Federal Prisons

A New Bill Would Stop the Feds From Tossing Drug Defendants in Prison Before They're Convicted

A proposed bipartisan change in pretrial detention rules could free thousands annually.

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A bipartisan trio of senators has introduced a bill that could potentially keep people charged with federal drug crimes out of unnecessary pretrial detention. Sens. Dick Durbin (D–Ill.), Mike Lee (R–Utah), and Chris Coons (D–Del.) have introduced the Smarter Pretrial Detention for Drug Charges Act of 2020.

Currently, if you're arrested for federal drug charges, a judge will determine your release conditions on the presumption that you will be let free, unless the judge concludes you're a danger to the community or a flight risk. This, logically, is how pretrial detention should be handled in accordance with the Fifth Amendment of the Constitution. People who are suspected of crimes, but not yet convicted, shouldn't be treated as guilty and imprisoned solely on the basis of unproven suspicion.

However, if you face a federal drug charge with a potential sentence of more than 10 years, the judge is required to treat you with the presumption that you will be detained, just as if you'd a serious violent federal offense and even if no violence was involved in your drug case. As a result, Durbin's office noted, defendants charged with drug crimes end up being stuck in jail in two-thirds of federal cases. The average defendant will spend 255 days in pretrial detention without having been convicted of a crime.

Durbin, Lee, and Coons' bill will put all drug offenses on the same level. People charged with drug offenses that could potentially result in long prison sentences will no longer be treated with a presumption or pre-trial detention. But this is also not a "Get Out of Jail Free" pass. A judge can still order the confinement of a defendant who is deemed a threat to the community or a flight risk. The difference is that the courts will no longer presume that this threat exists without any evidence.

"The Fifth Amendment protects the life, liberty, and property of all Americans from government interference without due process of law. This legislation seeks to better protect the right of all Americans against unjust imprisonment by changing the presumption for pretrial detention," said Lee in a prepared statement. "This change to a presumption against pretrial detention will allow judges more discretion to consider each defendant's individual and unique circumstances when deciding whether pretrial detention is appropriate and necessary."

The bill has the support of criminal justice reform groups across the political spectrum. The American Civil Liberties Union, the Innocence Project, and the Drug Policy Alliance all support it, as does Americans for Prosperity, Justice Action Network, Americans for Tax Reform (federal pretrial detention costs taxpayers $18,615 per defendant), and FreedomWorks.

"At a time when pretrial detention is at a record high, COVID-19 continues to spread rapidly through our prisons and jails—creating a deadly situation where incarcerated people are twice as likely to die from this deadly pandemic," Holly Harris, president and executive director of Justice Action Network, said in a statement. "Our criminal justice system was in desperate need of reform well before COVID-19 hit, but it is now in a state of emergency. We urge members of Congress from both sides of the aisle to support this legislation and ensure that we take smart steps to reduce incarceration and save the lives of people in prisons, correctional workers, and our communities at large." 

So far there have been 13,139 reported COVID-19 infections in federal prisons and 125 deaths. There are currently about 226,000 people in federal detention, either convicted of crimes, awaiting trial, or being held over immigration issues.

How many people will Durbin, Lee, and Coons' bill actually help? Probably not a huge number when compared to the entire population of people being held in prisons and jails in America. According to data from the Prison Policy Initiative, only about 22,000 people are being held in pre-trial detention in federal jails for drug crimes, but nearly half a million people being held in pretrial detention in state and local jails. The percentage of imprisoned people who may be freed under these new rules is in the single digits.

But the possibility that this law helps only a couple of thousand people per year doesn't make this bill bad or worthy of dismissal. The FIRST STEP Act proves that criminal justice reforms can have huge, positive impacts on the lives of federal inmates, even if only a small number of the total prison population reaps its benefits.

Rather, the reason it's worth noting the small number of people this bill will help is to illustrate that comprehensive criminal justice reform does not result from a single bill, or five, or 10. Given that most people are imprisoned by the states, not the federal government, reform will continue to require a wide network of activism and supportive lawmakers across the country, and many, many changes to laws and policies.

The Smarter Pretrial Detention for Drug Charges Act of 2020 is just a small part of these reforms, but it will certainly mean a lot for several thousand people each year if it passes.

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  1. I doubt that 10 year limit is very challenging to any prosecutor worth his salt. Not only can prosecutors indict a ham sandwich, they can indict it for its anti-semitism character and pile up as many hate crime charges as they want; adding drugs into the mix might as well add adulterated food charges for all the barrier that 10 year limit is.

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    2. They lock people up in America in Prison when a white person is perceived by the Woke culture to have killed a black person without trial to appease white guilt from the woke culture. Why should dopers get a break; oh maybe because white supremely caused them to deal dope? Very crazy.

  2. Alright, fine, we’ll charge them with domestic terrorism as well. Are we good now?

    1. Obviously, defending the rights of opium farmers is more important than the loss of our homes, businesses, and lives.

    2. YFA also says three 125-man National Guard fire fighting teams have been activated. The cynic is me wonders how many of their members are fire fighters in their day jobs.

      1. Well, if they’re firefighters in their day jobs, activating them as NG units will certainly cut down the costs of using them.

        1. Depends – a lot of states still pay them, in lieu of NG pay.

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  3. Even if it only directly affects a dozen people per year, the concept that non-violent criminals should not be detained before conviction is a super important example to set.

    1. All criminals are violent. Refusing to obey the dictates of the state is violence against the state.

      1. If they are willing to commit one felony they are willing to commit them all!

    2. That’s where the debate is. People can’t seem to agree on what constitutes a violent crime. Then we have citizen groups posting bail for people who fall under the traditional definition of violent crime and they go out and recommit and one can’t help but question why we permit criminals to go out and commit more crimes if they just pay enough while waiting for their trial.

      Bail as a concept is outdated. It should be outright denied for violent offenses no matter how much they pay and it shouldn’t even exist for most other offenses.

  4. Ok, now let’s get rid of the concept of “federal drug crimes”

    1. s/federal//

      😀

    2. s/drug/victimless/g

    3. It’s a border sovereignty issue. Belongs federally.

  5. Would the jailing of these Federal accused relate at all to the 1994 crime bill?

    Might the states follow the Fed’s lead?

  6. However, if you face a federal drug charge with a potential sentence of more than 10 years, the judge is required to treat you with the presumption that you will be detained, just as if you’d MISSING WORD a serious violent federal offense and even if no violence was involved in your drug case.

    These articles are never even glanced at by an editor, are they?

    1. We are all editors in this intellectual orgy of free minds, writers and commenters alike.

      -His Excellency Editor in Perpetuity Farnham

    2. good catch. The communo-fascist drug czarists simply assume it’s there… As soon as the election is in the Kleptocracy bag all these make-believe bills go away and the party platforms promising robbery, rape, murder, torture and hanging over a joint take effect.

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  9. Jo Joregenson’s platform includes, in literal plain language, the fact that she will immediately pardon all inmates who are in for “victimless non-violent crimes”

    How is this not even getting attention from anyone at Reason? It’s just about the most libertarian position possible for a presidential candidate.

    1. Because that might take away votes for Harris.

    2. Yeah, it’s pretty weird Jo is not getting more press at Reason. In 2016 there was a fuckton Gary Johnson articles. I am curious if they do a “who are you voting for this year?” for all the writers, like they usually do. If they don’t do that, it will be a little suspicious.

    3. That would be libertarian unchecked monarchical power?

      1. No the constitution gives the President the power of the pardon PRECISELY as a check against the tyranny of the other branches if they take it too far.

        But you knew that. You are a joke.

        1. It’s actually a distinct holdover from absolute monarchy. I’m not saying it’s bad, I’m saying it’s not libertarian, unless libertarians have suddenly started believing that ends always justify the means.

          And what a ridiculous situation that would be coming from a bunch of overt Trump supporters.

          1. haha pardoning is not libertarian? It’s literally granting someone their liberty. WTF is wrong with you?

            1. Welfare checks give people more liberty too.

              1. Government created dependency is liberty?

                1. I said welfare checks. You seem to be assuming some sort of psychological outcome that results from people getting money. Why is rich people getting free money a motivator for them, but poor people getting free money causes them to be morally depraved?

                  1. Earned versus unearned is as mysterious to sozialistischen as voluntary versus coercive. Tony is a valuable textbook example of intelligentzia of the looter persuasion fallacies.

                    1. How is interest on capital “earned”?

                      Aren’t you just calling the ways rich people make money “earned” and the ways poor people make money “dirty”?

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          2. Observe that the soviet socialist mentality cannot focus on non-aggression for even a second, and defaults instantly to the distinction between Stalin’s hagiographers and Stalin’s critics–the latter all being in cahoots with Snowball, Goldstein or Boss Trump.

      2. It’s literally 1 of 4 things the president can do

    4. It got my attention.

      Jo is spot on libertarian.

      Some people here write in attempt to try and convince us that it is libertarian to support republican or Democrat. What a crock of shit. None of them have a leg to stand on.

      1. The Kleptcracy believes all its sockpuppet infiltators are working for the Greater Good, obeying the Gemeinnutz vor Eigennutz minted on National Socialist coins.

    5. The kleptocracy is in a high-stakes effort to take freedom off a board on which Reason is as important and as vulnerable as a bug. But that is the plank we ought to be flaunting–not the ones injected by communist infiltrators.

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  11. 1. Jail is not prison. Not even close. Also, even most accused drug dealers can post bail before trial. You should fix the headline.
    2. I see Hank is back. Sigh.

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