Criminal Defense of Immigrants


§ 6.6 C. Due Process Presumption in Favor of Release

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When a criminal defendant appears before the criminal court seeking release from criminal custody, the court applies the normal presumption in favor of release on the least restrictive terms, even if the defendant is not a U.S. citizen. The constitutional principle of Due Process protects everyone’s “[f]reedom from imprisonment — from government custody, detention, or other forms of physical restraint . . . .”[5]  Every individual has a Due Process right to remain free from government restraint unless there is an individ­ualized showing that detention is required,[6] and to be released subject to the least restrictive conditions that will reasonably ensure the defendant’s appearance in court.[7]


                This principle protects both noncitizens and citizens equally: “the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”[8]  Under these constitutional rules, courts must weigh the potential danger to the community and the potential risk of flight against the strong presumption in favor of release from custody pending trial before restricting a person’s liberty.[9]  These constitutional rules bind both federal and state courts in making detention decisions affecting defendants, including noncitizen defendants.[10]


                “In our society, liberty is the norm, and detention prior to trial or without trial is the careful­ly limited exception.”[11]  Under the constitutional presumption in favor of release, courts will consider, two factors in favor of a decision to detain:


                (1)  Courts will detain a defendant, or set stricter conditions of release, in order to ensure the defendant will appear as required at all court appearances, and


                (2)  Courts will detain a defendant, or set stricter conditions of release, in order to protect the public from any potential future harm.


“On the other side of the scale, of course, is the individual’s strong interest in liberty [and the court does not] minimize the importance and fundamental nature of this right.”[12]

[5] Foucha v. Louisiana, 504 U.S. 71, 80 (1992); United States v. Salerno, 481 U.S. 739, 750 (1987).

[6] See, e.g., Cupp v. Murphy, 412 U.S. 291, 294-295 (1973); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte Burford, 3 Cranch 448 (1806).

[7] See, e.g., 18 U.S.C. § 3142.

[8] Zadvydas v. Davis, 533 U.S. 678, 693-694 (2001) (affirming this constitutional principle in the context of immigration detention after a final removal order has been issued).

[9] See, e.g., 18 U.S.C. § 3142; United States v. Salerno, 481 U.S. 739 (1987).

[10] See 18 U.S.C. § 3142; Commentary to Rules 211, 221, 341(e), Uniform Rules Of Criminal. Procedure (1987).

[11] United States v. Salerno, 481 U.S. 739, 755 (1987).

[12] Salerno at 750; see S. REP. No. 98-225, at 6-7 (1983) reprinted in 1984 USCCAN 3182, 3189 (Bail Reform Act legislative history; Congress understood that pretrial detention may be forbidden by Due Process unless limited to cases in which it is necessary to serve compelling social interests).



Ninth Circuit

Penal Code 191.5(a), gross vehicular manslaughter while intoxicated, arguably involves insufficient intent to qualify as a crime of violence aggravated felony, crime of domestic violence, or crime of moral turpitude. Penal Code 191.5, by its terms, and in CALCRIM 590, requires the prosecution prove the following elements: The defendant drove under the influence While driving UI the defendant also committed a misdemeanor, infraction, or otherwise lawful act that might cause death With gross negligence, and The grossly negligent conduct caused the death of another. Because there is a strong argument that this offense involves conduct that is grossly negligent, as opposed to intentional, this offense may not qualify as a crime of violence aggravated felony, crime of domestic violence, or crime of moral turpitude. The relevant jury instruction, CALCRIM 590 defines gross negligence as follows: Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; and A reasonable person would have known that acting in that way would create such a risk. (Emphasis added). In other words, a person acts with gross negligence when the act creates a high risk of death or GBI, but was unaware of it, even though a reasonable person would have known of the risk. See People v. Thompson (2000) 79 Cal. App. 4th 40 (drivers conduct in using drugs and alcohol, speeding and driving unsafely on a mountain road, swerving into an oncoming lane, and failing to have the passenger wear a seatbelt, amounted to gross negligence); People v. Hansen (1992) 10 Cal. App. 4th 1065 (gross negligence found where driver ignored requests to slow down and a request by a passenger for help in finding the seatbelt); People v. Bennett (1991) 54 Cal.3d 1032 (gross negligence may be based upon the overall circumstances of the drivers intoxication, and the level of intoxication is an integral aspect of the driving conduct). Thanks to Daniel G. DeGriselles.


DETENTION " ALTERNATIVES GAO report on ICE Alternatives to Detention (ATD) program, which increased its enrollment from 32,065 in FY2011 to 40,864 in FY2013.