Durbin, Lee, Coons to Introduce Bipartisan Smarter Pretrial Detention for Drug Charges Act

WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senators Mike Lee (R-UT) and Chris Coons (D-DE), members of the Senate Judiciary Committee, today announced they would introduce the bipartisan Smarter Pretrial Detention for Drug Charges Act of 2021, a targeted bill that would eliminate the blanket presumption of pretrial detention for most federal drug charges.  Pretrial detention rates in the federal system are at record high levels and on an upward trend across all demographic groups.  This legislation would permit federal courts to make individualized determinations regarding whether pretrial detention is appropriate for each defendant charged with a nonviolent drug offense.  Any defendant found to be a flight risk or a threat to public safety would be detained.

“There is much more work to be done to reform our criminal justice system, and one critical step we should take is reducing federal pretrial detention.  Defendants are presumed innocent until proven guilty, and far too many people are being detained pending trial without consideration of their individual circumstances.  The Smarter Pretrial Detention for Drug Charges Act will address record high levels of pretrial detention, and I’m proud to have the support of my colleagues Senator Lee and Senator Coons,” Durbin said.

“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 giving judges more discretion to consider each defendant’s individual and unique circumstances when deciding whether pretrial detention is appropriate and necessary,” Lee said.

“In our system of presumed innocence, a court should determine that pretrial detention is necessary based on individual circumstances, not blanket presumptions.”  Coons said.  “This narrow, commonsense bill would protect public safety while helping to address a pretrial detention rate that is wasting resources, increasing racial disparities, and leading to longer sentences.  I thank Sens. Durbin and Lee for their leadership on this critical issue.”

The following organizations support the Smarter Pretrial Detention for Drug Charges Act: American Bar Association, American Civil Liberties Union (ACLU), American Conservative Union, Americans for Prosperity, Association of Prosecuting Attorneys, Americans for Tax Reform, Black Public Defender Association, Center for American Progress, Dream Corps JUSTICE (formerly #cut50), Drug Policy Alliance, Due Process Institute, Fair and Just Prosecutions, Fair Trials, FAMM, Federal Public and Community Defenders, FreedomWorks, Innocence Project, Justice Action Network, Justice Roundtable, Law Enforcement Action Partnership, Law Enforcement Leaders, Leadership Conference on Civil and Human Rights, National Association of Criminal Defense Lawyers, National Association of Pretrial Services Agencies, National Legal Aid and Defender Association, Pretrial Justice Institute, Prison Fellowship, R Street Institute, Right on Crime, Sentencing Project, and Tzedek Association. 

The Bail Reform Act of 1984 governs federal release and pretrial detention proceedings, and under its provisions, release is generally presumed unless a judge finds risk of flight or potential danger to the community, which is the appropriate standard for defendants with the presumption of innocence.  However, this release presumption is reversed for certain criminal charges, creating a presumption of detention without regard to the circumstances and background of the accused.

One of these “presumption” charges is any drug offense that is punishable by 10 years or more (the vast majority of federal drug offenses).  This presumption, a relic of an antiquated and failed approach to combatting the last drug epidemic, treats nonviolent drug offenses like terrorism, hijacking, and other serious violent crimes.  According to the Probation and Pretrial Services Office of the Administrative Office of the U.S. Courts, this presumption has “become an almost de facto detention order for almost half of all federal cases.” 

As a result of the presumption, defendants charged with drug offenses are detained in two-thirds of cases.  Pretrial supervision only costs $11 per day, compared to $92 per day for pretrial detention, per detainee.  The average period of detention for a pretrial defendant has now reached 277 days, costing an average of $25,484 per defendant.  In contrast, with an average of $11 per day, pretrial supervision costs an average of $3,047 per defendant across the same 277 days.