Pre-trial detention can be devastating. Imagine being accused of a crime and told you have no choice but to wait in jail until trial. This could happen because you’re assigned bail that you can’t afford or because bail has been denied altogether.
It’s not supposed to be that way. In the American justice system, we’re supposed to be considered innocent until proved guilty in a court of law. Your lack of resources should not mean that you lose your job, your housing and even custody of your children.
Under the Fifth Amendment’s Due Process clause, people accused of crimes are supposed to be evaluated based on 1) whether they are a flight risk and 2) whether they pose an immediate danger to the community. If they are a flight risk or a danger to the community, they should be assigned bail. This bail, arguably, should be means tested so that it doesn’t serve to keep poor defendants in jail when richer ones would go free.
Unfortunately, that isn’t always what happens. In fact, if you’re arrested for a federal drug crime that carries a potential sentence of over 10 years, the judge is supposed to start with the presumption that you will not be released on bail at all. The same is true for serious violent felonies, but it’s true in drug cases whether or not there was violence.
As a result of this policy, people charged with drug crimes are detained in two-thirds of all federal cases. That puts the average person — innocent until proven guilty — behind bars for an average of 255 days before their trial even though they have yet to be convicted of anything.
The Smarter Pretrial Detention for Drug Charges Act would change that presumption
Now, a bipartisan group of senators has proposed a bill that, if passed, would reverse the presumption that certain drug defendants will not be released. Instead, they would be evaluated based on their danger to the community and flight risk, just like everyone else.
The bill, called the Smarter Pretrial Detention for Drug Charges Act of 2020, could free thousands of people from pre-trial detention every year.
The bill is not partisan. In fact, groups from across the political spectrum support it.
Pretrial detention is currently at a record high. Before COVID-19, the criminal justice system was in dire need of reform. Now, with jails and prisons breeding grounds for the virus, we should be in a state of emergency, working to free as many people as possible.
Those who are merely accused of drug crimes but not yet convicted would be an excellent group of people to start with.