Criminal Defense of Immigrants

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).