Durbin, Lee, Coons, Wicker Introduce Bill To Eliminate Blanket Presumption Of Pretrial Detention For Most Federal Drug Charges

As pretrial detention rates in the federal system continue to rise, the bipartisan Smarter Pretrial Detention for Drug Charges Act would provide judges more flexibility when determining pretrial detention or release

WASHINGTON – Today, U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senators Mike Lee (R-UT), Chris Coons (D-DE), and Roger Wicker (R-MS) introduced the bipartisan Smarter Pretrial Detention for Drug Charges Act, providing judges additional flexibility when determining if pretrial detention is appropriate for those accused of nonviolent drug offenses.

The Senators introduce the bill as pretrial detention rates in the federal system are increasing across all demographic groups. By eliminating the blanket presumption of pretrial detention for most federal drug charges, a tailored, individualized assessment can be conducted for each defendant on a case-by-case basis.

“In America, the presumption of innocence is foundational to our system of justice. Detaining nonviolent drug offenders without consideration of their specific circumstances misses this mark, and our bipartisan bill would help reinforce defendants’ due process rights while still protecting public safety. A one-size-fits-all determination is unacceptable, costly, and contrary to our Constitutional guarantee of due process of law,” said Durbin. 

“Judges should make detention decisions based on the facts of the individual case, not on blanket presumptions.  This bipartisan, commonsense bill will protect public safety by addressing rising pretrial detention rates that are wasting resources and perpetuating injustices, and bring us closer to fulfilling our nation’s promise of equal justice under law,” said Coons.

“Non-violent defendants are being detained prior to trial because courts have been stripped of their ability to make determination of risk. This would give judges more flexibility in pre-trial detention decisions, which would save taxpayer dollars and preserve valuable resources to target violent crime,” said Wicker. 

Under the Bail Reform Act of 1984, which governs federal pretrial detention, the release of defendants is generally presumed unless a judge finds a risk of flight or potential danger to the community. This is the appropriate standard for defendants due to 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 for 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.”

A 2017 Probation and Pretrial Services Office study found that this presumption does not correctly identify which defendants are higher risk. For example, it found no significant difference in rates of failures to appear between presumption and non-presumption cases, and presumption cases had fewer violent rearrests than non-presumption cases. The study concluded that the presumption of detention in drug cases has been an “unsuccessful attempt” to identify high-risk defendants based primarily on the charge and “has contributed to a massive increase in the federal pretrial detention rate, with all of the social and economic costs associated with high rates of incarceration.” 

Additionally, racial disparities in pretrial release rates are evident in drug cases, with white defendants more likely to receive pretrial release than Black defendants. 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 following organizations support the Smarter Pretrial Detention for Drug Charges Act: American Bar Association, American Civil Liberties Union (ACLU), Americans for Prosperity, Association of Prosecuting Attorneys, Americans for Tax Reform, Dream Corps JUSTICE (formerly #cut50), Drug Policy Alliance, Due Process Institute, Fair and Just Prosecutions, Fair Trials, FAMM, Federal Public and Community Defenders, Innocence Project, Justice Action Network, Justice Roundtable, Law Enforcement Action Partnership, Law Enforcement Leaders, 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.

Bill text can be found here.


One-pager can be found here.