Document Category: Pre-Trial Release

This brief argues against mandating regular drug or alcohol testing as a probation condition for a client who does not have a history of substance abuse related to their offense. It is written citing MCL 771.3(11), which requires probation conditions to be tailored to the individual’s assessed risks and needs, but can be easily adapted to other jurisdictions with similar probation statutes. The brief argues that mandatory testing is counterproductive to this client’s rehabilitation because it (1) makes it more difficult for probationers to obtain and maintain employment, (2) is extremely onerous and invasive, (3) places unnecessary financial burden on probationers, and (4) is not shown by research to improve recidivism outcomes. Defenders can use this brief to urge the court to strike mandated testing from their client’s probation requirements in favor of an individualized supervision strategy that is less invasive and truly aimed at supporting successful reintegration.

This ten-page sample motion argues that judges should not consider a client’s record of prior police contacts, including arrests, that did not result in criminal convictions for purposes of sentencing because such records are (1) inherently unreliable/ambiguous and (2) likely to exacerbate existing racial disparities in the criminal legal system. The motion draws on national data and jurisdiction-specific case studies to show that people of color, particularly Black Americans, are stopped, searched, arrested, and charged at disproportionately high rates, not because of higher rates of crime commission but because of implicit bias in law enforcement. This sample motion also uses local data from Washtenaw County, Michigan, that defenders should replace with their own jurisdiction’s data when available, to demonstrate that these national trends are reflected in the defendant’s jurisdiction as well.  Data from this motion could also be useful to defenders drafting 4th Amendment suppression motions or making evidentiary arguments at trial to exclude evidence of prior police contacts.  To the extent that the court or the prosecutor bring up prior police contacts at pre-trial release hearings, this data could also be useful to argue for exclusion of prior contacts during bail/pretrial release assessments.

This section of a motion for pretrial release can be used by defenders in jurisdictions that have adopted an automatic text reminder system for court dates to strengthen an argument that their client poses no flight risk. This is based on research showing that these text reminder systems reduce missed court dates, indicating that a major reason for failures to appear is simple forgetfulness. This research can also be used to advocate for the creation of an automatic text reminder program in jurisdictions without one or to help explain a prior failure to appear that occurred before such a reminder system was in place.

This motion argues that, because the routine imposition of marijuana testing as a condition of release is at odds with the current legal, social, and scientific understanding about the risks posed by marijuana use, courts should exercise discretion and not impose a marijuana testing requirement as a pretrial condition of release unless there are specific reasons, beyond mere past or potential use of marijuana, that such use would be dangerous or lead to a failure to return to court.

Pgs. 2-7: discussing changes in federal marijuana enforcement to argue that the federal government no longer views marijuana use/possession as inherently dangerous

Pgs. 9-10: describing racial disparities in marijuana possession enforcement and documenting how Black people are disproportionately arrested for possession while white business owners profit from the marijuana sales industry

Pgs. 11-12: arguing that general marijuana testing requirements are inefficient and divert scarce resources from efforts that actually impact public safety

The ACLU of Michigan included these reports as exhibits in its recent litigation attacking the constitutionality of Michigan’s Sex Offenders Registration Act (SORA). Does v. Whitmer (Does III), No. 22-cv-10209 (E.D. Mich.). The research cited in these reports — specifically on the low risk of recidivism among people convicted of sexual offenses and the counterproductive impact of registration/notification requirements on public safety and recidivism — could be used (1) when negotiating with a prosecutor for a plea to a non-registration offense, (2) when justifying such a plea to a sentencing judge, (3) in pre-trial release arguments, (4) in sentencing arguments where clients will be forced to register to show the onerous nature of registration, or (5) to support a motion in limine to preclude reference to a client as a “sex offender.”

(Note that the following page numbers are keyed to the page numbers in each expert report, which you can find in the middle bottom footer of each report):

Letourneau Report

Pages 2-11: Explaining through a dozen different scientific studies that sex offender registration and notification laws fail to increase community safety, do not have a general deterrent effect, and may even increase the incidence of crime by making it difficult for ex-offenders to find and maintain housing, employment, and social relationships.

Pages 11-12: Noting that researchers have found no connection between juvenile registration/notification and an increase in public safety but they have found increased incidences of attempted suicide among juvenile registrants as well as an increase in their likelihood of being victims of sexual assault themselves.

Pages 12-13: Citing research showing that 80% to 90% of adult males convicted of sex offenses are never reconvicted of a new sexual crime, including studies that debunk recidivism myths by showing rates of recidivism as low as 2-5%.

Pages 13-14: Discussing research showing that conviction offense has no bearing on recidivism risk.

Pages 16-17: Citing research showing the negative impact of registration on people’s mental health and ability to find and maintain stable housing, employment, and prosocial relationships, creating barriers for reintegration.

Pages 17-20: Discussing why the costs of implementing sex offender registration and notification laws are greater than any savings or benefits generated by those laws

Pages 21-22: Finding no correlation between failure-to-register violations and sexual recidivism

Socia Report

Pages 4-8:  Citing research showing that 90-95% of all sex crime arrests are for first-time offenders; the vast majority of sex crimes are not committed by strangers; and sex offender registration and notification laws do not reduce recidivism or make communities safer

Page 9-12:  Debunking through scientific research any suggestion that there is a high sexual recidivism rate and noting that sexual recidivism rates are actually lower than those of any other offense except murder

Pages 16-17:  Noting that language matters to public perceptions and that individuals are more likely to think negatively about someone described as a “sex offender” than someone described as an “individual convicted of crimes of a sexual nature” (this research might support a motion in limine about how clients should be described in court)

Pages 19-22:  Documenting how individuals on the sex offender registry are stigmatized in ways that affect reintegration including compromising employment and housing opportunities, as well as social support networks

Pages 22-25:  Noting that there is no consistent evidence that failure-to-register convictions predict increased sexual recidivism.

This draft sentencing argument is one-page long and relies on three studies to demonstrate that when young people (including people up to age 24) are exposed to violence (gun-related or not), it substantially increases the likelihood that  they will later carry guns because they are afraid and feel they need the gun for self-protection and to protect their loved ones.  This data could also be used to argue in pre-trial release hearings that youth charged with firearms-related offenses are not necessarily dangerous.

This brief argues that, contrary to stereotypes, drug use alone—even frequent or illicit use—does not necessarily indicate substance abuse (pp. 23, 28-29). Only a minority of users develop a diagnosable SUD (p. 23). A single positive drug test is insufficient to establish a SUD (p. 29). And equating substance use, even a SUD, with substantial risk of harm to a child is unsupported by the medical evidence (pp. 40-42).  Defenders can use the research collected in this brief to file motions in limine to exclude evidence of or arguments about substance use as more prejudicial than probative or to obtain expert testimony on substance use.  The research could also be useful at the pretrial release and sentencing stages to suggest that clients do not suffer from a substance abuse disorder and do not pose a danger.

Although this is a habeas brief, pages 27-29 (p. 34-36 of the PDF) lay out how lifetime electronic monitoring burdens participation in civic and social life by causing adverse impacts on relationships, decreased psychological well being, and reduced employment opportunities. The data collected in this section could be useful to defenders in sentencing and/or pre-trial release arguments — either to prevent the use of electronic monitoring devices or to argue for reductions in other conditions if electronic monitoring is imposed.  Additionally, pages 37-40 (p. 44-47 of the PDF) argue that sex offender registration burdens both freedom of movement and participation in civic and social life because of differences in state laws and the lack of privacy after information is posted on the internet.  That data could be used to argue for reduced incarceration for individuals who face placement on the registry in light of the punitive effects associated with the registry itself.

This sentencing memorandum marshals empirical research about the typical profile and risk assessment of someone convicted of possessing child pornography, along with research related to the client’s age and the impact of incarceration on recidivism/deterrence, to argue that the client is not dangerous or likely to reoffend. These arguments could also be used pretrial in a bond argument.

Pgs. 26-27: An older person will suffer greater punishment from incarceration than the average person incarcerated

Pgs. 29-30: The empirical evidence shows no relationship between sentence length and general/specific deterrence

Pgs. 31-33, 46, 51-52: Empirical research shows that first-time child pornography possession offenders have a very low risk of sexual recidivism and the consumption of child pornography alone does not seem to represent a risk factor for committing contact sex offenses

Pgs. 33-34: Marriage reduces recidivism as does employment, education and family ties/responsibilities

Pgs. 33, 51: Recidivism (including for child sex offenders) declines with age, and only a very few child sex offenders recidivate after age 60

Pgs. 22-23, 47: Because of the ease of accessing child porn on the internet, there is no evidence that the number of images possessed bears on the likelihood that an offender is “dangerous” or more likely to engage in contact sex crimes

Pgs. 21, 47-50: Harsher punishment for child porn consumption will not reduce the flow of child porn on the internet because there is no empirical evidence to support the assumption that children are abused for the sole purpose of creating child pornography for dissemination (i.e., the consumption of child porn alone has no “market effect”)

Pgs. 52-53: Collects research discussing the criminogenic effects of prison