Bail Reform Act Puts Federal Pre-Trial Detainees in Mortal Danger

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The New York Times quoted in their headline "Jails are Petri Dishes" on March 30th, 2020. Well, not really, but they might as well have. published a story on March 9, 2020 before the Coronavirus got bad in the United States. In that article we said that jails were not ready for the Coronavirus because the best thing jails can really do is put inmates on lockdown, but "Locking down a jail dorm just turns that dorm into a petri dish." -

The Times talked about how some jails are releasing people to stop the spread of the Coronavirus. That is good news, but they can only release people that can post bail, qualify for release on their own recognizance, are serving short sentences for petty crimes, or are nearing the end of their sentence for serious crimes. Anyone detained as a pre-trial detainee either due to allegedly being dangerous or a flight risk cannot be released. In most districts federal pre-trial detainees have no option for bail. If they don't qualify for recognizance they cannot post bail, they are detained.

This is due to the Bail Reform Act of 1984 and 18 U.S. Code 3142. Congress passed the bail reform act primarily to give courts a way to hold rich defendants capable of posting any bail. Unfortunately, a law intended to protect the public from wealthy and dangerous defendants has been extended to everyone. That is because the Supreme Court of the United States (SCOTUS) has held that denial of bail does not violate the Eight Amendment's prohibition on excessive bail. Courts have since decided that rather than implement a bail system that could face an excessive bail challenge if high bails are imposed to keep rich people from fleeing or violating release conditions that eliminating bail altogether is the most efficient option. Now if they think a defendant may flee or violate release conditions they order them detained. Even though the law says clear and convincing evidence of the likelihood to flee or violate release conditions must be provided, courts have been using remote possibilities as enough evidence to call the likelihood of flight or violations clear and convincing.

This abuse of the Bail Reform Act has been a death sentence for some for decades. Until now the only people that have been killed by the Bail Reform Act have been people murdered by fellow inmates, guards, or incompetent doctors. In those cases people that would have been able to post bail if they were facing the same allegations in state court were detained by federal courts and suffered violent attacks or caught a serious illness that the jail staff was not competent to treat. Now every federal detainee is in mortal danger and most of them are in danger because of the Bail Reform Act.

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