A Reagan-era law, passed by Congress nearly four decades ago to change the federal bail system in order to address concerns over rising crime committed by arrestees released pending trial, has been wildly misunderstood and misapplied by the federal court system’s magistrate judges, prosecutors, public defenders and probation officers, a new two-year national study finds.
The unprecedented look at federal pretrial detention conducted by the University of Chicago Law School’s Federal Criminal Justice Clinic paints a portrait of a judicial system that has neglected the rights of especially poor arrestees and people of color. Such systemic problems are largely the result of what judges and advocates told USA TODAY is a poorly-written, war-on-drugs-era statute known as the Bail Reform Act of 1984, an over reliance on prosecutorial discretion, and risk-averse magistrate judges and federal defenders.
According to the report, in 1983, less than 24% of arrestees were jailed pretrial. By 2019, nearly 75% of them were.
As of June 30, nearly 118,000 people were federally jailed pretrial, according to federal courts data. At the same time, the amount of time presumably innocent people spent locked up awaiting trial has also increased nearly sevenfold, the report found, from an average of less than two months in jail in 1985 to nearly a year now.
“(The Supreme Court in) Salerno said that ‘liberty is the norm,’ but we’ve known for a long time that that’s not true,” said Melody Brannon, the chief federal public defender for the District of Kansas.
Federal pretrial jailing cost taxpayers tens of thousands of dollars per arrestee per year or an estimated more than $1 billion per year according to the report. Prior research cited in the report also has shown that jailing has a cascading effect on an arrestee’s life from even just a few days behind bars, which may cost them their job, custody of their child, and even impact their housing, as well as make it more likely an arrestee is convicted, sentenced to a longer term and faces mandatory minimums.
The bail statute prioritizes the pretrial release of arrestees except under certain, narrowly construed conditions, and it burdens federal prosecutors with convincingly explaining why a presumably innocent person should be jailed until their trial rather than released into the community.
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