Pre-Trial Detention

​Hello Street Law Advocates,

In the wake of Trump’s federal indictment, many question why he was not detained prior to trial, which is the reality for many defendants in the federal system. According to the Federal Criminal Code and Rule 18 § 3142, a pre-trial detention hearing should be held if the defendant constitutes 1) a serious risk to community safety, 2) a serious flight risk, or 3) poses a serious risk of obstruction of justice. 

Keeping in mind that Trump was federally indicted for conspiracy to obstruct justice, which would appear to clearly pose a serious risk of obstruction of justice under Rule 18 § 3142, no pre-trial detention hearing was held. In comparison, approximately 60% of defendants are held pre-trial, a lot for less severe charges.[i] Jack Teixeira, the former Massachusetts Air National Guard member who was also recently charged with mishandling classified documents, is calling out this disparity. Despite the fact that Teixeira has significantly fewer resources than Trump, the Court determined Teixeira was a flight risk and was ordered to remain detained prior to his trial. The crimes prosecutors allege Teixeira committed are essentially the same as Trump’s first 31 charged offenses. The only notable differences are that Teixeira is accused of transmitting the information while Trump is not, and that Trump is accused of conspiracy to obstruct justice, and Teixeira is not. [ii]

The question remains: how can two defendants with very similar charged offenses have drastically different pre-trial detention results? The answer is most likely determined by the identity of a specific defendant. Here, Trump is a well-know, albeit infamous political leader, whereas Teixeira is not. Additionally, Trump would be easily recognized if he attempted to flee justice, whereas Teixeira would not. This analysis is how many courts are likely to begin distinguishing the two defendants, but is it convincing to the American public? Teixeira’s argument, alluded to above, may have some merit. He points to his modest income and how he is without the capacity to flee from prosecution whereas Trump is more likely to sustain his livelihood in another country, far from the United States’ prosecutorial reach. [iii] This discrepancy in outcome is likely due to the discretion of judges, who, after all, are merely human. However, when viewed in an objective analysis, the distinction our system makes between defendants seems to be more arbitrary than necessary to secure a criminal conviction. 

[i] https://www.usccr.gov/news/2022/us-commission-civil-rights-releases-report-civil-rights-implications-cash-bail#:~:text=More%20than%2060%25%20of%20defendants,t%20afford%20to%20post%20bail.

[ii] https://www.cbsnews.com/news/jack-teixeira-leaked-pentagon-documents-appeals-detention-order/
 
[iii] https://www.cbsnews.com/news/jack-teixeira-leaked-pentagon-documents-appeals-detention-order/
 
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