The Unknown Obstacle: The Burdensome Effects of Federal Pretrial Supervision

by Daniel Fuentes | January 7, 2023

The Value of Time

One hour. That’s how long the defendant had sat in the lobby, waiting for their assigned Federal Pretrial Officer to bring them inside for their weekly appointment. Being stationed at the front desk that day, it was my job to inform an officer when one of the defendants under their supervision had arrived. That’s exactly what I did, yet an entire hour had passed. Despite the workplace dynamic between intern and officer (as well as pushing through the mountains of my assignments), I had finally decided enough was enough. I went back to the same officer I had an hour prior and told them their client was still outside; I’ll never forget their response.

“Oh! I forgot. I’ll be out soon.” They spoke in a non-urgent tone… as if there was not a human being who had been waiting for them this entire time. I gave a smile and walked away, but as I walked back to my desk a wave of astonishment fell over me. Minutes later, the officer came into the lobby and brought the defendant back into their office. Ten minutes passed, and the defendant was out the door; over an hour of waiting for a simple ten minute check in. This was a perfect representation of what I learned during my time as a Federal Pretrial Services Intern: that the agency seemed to plague defendants with stressful obstacles in an already stressful part of their lives.

For many who have a decent grasp of our criminal justice system, “pre-trial” simply refers to the process a court goes through before a formal trial begins. Preliminary Hearings, Pre-Trial Motions, Jury Selection, Discovery, Plea-Bargains...all are vital components that make up the beginnings of a criminal trial and help lead it into its next steps.^{^[1]} However, there’s a crucial aspect of the pretrial process that many may actually be unaware of; likely because of its name. This aspect is the U.S. Federal Pretrial Services Agency, and the role it plays.

What is Federal Pretrial?

The U.S. Federal Pretrial Services Agency functions as the “eyes and ears” of the federal criminal courts, working to supervise defendants who have been charged with federal crimes.^{^[2]} If this sounds familiar, it’s likely because you’re thinking of Pretrial’s more widely known counterpart: the U.S. Probation Services. What separates these two agencies from one another depends on the state of their assigned defendants. Probation Officers supervise those who have already been charged, and is often seen as an alternative to a jail or prison sentence.^{^[3]} In contrast, Pretrial Officers only supervise defendants who are a part of ongoing federal litigation. These defendants have not been charged with any crime, have not pled guilty, and are (usually) not imprisoned during their case.^{^[4]}

Much like a convict under probation, a defendant under Pretrial supervision is required to follow a set of rules as their case progresses. Such requirements include regular contact/appointments with their assigned officers, the prohibition in the consumption of drugs and alcohol, being generally required to attend all relevant court hearings, and more.^{^[5]} Supervision is often promoted as a positive alternative to remaining in custody, as being eligible for the program allows you to return home. However, not many meet these eligibility requirements; the presiding judge has an enormous amount of discretion in deciding who is deserving of this alternative.^{^[6]}

Ultimately, the mission behind Federal Pretrial Services revolves around accountability through the monitoring of defendants.^{^[7]} These defendants are held accountable for any and all of their actions, with nearly every aspect of their life being known to their assigned officer. The purpose of such supervision is to enforce the court’s orders upon the defendant, protect the community, and provide treatment and assistance towards guiding defendants back into our society as law-abiding citizens.^{^[8]}

The Federal Pretrial Agency often promotes itself as a form of rehabilitation. However, this does not tear away the one-sided relationship between officer and defendant. The agency is a form of law enforcement at the end of the day, and will step in should a defendant not comply with every single one of their requirements.^{^[9]} Defendant’s do not have a reasonably easy time while under the agency’s supervision; in fact, much of what Pretrial accomplishes actually places more obstacles and barriers over a defendant during an already stressful period of their life.

The Pros

Although this article is written to shed light on and critique the functions of Federal Pretrial, it’s important to acknowledge that the agency does provide a positive purpose at times. During my time as an intern, I was able to witness firsthand how some officers treated their assigned defendants. Among these officers were genuine individuals who cared about those they were supervising. Many of them treated defendants not as lesser beings, but as equals. These officers wanted the defendants to succeed and recognized the positions said defendants were currently in, almost as if the officers secretly acknowledged the burdens Pretrial can place upon individuals. If there was anyone that saw defendants not as criminals, but as another human being worthy of respect, it was these officers.

Additionally, the Pretrial office I worked under provided several rehabilitative programs and services that sought to help low-risk defendants back on their feet, taking a step further than just performing their supervisory roles. The most notable program I had observed was Convictions Alternative Program (CAP), where hand-selected defendants would attend weekly group meetings that focused on restructuring their lives and behaviors.^{^[10]} CAP was a much more hands on program that also threw away the officer-defendant dynamic, while educating judges and attorneys on a defendant’s life experiences through direct face-to-face interactions.^{^[11]} Impressively, CAP was a collaborative program upheld not just by judges and public defenders, but federal prosecutors as well. It provided me with a glimpse of a rehabilitative program that actually produced a difference, proving incarceration and punishment does not have to be the main pillars that uphold our criminal justice system.

However, not everything can reflect the fantasy in Pretrial’s mission statement. The hardships and burdens Pretrial often places over defendants only makes the criminal justice system more daunting.

The Cons

Unfortunately, even in the positive differences Pretrial can make, the agency does anything but pave a simple path back towards a normal life for a defendant. As mentioned before, many Pretrial officers I met with genuinely cared for those under their supervision; the opposite is true as well. Many officers often talked to defendants as if they were below them, sometimes purposely making them wait longer in the office’s lobby if they made the officer upset. Additionally, as progressive as CAP seems, even this program has it’s issues. Defendants are often required to plead guilty pursuant to a plea agreement, forever marking their record as a convicted criminal.^{^[12]} Such agreements are not given to every defendant under supervision; I often sat in discussions in determining whether a defendant would be eligible for CAP or not. Those in the room included the judge, a public defender, a federal prosecutor, and a Pretrial Officer…but never the defendant themselves. It delivers a message that the defendant’s presence does not matter, despite the program being a potential vehicle towards a better life.

Not every Pretrial practice actually affects or improves a defendant’s chance of avoiding a criminal sentence. Similar to Probation, defendant’s are often required to wear “ankle monitors,” which go beyond simple check-ins and phone calls with their assigned officers. Location monitoring devices show little if any improvement towards rehabilitating a defendant than what standard check-ins provide, only serving as an unnecessary (and uncomfortable) obstacle one is forced to be burdened with.^{^[13]}

Defendants are also required to perform weekly drug tests, being required to travel all the way to the office to deliver a urine sample while an officer accompanies them in the restroom. Such a practice is incredibly time consuming: defendants usually are required to provide a test in the afternoon in the middle of their work shifts, and rarely are allowed to go to any other sites besides the Pretrial office. Additionally, having an officer watch you as you provide a sample is undoubtedly a degrading experience. There has been very little evidence that drug testing actually improves pretrial outcomes (even if the results were favorable to a defendant).^{^[14]}

As mentioned previously, judicial officers have a large amount of discretion in determining if one is deserving of Pretrial supervision.^{^[15]} This is based on several factors and circumstances that revolve around a defendant’s specific case.^{^[16]} This ultimately leads to judges making “educated guesses” around a defendant’s risk of recidivism; those that are less likely to be dangerous are prioritized.^{^[17]} For promoting itself as an alternative to custody, the agency’s services are incredibly limited to only a select few who are deemed worthy.

Additionally, the very concept of Pretrial goes against one of the most foundational ideas that our justice system operates under: innocent until proven guilty. By placing such restrictions and requirements over an individual who has yet to be charged for anything, the government is essentially treating a defendant as if they have already been convicted.^{^[18]} This is even more apparent when one compares the striking similarities between Pretrial and Probation, where the latter has these same requirements as a form of “punishment” placed onto convicted individuals.

Finally, Pretrial detention and conditions impact indigent and minority individuals more often than any other type of defendant. Those that are placed found to be in violation of pretrial conditions, leading to detention, are disproportionately Hispanic and African American individuals.^{^[19]} Although the racial disparities found within our law enforcement agencies is not at all surprising, it’s disappointing to see that an agency so devoted towards rehabilitation prevents communities of color from “enjoying” the services the agency provides.

With all of this in mind, The Federal Pretrial Services Agency has often been evaluated in terms of effectiveness and fairness; is it really helping defendants return to a normal life?^{^[20]} Based on the above, as well as numerous other burdens and hardships the agency places onto defendants, it’s unlikely that the answer to this question is “yes.”

Newfound Knowledge

My time at Federal Pretrial occurred purely out of coincidence. The agency reached out to me through my university’s career center website, offering me to interview for a paid internship position. I jumped at the opportunity because it would allow me to directly see my country’s criminal justice system in action, with the capability of interacting with prosecutors and public defenders alike. However, I admittedly knew very little about what Pretrial actually was; even in a criminal law course, my professor only glossed over the agency’s role. After leaving my internship, I wished that this professor actually did spend time discussing what Federal Pretrial did, particularly its role in burdening defendant’s throughout the stressful process of a criminal trial.

I write this piece in hopes of informing others that “pretrial” means more than the administrative procedures conducted before a formal criminal trial begins. Pretrial is not just a process, but an agency; one that almost every defendant interacts with during criminal litigation. In understanding the obstacles this comparatively obscure law enforcement agency places upon defendants, I hope others are further educated on the potentially hidden difficulties one endures when facing a federal criminal charge.

^{^[1]} https://www.shouselaw.com/ca/defense/process/pretrial/ (Para. 6)

^{^[2]} https://www.uscourts.gov/services-forms/probation-and-pretrial-services/probation-and-pretrial-services-mission (Under “What We Do”)

^{^[3]} https://www.ppic.org/publication/probation-in-california/ (Para. 1)

^{^[4]} https://www.bostondefenselaw.com/what-is-pre-trial-probation/#:~:text=By%20agreeing%20to%20pre%2Dtrial,record%20as%20having%20been%20dismissed. (Para. 1)

^{^[5]} https://www.rothdavies.com/criminal-defense/frequently-asked-questions-about-criminal-defense/bond/what-pretrial-supervision-or-pretrial-services-and-how-does-it-work/ (Para 2., the lists in the beginning)

^{^[6]} https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2809818 (pg 5)

^{^[7]} https://www.uscourts.gov/services-forms/probation-and-pretrial-services/probation-and-pretrial-services-supervision (What Supervision Is)

^{^[8]} https://www.uscourts.gov/services-forms/probation-and-pretrial-services/probation-and-pretrial-services-supervision (What it Accomplishes)

^{^[9]} https://www.uscourts.gov/services-forms/probation-and-pretrial-services/probation-and-pretrial-services-supervision (How officers Supervise)

^{^[10]} https://www.cand.uscourts.gov/...

^{^[11]} https://www.cand.uscourts.gov/...

^{^[12]} https://www.cand.uscourts.gov/...