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The Bail Reform Act’s Pernicious Effects

Pre-trial detention is among the most misunderstood and abused aspects of the criminal justice system. Whether a person is detained or not, and the conditions under which a person is released, often sets the stage for the outcome of the case.

It is now widely understood that a detained person is far more likely to ultimately plead guilty to a crime, even though he or she may not have committed that particular crime, because the desire to get out of pre-trial detention is so great. (Most pre-trial detention, whether in the state or federal system, is accomplished through local jails where conditions are generally much worse than all but the very worst prisons.)

Most state systems focus on a combination of monetary bonds, bondsmen, pre-trial detention services, and electronic monitoring to ensure that a person released returns to court for the resolution of a criminal matter.

But the federal system is different. In 1984, Congress passed the Bail Reform Act which represented a dramatic shift in criminal justice priorities away from the more liberal 1966 Bail Reform Act. Under the previous system, pre-trial release was more common, sometimes in combination with monetary bonds.

But the 1984 Bail Reform Act, coming at the height of the War on Drugs and Nancy Reagan’s “Just Say No” campaign, was a more conservative approach to pre-trial detention, particularly as applied in the Eastern District of North Carolina.

The Netflix series Narcos refers to pre-trial detention then and now:

Congress, in revamping the federal pre-trial detention system in 1983, amended 18 USC Sec. 3142 to provide two methods of release. Under subsection (b), a person may be released on a personal recognizance or unsecured appearance bond unless the judicial officer determines that such release will not reasonably assure the appearance of the person at court or will endanger the safety of any other person or the community.

But most federal cases fall under subsections 3142(c) or (d): a P.R. or unsecured bond is determined not to be sufficient to ensure a person’s presence at court or the safety of the community, in which case the person is released on the least restrictive conditions under (c) designed to accomplish the twin aims of bond, or the person is detained pending disposition of the case under (d).

Congress also shifted the burden in favor of the Government by creating a rebuttable presumption against release in cases involving gun cases and many controlled substances offenses (among others). The idea, as Congress said in 1984, was that certain drug cases involved people with substantial ties to narco-traffickers whose appearance at trial could not be guaranteed because they would simply flee the country and resume illegal activity with cartels:

It is well known that drug trafficking is carried on to an unusual degree by persons engaged in continuing patterns of criminal activity. Persons charged with major drug felonies are often in the business of importing or distributing dangerous drugs, and thus, because of the nature of the criminal activity with which they are charged, they pose a significant risk of pretrial recidivism. The Committee received testimony that flight to avoid prosecution is particularly high among persons charged with major drug offenses. Because of the extremely lucrative nature of drug trafficking, and the fact that drug traffickers often have established ties outside the United States from whence most dangerous drugs are imported into the country, these persons have both the resources and foreign contacts to escape to other countries with relative ease in order to avoid prosecution for offenses punishable by lengthy prison sentences. Even the prospect of forfeiture of bond in the hundreds of thousands of dollars has proven to be ineffective in assuring the appearance of major drug traffickers.

The problem with the language of the Bail Reform Act is that it has been reduced from its original purpose of keeping the community safe from narco-traffickers (as it relates to drug crimes), to a general, all-purpose effort to incarcerate people pre-trial in order for the government to gain advantage over defendants.

In the EDNC, people are regularly detained even though, truthfully, there is little reason to believe they would be spirited away by a cartel, because the government merely raises the spectre of flight or risk to the community.



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