Brief of Amici Curiae National Association of Criminal Defense Lawyers, Pretrial Justice Institute, Center for Legal and Evidence-Based Practices, and Judge David L. Bazelon Center in Support of Respondents.
Argument: The federal government and the states routinely guarantee individuals subject to pretrial detention and civil commitment safeguards consistent with those mandated by the Ninth Circuit. The pretrial detention and civil commitment laws provide significant protections consistent with the requirements of due process. The federal government and all fifty states guarantee automatic hearings to consider the necessity of pretrial detention and civil commitment. The federal government and the states routinely require the government to bear the burden of justifying pretrial detention or civil commitment by clear and convincing evidence. The pretrial detention and civil commitment regimes recognize the relationship between length of detention and the gravity of the due process concern. Modern pretrial practices demonstrate that categorical detention of individual with a past conviction is not necessary to prevent criminal activity and flight. A prior criminal conviction alone does not render an individual a high risk for future criminal conduct or flight. Risk assessment tools are available to guide courts in deciding who should be released pending immigration proceedings.