Best Chicago Criminal Lawyer Michael Leonard reviews Seventh Circuit decision regarding the issue of suicide under the Bail Reform Act. The case is United States v. Storme, No. 23-2615. The Seventh Circuit judges on the Opinion are Brennan, Scudder, and St. Eve. In evaluating this matter, the Seventh Circuit first noted a fact known all too well to federal criminal lawyers and their clients, that “[F]ederal judges grapple every day with one of the most common but consequential decisions in our criminal justice system: whether to detain a defendant pending trial.”
Those decisions are made pursuant to the federal Bail Reform Act. In Storme, the defendant suffered from mental illness and had attempted suicide on multiple occasions – including “threatening to take his life if the district court declined to dismiss his pending criminal charges.” Accordingly, the Seventh Circuit had to expressly consider “the role suicide risk plays” under the Bail Reform Act.
By way of procedural background, the defendant faced multiple counts, including cyberstalking under 18 U.S.C. § 2261A(2), and unauthorized intrusion into a cell phone under 18 U.S.C. § 1030(a)(2). The Magistrate Judge had ordered his release pending trial – with conditions that included curfew, psychiatric treatment, restricted use of technology, and residing with his mother who would serve as his third-party custodian.
The defendant did not comply with those conditions in several ways, including curfew violations, a State court arrest for stalking, abusing alcohol, and reports that he was “continuing to have suicidal ideation.” At first, the District Court judge simply admonished the defendant in response to those violations, but prohibited him from having contact with his girlfriend and required him to submit to drug testing. Thereafter, the defendant’s mother (third-party custodian) moved but no one was substituted in as a new third-party custodian.
Subsequently, Pre-Trial Services submitted a Violation Report reporting that defendant’s therapist had “expressed concern” that defendant might kill himself in the event the District Court denied his Motion to Dismiss Indictment. Moreover, prior to the hearing on that Motion, the defendant began transferring assets to his mother—”a sign of on-going suicidal ideation.” In addition, defendant showed up in the assigned District Court’s courtroom on various occasions to watch unrelated proceedings before his assigned judge. Further, Pre-Trial Services reported that instead of defendant working on a “safety plan” with his therapist or Pretrial Services officer, he was “continuing to hint ominously at his plans for self-harm.”
At the Motion to Dismiss hearing, the District Court judge announced that he was reserving ruling but then – and without advance notice – revoked defendant’s pretrial release and ordered him detained. The Court did not provide any prior notice that defendant’s release would even be addressed, did not hold an actual hearing on that issue, and did not make “supporting findings or offer explanations,” indicating that would be done in the context of a future Order. Almost immediately after his detention, defendant attempted to commit suicide.
In response to that immediate appeal of that detention order, the Seventh Circuit ordered the government to file a Motion to Revoke pursuant to 18 U.S.C. §§ 3145(a) or 3148(b) – and indicated that defendant would otherwise be released. In that briefing the government argued – and the District Court ultimately agreed at the hearing on that Motion – “that suicide was a form of flight within the meaning of the Bail Reform Act.” The District Court also determined that defendant’s “erratic behavior made him a potential danger to others that could not be adequately mitigated by additional release
Based upon that factual and procedural background, the Seventh Circuit reviewed the District’s findings and conclusions underlying its revocation/detention decision. The Court noted that the Bail Reform Act has a two-part standard that is set forth in § 3148(b). This includes the District Court making a threshold finding under § 3148(b)(1) that there is either “probable cause to believe that the person committed a Federal, State, or local crime while on release” or “clear and convincing evidence that the person has violated any other condition of release.” Under the second part of that test, the District Court must find that detention is necessary under § 3148(b)(2) because either: 1) there are no conditions or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community” or 2) that “the person is unlikely to abide by any condition or combination of conditions of release.” In making that assessment, the District Court must consider the factors in § 3142(g) that informed the initial release decision.
Applying that criteria to the case before it, the Seventh Circuit found that the District in fact had sufficient cause to revoke defendant’s release under § 3148. The Storme court found the record provided a basis for both of the alternative grounds under § 3148(b)(1). According to the Court, this included probable cause to believe defendant had committed crimes while on release, and that there was clear and convincing evidence that he had violated his curfew multiple times – but two to three years ago. Defendant argued in response that those curfew violations were too stale to constitute a basis for revocation. The Storme Court pointe out that, although staleness is a relevant fact . . . it presents no legal barrier to doing so.” However, importantly, the Storme Court found that there was no deadline or timelines for considering the defendant’s allegedly violative conduct.
That said, the Storme Court further concluded that, under § 3148(b)(2), it did not believe “that Storme’s likelihood of violating release conditions sufficiently high to justify detention.” The Court made that finding based upon the fact that those curfew violations were each for only a matter of minutes and such conduct had not recently recurred.
The Court then considered what it found to be the “more difficult question, i.e., whether detention was necessary to assure that he would not flee or pose a danger to the safety of any other person or the community pursuant to § 3148(b)(2)(A). In finding that detention was in fact so necessary, the Storme Court held that, “the mere existence of suicide risk is not itself sufficient to justify pretrial detention,” the circumstances presented in this case warranted detention.
In addressing this suicide issue, the Court found that the District Court had reasonably determined, that defendant’s conduct with respect to the threat and attempt at suicide, was “but one manifestation of a broader pattern of erratic, obsessive, and unpredictable behavior presenting a danger to others.” However, the Seventh Circuit made it clear that the risk of suicide is entirely “distinct from a risk of flight or nonappearance.” In so finding, the Seventh Circuit relied upon a plain reading of the Bail Reform Act, which provided no indication that “flight” or nonappearance encompasses suicide. The Court further found that nothing in that Act’s history suggested that “flight” or nonappearance included suicide.
Nonetheless, the Seventh Circuit still addressed whether “suicide risk alone poses a sufficient danger to justify detention.”
To the credit of the Court, and perhaps the surprise of defendants and defense counsel, the Court found that it cannot. In short, the Court held that the risk must be a risk to others, i.e., and not the defendant himself. The Court concluded that, “[A]t best, . . . § 3142(g) suggests that suicide risk is relevant only to the extent that it presents a risk of harm to others . . the mere risk of self-harm is not itself enough. Accordingly, the Court concluded that the “mere existence of a risk of suicide does not provide grounds to detain a defendant under the Bail Reform Act in any and every case.” (emphasis added)..
That did not, however, end the Court’s inquiry. The Court noted that, revocation based upon “dangerousness requires a careful assessment of the facts and circumstances relevant to the broad factors in 18 U.S.C. § 3142(g). The Storme Court still found that, considering those factors “in totality,” caused them to agree with the District Court’s revocation/detention decision and thus required the defendant’s continued detention. The Court based that decision on its determination that the defendant would still pose a danger to other persons or the community. The Court relied upon the facts of record, which “painted a picture of a defendant who responds unexpectedly, dangerously, and obsessively to adversity in potentially escalatory ways.”
Finally, the Storme Court added an additional wrinkle to its analysis in light of the fact that this was no “ordinary case.” In short, the Seventh Circuit gently chastised the District Court and the government for the manner in which the proceedings below were carried out. But, the Court went out of its way to state that its “overarching point is not one of criticism but of positive reinforcement: sound process often matters most in pressure-packed, consequential decisions. Recognizing those moments and taking care to adhere to the requirements prescribed by rule or statute will ensure the protections of the parties’ rights and interests and maximize the chances of clean transcripts containing clear findings and leaving no doubt everyone enjoyed a full and fair opportunity to convey their positions.”
Despite the ultimate result in this case, this is still good law for federal criminal defendants. It is now clear, at least within the Seventh Circuit, that the risk or threat of suicide does not constitute flight, and does not represent, in and of itself, a danger to others or the community at large.
Leonard Trial Lawyers
October 19, 2023