Prof. Siegler's Blog Posts re Wilks and the Presumption of Detention, Part I & Part II.

As explained in this post from last week, Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, wrote to me to highlight a big Seventh Circuit ruling on the Bail Reform Act (BRA).  I suggested that she do a guest post series on this Wilks ruling (as she previously did a series of guest posts on her stash-house sting litigation).  Alison  prepared two  posts on the topic; the first is at this link, the second is here:

The Wilks opinion is groundbreaking not only for its clarification of the BRA’s presumption of detention, but also because it is the first opinion from the Seventh Circuit to address the standard of review for a revocation decision under 18 U.S.C. § 3148.  The court sets the same standard of review for both an initial detention decision under 18 U.S.C. § 3142 and a revocation decision under § 3148: “‘independent review’ of the decision below, though with deference to the judge’s findings of historical fact and his greater familiarity with the defendant and the case.” United States v. Wilks, 15 F.4th 842, 847 (7th Cir. 2021); id. (“We conclude that the same standard of review governs an appeal from an initial detention decision and a decision to revoke pretrial release.” (emphasis in original)).

Moreover, Wilks is also the first Seventh Circuit case to address the legal standard for revocation of pretrial release in 18 U.S.C § 3148 (a different issue from the standard of review).  The court holds, in relevant part: “A finding that the defendant violated a release condition does not alone permit revocation; the judge must make findings under both § 3148(b)(1) and (b)(2) before he may revoke release” and must also “weigh the factors listed in § 3142(g).” Id. at 848.

The court ultimately determines that the judge’s findings were insufficient to satisfy the legal standard: “[T]he judge did not find by clear and convincing evidence that Wilks violated a condition of release. See § 3148(b)(1)(B).” Id.  The court finds fault for two reasons.

First, as a factual matter, the judge did not focus on the correct alleged bond violations and did not give the defense an opportunity to respond to new allegations: “Though it was not improper for the judge to reframe the inquiry, the fact remains that Wilks’s counsel did not have an opportunity to address the specific issue that the judge was concerned about.” Id. For the judge to permissibly order detention, the defense must have an opportunity to meaningfully rebut the court’s justification for detention, especially if the court orders detention on the basis of an argument not raised by the government.

Second, the judge did not make sufficient factual findings or properly apply the legal standard to the facts: “A recitation of the statutory language ‘devoid of any discussion, analysis, or explanation as to why the district court concluded that the criteria for release had not been met’ cannot justify detention even after conviction, when the presumption of innocence has been extinguished.” Id. (emphasis in original) (citation omitted).  In other words, before revoking pretrial release, the judge must provide detailed factual findings that are connected to the relevant legal standard — notably, even if the accused has already been convicted and is pending sentencing.

Finally, Wilks reminds us that “the government’s interest in ensuring the safety of the community and securing the defendant’s appearance in court” must be balanced against “the defendant’s interest in his personal liberty.” Id. at 847. As the Supreme Court has emphasized, “[f]reedom from bodily restraint has always been [ ] the core liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U.S. 71, 90 (1992). And in the pretrial detention context, “the individual[ ] [has a] strong interest in liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987).  Too often, the government’s interests are treated as paramount, despite the fact that the BRA and precedent require a meaningful consideration of an accused’s “importan[t] and fundamental” interest in liberty. Id.

Federal practitioners seeking to obtain their clients’ release on bond should file written bond motions incorporating the foregoing arguments and applying § 3142(g) to the facts of their case.  My Federal Criminal Justice Clinic at the University of Chicago Law School has written a template motion for pretrial release in presumption cases and other bond motions that are available on fd.org at this link (click on “Bail Handout”) and via NACDL at this link.  If you do not have access to these websites you can obtain the FCJC’s template bond motions by emailing the clinic’s assistant, Kyla Norcross, knorcross @ uchicago.edu. For more tips for getting federal clients released on bond, see Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); Erica Zunkel & Alison Siegler, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction, 18 OHIO STATE JOURNAL OF CRIMINAL LAW 238 (2020).