At federal court in Michigan, most go free until trial

Jennifer Chambers
The Detroit News

Their alleged crimes vary widely — producing child pornography, assaulting a flight attendant and robbing an armored car of a half million dollars.

But three separate defendants charged in felony cases in U.S. District Court in Detroit share a common bond: They are not behind bars as their cases work through the criminal justice system.

That’s because in federal court in the Eastern District of Michigan, being on the outside awaiting trial is the norm, not the exception.

According to federal court statistics, 59 percent of criminal defendants in the Eastern District were released on bond pending trial, while nearly 41 percent were detained. That’s for the 12 month-period ending Sept. 30. Those numbers exclude immigration cases where holds are already in place.

Nationwide, 42.6 percent of federal defendants are released pretrial while a majority — 57.4 percent — are in federal detention.

The highest pretrial release rate in the continental U.S. was in the Eastern District of Arkansas at 74.1 percent. The lowest rate was in southern California, along the Mexican border.

The Eastern District of Michigan’s release rate has earned it a national reputation as a liberal release court, with the numbers reaching as high as 69 percent in the last five years. Those figures place the district in the top 10 nationwide that release the most defendants pretrial.

And its judges and pretrial services agency are pleased with the attention.

“We are very proud of the work in allowing defendants to remain with their families and in the community pending resolution in their case,” U.S. District Judge Gerald Rosen said. “We also have a very low violation rate, which speaks to the efficacy of our supervision.”

“We have led the country in using evidence-based practice to supervise pretrial detainees. We have been a model for many other districts in doing that,” added Rosen, who was the chief judge of the district from 2009-15.

The Pretrial Services Office for the Eastern District is in charge of supervising released defendants and making the initial recommendation as to whether they should be detained. A staff of 33 prepares bail reports for an average of 1,000 cases a year.

The process starts with a face-to-face interview of the defendant who has been been arrested and named in a criminal complaint.

Pretrial services gathers all the information it can about his or her physical and mental condition, family ties, employment, financial resources, community ties, past conduct, drug and alcohol use history, criminal record, prior record of court appearances. It also considers whether they were on probation, parole or bond during the alleged offense.

The final decision comes down to a defendant’s flight risk and criminal past and whether there is compelling evidence the defendant is a danger to the public.

“So long as you can ensure the defendant won’t be a danger to the community, it’s much better to have them with families and communities. It facilitates communication with their lawyers and it results in significant cost savings to the taxpayers,” Rosen said.

According to 2014 data from the FBI, the U.S. Marshals Service and the Administrative Office of the U.S. Courts, it costs an average of $27,832 to detain a person in jail pending trial for one year, while it costs an average of $3,279 to supervise a person in the community pending trial.

Once defendants are released, their freedom often comes with a set of conditions that can include a GPS tether, drug and alcohol treatment and banishment from the Internet. An unsecured bond is also set, but does not require money to be posted.

Still, why is the release rate so high compared to other federal districts?

Alan Murray, chief pretrial services officer for the Eastern District, said it comes down to the relationships that have been built between the agencies that work with defendants out on bond, such as pretrial services, the U.S. Attorney’s Office and U.S. Marshal Service.

All these agencies work together to put conditions in place to ensure the defendant will return to court and not be a danger to the public, Murray says. Defendants are offered drug and alcohol treatment services. Typically pretrial services spends 20 months working with defendants as their case moves toward a resolution.

Murray said his office gets to know defendants very well over that time, offering them the kind of assistance and support they need to turn their lives around as they prepare for their case.

“It’s key to our success. We try to form conditions that will ensure a person appears in court,” he said. “The judges have trust in us to supervise individuals,” Murray said.

“It really does come down to the judge and magistrates. Judges are given a huge object called discretion,” he added.

Mai Fernandez, executive director of the National Center for Victims of Crimes, said what is missing from the discussion on pretrial release is how the victim or victims will remain safe while a suspect is free.

“There is a checklist of things for the defendant, but there is very little done on what safety plan is put in place for the victim,” Fernandez said. “Our court is set up to protect defendants’ rights. It’s not set up to protect victims’ rights.”

There had been little public outcry about the release of federal defendants in Detroit, until the release of Matthew Kuppe in December from federal detention.

Kuppe, a counselor at a Jewish day camp in West Bloomfield, was charged with producing child pornography after investigators said he filmed prepubescent boys in a locker room.

Kuppe had been in detention since August, when on Nov. 24, U.S. District Judge Avern Cohn ordered his release with 19 conditions, including GPS tether, no contact with the victims or children under 18 and no computer or Internet use.

Prosecutors urged detention, as did pretrial services. The decision was met with outrage by parents of the victims. An attempt to reach a parent for this story was unsuccessful.

In his order, Cohn also said there was no evidence Kuppe was a flight risk and while his offenses were “extremely serious,” they did not involve crimes of violence or narcotic drugs, which typically require detention.

Peter Henning, a legal expert and professor of law at Wayne State University and a former federal prosecutor, said the Bail Reform Act of 1984 established that release is the standard under federal law.

“Why is release better? Detaining someone can be viewed as a form of punishment. Normally punishment is reserved for conviction. It’s related to the presumption of innocence,” Henning said.

More conditions are being imposed on release because of changes in technology, Henning said

“Tracking is better with tethers. ... They are more willing to impose condition such as home confinement because that is only possible with a tether,” Henning said.

Detroit’s U.S. Attorney Barbara McQuade said her office makes decisions on whether to seek detention on a case-by-case basis, often agreeing to a bond for a nonviolent offender who poses no risk of flight. That’s because it saves costs and helps facilitate review of discovery material and plea discussions, she said.

However, her office will argue for detention whenever the facts suggest that a defendant poses a danger to the community or a risk of flight, McQuade said, and sometimes her office will appeal a magistrate’s release decision to the district court or “even the court of appeals when we believe strongly that a defendant should be detained.”

Although most defendants on bond return for their court appearances without committing additional crimes, McQuade said sometimes her office disagrees with decisions to release offenders who she believes pose a danger to the community.

“Even if they do not commit new crimes, the release of otherwise dangerous defendants charged in serious gun and drug cases creates a chilling effect on witnesses and victims and contributes to the fears that result in the ‘no-snitch’ philosophy,” McQuade said.

Miriam Siefer, chief of the Federal Defender Office in Detroit, said nearly a decade ago the rate was higher than it is now. That was until 2007, the year the U.S. Department of Justice put an emphasis on prosecuting individuals involved in child pornography and more defendants ended up in detention.

Still, Siefer does not think the current rate should be higher, she said.

“There is a culture of release in the Eastern District. We have a low failure-to-appear rate and I think we are pretty good where we are,” she said.

Free awaiting trial

Released defendants in U.S District Court in Detroit include:

■Breanna Farquharson, accused of assaulting flight attendants and a passenger during a United Airlines flight, forcing the pilot to land at Detroit Metropolitan Airport. The 22-year-old New York college student was released on bond and to the custody of her parents on Jan. 12. She must travel with one parent, undergo a psychiatric evaluation and take ordered medication.

■David Linnell Troupe, accused of stealing more than $500,000 of bank-owned cash by impersonating a Loomis Armored Car employee on duty outside Greektown Casino. Troupe was released and placed on a GPS tether with conditions. He must stay in the Eastern District, report to pretrial services and have no contact with Loomis.

■Kenyetta Wilbourn Snapp, former principal of Mumford and Denby high schools, was indicted by a federal grand jury in Detroit on charges of money laundering, federal tax evasion and failure to file an income tax return. She was released on a $10,000 unsecured bond and must get permission to travel outside Michigan.

Source: Detroit News files