Protecting Rights of Pretrial Detainees

We were part of the coalition of attorneys that brought the litigation eventually resulting in the United States Supreme Court’s seminal decision in Gerstein v. Pugh, 420 U.S. 103 (1975). Before that litigation, people who were arrested languished in jail for weeks based on decisions of the police officers and the state attorney. They were often not brought before a judge who could neutrally evaluate the evidence against them to determine whether probable cause existed.

Gerstein v. Pugh held that liberty could not depend on a mere determination by police officers or state attorneys. From that decision until today, a judge has had to determine if the state has enough evidence to hold a person. The state itself cannot make that determination. We continue to bring actions to enforce this law when it is violated. Blount v. Spears, 758 So. 2d 1287 (Fla. 3d DCA 2000).

The first appearance or “bond” hearings created by Gerstein v. Pugh usually occur within 24 hours after a person is arrested. At this hearing, the court informs the person of the charges against them and sets the conditions for their pretrial release, often a monetary bond. We continue to bring litigation to ensure this 24-hour requirement is met. Vigoreaux v. Manning, 714 So. 2d. 610 (Fla. 3d DCA 1998).

We have also successfully challenged restrictions that have been placed on a person’s eligibility for release at a first appearance hearing. In State v. Raymond, 906 So. 2d 1045 (Fla. 2005), we challenged Section 907.041(4)(b), Florida Statutes, prohibiting a person charged with a “dangerous crime” to be granted nonmonetary pretrial release at a first appearance hearing. The Florida Supreme Court agreed that the statute violated the separation of powers clause of the Florida constitution, because it was a procedural rule that regulated the timing of a person’s eligibility for release on nonmonetary conditions.

Another important part of the first appearance hearing is the setting of the conditions for pretrial release. The Florida Constitution contains a right to release on reasonable bail except in a few specific situations. We have been active in enforcing this right on behalf of clients. We usually litigate these issues through petitions for habeas corpus. Following are a few examples of the types of challenges brought by our office:

  • Refusing to set bonds
  • Setting excessively high bonds
  • Increasing bonds
  • Revoking bonds and nonmonetary pretrial release
  • Imposing illegal conditions of pretrial release
  • Seizure of cash bond from indigents to pay attorney fees
  • Administrative judges improperly interfering with setting of bond
  • Challenging the denial of bail pending appeal

In November 2003, a summit of the Free Trade Association of the Americas (FTAA) was held in Miami. We put together a task force of attorneys from the trial, appellate and administrative sections. The task force prepared emergency writs to protect the rights of the hundreds of people that were expected to be arrested in the protests against the FTAA.

As people were arrested, the writs were put to use to ensure that arrestees were given adequate and timely hearings to determine conditions of release, and to challenge arrests due to lack of probable cause, the setting of excessive bonds and summary findings of contempt. Out of hundreds of FTAA arrests, only one conviction resulted.

About 1,000 persons a year are arrested in Miami-Dade County on solely intrastate, immigration and military holds. Before June 2007, these individuals never appeared before a judge to be advised about their rights. Some individuals sat in jail for one to two months before they were transferred to the custody of the demanding authority.

We were never notified if an individual was solely arrested on an immigration, military or other Florida County hold. Therefore, an individual was only able to be advised about their rights if they were successful in finding an attorney on their own behalf. Due to our advocacy, beginning in June 2007, all persons arrested in Miami-Dade County now receive a court hearing. Additionally, all indigent persons held in custody receive the advice or representation of an attorney.

Before we took action, the Miami-Dade County Corrections and Rehabilitation Department indefinitely detained individuals who had immigration holds, until Immigration and Custom Enforcement came to pick them up from the jails. Many individuals were detained several weeks on immigration holds, and some were detained two months or longer. Federal law, however, only allows Miami-Dade County to detain individuals on an immigration hold for 48 hours, excluding Saturdays, Sundays and holidays. After we filed numerous habeas petitions, Miami-Dade County agreed to release all individuals on immigration holds as soon as this 48-hour period expires.