Bill Would Loosen Pretrial Detention For Some Drug Charges

By Kevin Penton | September 13, 2020, 8:02 PM EDT

A bipartisan bill recently unveiled in the U.S. Senate would eliminate the presumption that those facing federal drug charges must be detained before their trials start, with sponsors contending the measure would empower judges and prevent unnecessary incarcerations.

Introduced Wednesday, the Smarter Pretrial Detention for Drug Charges Act would allow federal judges the discretion to make individualized determinations on whether those charged with nonviolent drug offenses should be detained or allowed to be released before the beginning of their trials.

Defendants that judges deem to be flight risks or threats to public safety would still be detained under the bill, which was introduced Wednesday by Sens. Dick Durbin, D-Ill.; Mike Lee, R-Utah; and Chris Coons, D-Del.

"This legislation seeks to better protect the right of all Americans against unjust imprisonment by changing the presumption for pretrial detention," Lee said in a statement on Wednesday. "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."

Defendants charged with drug offenses are currently detained in approximately two-thirds of all cases, costing an average of $18,615 for the 255 days on average they are detained before trial, according to the legislators' announcement. For those who instead go into a pretrial supervision program, the average cost is $1,785 over the same average period.

The conservative group FreedomWorks on Thursday voiced support for the legislation, with President Adam Brandon urging members to call their senators and encourage them to support the bill. Apart from the drastic difference in cost between pretrial supervision and pretrial detention, there is no significant difference in failure to appear rates for those who are released, he said.

"A cheaper, more efficient alternative exists in the form of pretrial release when certain criteria are met and if the individual accused of a drug crime abides by other requirements mandated by law," Brandon wrote in a blog post.

The libertarian think tank R Street Institute also applauded the bill on Thursday, deeming current federal statutes to be "burdensome and overbroad," according to its website.

"This bill would make federal pretrial detention a fairer and more financially efficient, case-by-base decision by shifting the primary focus of the judiciary to the facts of the case rather than charges filed," R Street senior fellow Lars Trautman said in a statement on Thursday.

The bill would follow in the footsteps of the First Step Act, which in December 2018 loosened various sentencing provisions, including reducing mandatory minimum penalties for repeat drug-trafficking offenders, changing the conditions for sentences to be enhanced, and allowing more crack cocaine offenders to return to court for sentence reductions.

"The First Step Act was a critical move in the right direction to reform our criminal justice system, but there is much more work to be done," Durbin said in a statement on Wednesday. "Far too many people are being detained pending trial without consideration of their individual circumstances."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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