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Fighting Unjust and Unlawful Pretrial Detention and Bail in the Federal Criminal System

In the first comprehensive national investigation of federal pretrial detention, Professor Alison Siegler and the Federal Criminal Justice Clinic seek to understand why federal jailing rates are astronomically high, with three out of every four people jailed before trial—far more than in state systems.

The answer is shocking. In Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis, the Clinic finds that federal judges routinely violate the very bail laws that they are tasked with upholding, which drives up detention rates, jails people for poverty, and exacerbates racial disparities. Courtwatching data and first-hand accounts from judges and lawyers reveal that a culture of detention pervades federal courtrooms. Courthouse custom overrides the written law, eroding the presumption of innocence.

The result is a federal jailing crisis that fuels mass incarceration and inflicts lasting harms on presumptively innocent people, families, communities, and society. Federal judges have a responsibility to vindicate the rights of the accused and restore the norm of liberty enshrined in federal law.

The FCJC is currently leading the federal bail reform movement. Although there has been significant advocacy focused on cash bail in state courts, skyrocketing federal pretrial detention rates had gone largely unnoticed before 2018, when the FCJC began to investigate and identified a federal bail crisis. The FCJC is addressing this crisis from all angles through legislative and policy advocacy, data-driven courtwatching, stakeholder engagement, and systemic litigation. Our interventions have brought the federal bail crisis into the national consciousness.

The FCJC is currently developing impact litigation to challenge some of the unlawful and unconstitutional practices that too-often plague the federal criminal system.

Other FCJC Federal Bail Reform Interventions

  • Federal Courtwatching Studies: The 2022 Freedom Denied report builds on Professors Siegler’s and Professor Erica Zunkel’s pilot federal courtwatching study in Chicago in 2018–2019. See Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, The Champion (July 2020).
  • Legislative Advocacy: In November 2019, Professor Siegler testified before the House Judiciary Committee about the need for reform in the federal bail system. Professor Siegler’s oral testimony and accompanying written testimony highlight the most troubling aspects of the federal bail crisis and proposed reforms to the BRA that would both clarify the legal standards and revivify the norm of liberty that had motivated the statute. Professor Zunkel played a critical and central role in the Clinic’s legislative advocacy work. Many of the reforms in Professor Siegler and Zunkel’s work were embodied in the Federal Bail Reform Act of 2020, introduced by Chairman Nadler (D. NY.) as a replacement for the Bail Reform Act of 1984.
  • Policy Advocacy: In November 2020, Professors Siegler and Zunkel, along with Patricia Richman, contributed to the call for federal bail reform in a Justice Roundtable Report.
  • Executive Branch Advocacy: In December 2020, the FCJC submitted a memo to the Biden Administration entitled Federal Bail Priorities for the Biden-Harris Administration: Executive Branch Policies (Dec. 7, 2020), which discussed the need for federal bail reform, and Professor Siegler met with members of the Biden Transition Team.
  • Public Advocacy: In February 2021, Professor Siegler and Kate Harris, a student in the FCJC, published an op-ed in the New York Times, How Did the “Worst of the Worst” Become Three Out of Four?. This piece urged the Biden Administration and Attorney Merrick Garland to “disrupt the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary.”
  • Training federal judges, federal public defenders, and other stakeholders: Since 2018, Professor Siegler has given speeches and trainings for hundreds of federal judges, hundreds of probation officers, and thousands of Federal Public Defenders and CJA lawyers. Practitioners can access some of these training materials, including the FCJC’s template motion for pretrial release in presumption cases and other bond motions, via fd.org (click on “Bail Handout”) and via NACDL. 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.

Additional Publications