The Volokh Conspiracy

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Criminal Law

Prof. Alison Siegler and Jaden Lessnick Guest-Blogging About Federal Pretrial Detention


I'm delighted to report that Alison Siegler (@SieglerAlison)—Clinical Professor of Law, the Founding Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), and the lead author of Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis (2022)—and one of her coauthors, Jaden Lessnick, will be guest-blogging this week about their report. An excerpt from the report:

Over thirty years ago, the Supreme Court held that people charged with federal crimes should only rarely be locked in jail while awaiting trial: "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Given that everyone charged with a crime is presumed innocent under the law, federal judges should endeavor to uphold the Court's commitment to pretrial liberty.

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." Our Report aims to identify why the federal system has abandoned the norm of liberty, to illuminate the resulting federal jailing crisis, and to address how the federal judiciary can rectify that crisis….

I much look forward to their posts.