tried or convicted. We discovered that federal judges routinely lock people in jail in violation of the law, which increases jailing rates and exacerbates racial disparities.
In 1987, the Supreme Court upheld the constitutionality of jailing federal defendants before trial in United States v. Salerno, declaring, "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." At that time, just 29% of people charged with federal crimes were jailed before trial; the rest were released back to their families. But today, pretrial jailing has become the norm, and we conclude that "the culture of detention" is to blame:
This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty. This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process. Our Clinic undertook an in-depth study of federal bond practices, in which courtwatchers gathered data from hundreds of pretrial hearings. Based on our empirical courtwatching data and interviews with nearly 50 stakeholders, we conclude that a "culture of detention" pervades the federal courts, with habit and courtroom custom overriding the written law. As one federal judge told us, "nobody's … looking at what's happening [in these pretrial hearings], where the Constitution is playing out day to day for people."
