Our Federal Criminal Justice Clinic’s recent national report on federal pretrial detention—Freedom Denied—revealed a severe misalignment between the Bail Reform Act’s requirements and on-the-ground practice. We have focused on the Initial Appearance hearing in the previous posts. Now, we will move on to the Detention Hearing.
This post addresses the third of our four findings and recommendations: “Judges must follow the correct legal standard in presumption-of-detention cases to reduce racial disparities and high federal jailing rates.”
Pretrial release is clearly encouraged by the Bail Reform Act in most cases. A person cannot be released at the Detention Hearing if “the judicial officers finds that no condition, combination of conditions, will reasonably assure the appearance and safety of the person as needed and any other persons in the community.” 18 U.S.C. § 3142(e). However, the Act includes a rebuttable presumption that detention for some crimes—most federal drug offenses and § 924(c) gun charges.
This presumption was designed to be extremely narrow:
Congress wanted this presumption to detain only the “worst” offenders.[L]The drug presumption was proposed by egislators to stop rich people who are suspected of drug trafficking at high levels from fleeing.” But was the reality