EDNY Update: Judge Pohorelsky Finds Adam Walsh Act Mandatory Bail Provision Unconstitutional, Judge DeArcy Hall Reverses Bail Determination

On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.  The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.

For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions.  In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community.  Judge Pohorelsky ordered that the use of the ankle monitor be discontinued immediately, and held that the mandatory nature of the Adam Walsh conditions violates due process and the prohibition against excessive bail.  The government has moved for leave to appeal.

Though the constitutionality of the Adam Walsh Amendments is an open question in the Second Circuit, the courts that have addressed it have similarly found the conditions to be violative of due process, excessive bail, or the separation of powers, including Magistrate Judge Treece in U.S. v. Karper, 847 F. Supp. 2d 350 (N.D.N.Y. 2011), Judge Weinstein in U.S. v. Polouizzi, 697 F. Supp. 2d 381 (E.D.N.Y. 2010), Magistrate Judge Francis in U.S. v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008), and Magistrate Judge Foschio in U.S. v. Crowell, 2006 WL 3541736 (W.D.N.Y 2006).

Update:  The government appealed Judge Pohorelsky’s decision and Judge DeArcy Hall reversed the decision today.  She did not reach the constitutional question, but found there were further facts that warranted electronic monitoring and home detention.