The American justice system is based on the fact that citizens are innocent until proven guilty in a court of law. However, many find themselves locked-up long before the trial. This happens because the person charged cannot post bail or their bail was denied. Those awaiting trial cannot return to work to pay rent and other bills, and some will lose custody of their children. It should not be how it works.
Due process clause
The Fifth Amendment’s Due Process clause evaluates those facing charges. Two questions are:
- Are they a flight risk?
- Do they pose a danger to their community?
Bail is withheld if the answer to either question is yes.
Drug charges treated differently
Those arrested on federal drug charges with a potential sentence of 10 or more years do not fall under the due process clause for pretrial detention. This essentially means that a potentially non-violent offender suspected of a crime is guilty until proven innocent. As a result, an estimated two-thirds of those charged with non-violent federal drug cases remain in jail while awaiting trial. The average wait in pretrial detention is 255 days.
New bipartisan bill could change that
Now Sens Dick Durbin (D-Ill), Mike Lee (R-Utah) and Chris Coons (D-Del) introduced a new bill entitled Smarter Pretrial Detention for Charges Act of 2020. The bill will put all drug offenses on the same level, where there would be a presupposition of pretrial detention. The Senators claim that it is no “Get Out of Jail Free” pass because a judge can still order detention to flight risk or a potentially violent suspect. However, what did change is that there is no presumption that there is a risk. The judge would need evidence to impose pretrial detention.
A smart change
Pretrial detention needed reform before the pandemic. Now prisons and jails are breeding grounds for the virus. This change would have the twin benefits of reducing prison crowding and the danger of exposure for those not convicted of a federal drug crime.