Judges Must Follow the Correct Legal Standard in Presumption-of-Detention Cases …

Our Federal Criminal Justice Clinic’s recent national report on federal pretrial detention—Freedom Denied—revealed a severe misalignment between the Bail Reform Act’s requirements and on-the-ground practice. In the preceding two posts, we focused on the Initial Appearance hearing. This post now turns to the Detention Hearing.

This post addresses the third of our four findings and recommendations: “Judges must follow the correct legal standard in presumption-of-detention cases to reduce racial disparities and high federal jailing rates.”

The Bail Reform Act clearly favors pretrial release in most cases. At the Detention Hearing, a person must be released unless “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). But the Act contains a rebuttable presumption of detention for some crimes—most federal drug offenses and §

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