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February 24, 2021

Potent call for new Attorney General to address how "mass detention creates mass incarceration"

Alison Siegler and Kate M. Harris have this notable new New York Times op-ed under the headline "How Did the ‘Worst of the Worst’ Become 3 Out of 4?: Merrick Garland can bring bail reform to the federal justice system."  Here is how the efective piece gets started and concludes:

Few see Judge Merrick Garland, President Biden’s pick for attorney general, as a progressive who will reform the criminal legal system. But the Biden administration recently acknowledged that mass incarceration does not make us safer.  And as the nation’s chief federal prosecutor, if confirmed, Judge Garland will have the power to prioritize federal bail reform and reduce sky-high rates of pretrial jailing.  Doing so will decrease mass incarceration, advance racial justice and enable Mr. Garland to stake his claim as a progressive prosecutor.  In fact, federal bail reform is an area where he may have already shown an appetite for change.

In November, voters across the nation overwhelmingly chose reform-oriented progressive prosecutors over “law and order” challengers.  Red and blue districts elected prosecutors who ran on a promise to use their office to enact change. Some of these prosecutors promised to stop pursuing low-level drug crimes.  And at least one has since ended the use of cash bail for certain crimes.  But while the progressive-prosecutor movement has gained momentum at the state and county levels, it hasn’t gotten any traction in the federal system.

Mr. Garland will be able to change this by disrupting the culture of detention that pervades the ranks of federal prosecutors and, to some degree, the federal judiciary.  During his time as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Mr. Garland was a member of the Judicial Conference of the United States, the main policymaking organization for the federal bench.  Since 2017, the Judicial Conference has repeatedly called on Congress to reform the federal bail law by eliminating what is known as the “presumption of detention” for many drug cases.

While the Supreme Court famously said that freedom should be the default for people awaiting trial, current law directs judges to assume that people charged with certain crimes — including most drug crimes — will flee and endanger the community if released.  That exception has now swallowed the rule, becoming a built-in bias for incarceration that feeds the federal system’s colossal detention rates and stark racial disparities....

As Judge James Carr of the U.S. District Court for the Northern District of Ohio has observed, “Mass detention creates mass incarceration.”  Instead of maintaining a default position that most people awaiting trial should be jailed, Mr. Garland should enact policy changes that limit pretrial jailing to cases where it is genuinely necessary, eliminate all financial considerations from the detention calculus and aim to reduce racial disparities in pretrial detention.

These common-sense changes would mark the true beginning of a progressive-prosecutor movement at the federal level. Prosecutors fostered the culture of detention. Now they must help dismantle it.

February 24, 2021 at 10:19 AM | Permalink


Here in Kentucky, the Coronavirus pandemic has generated some interesting new data on the need for financial bail to secure attendance at criminal court hearings and trial. Before March 2020, the beginning of the Coronavirus pandemic, financial bail was set in most misdemeanor and criminal cases. Historically, only 4.4% of people released on pre-trial bail have either failed to appear for a court hearing/trial, or committed new crimes while out on bail. With the onset of the CV-19 pandemic, and due to the high danger to jail and prison inmates of contracting the Coronavirus (in 1 year, 55% of Kentucky's state prison inmates have tested positive for the virus, although more than half are asymptomatic), Judges and prosecutors have worked together to dramatically reduce the head count in county jails by substantially eliminating or reducing cash bail. Many pre-trial defendants (especially drug possession and DUIs) are now released on their own recognizance or on a surety bond signed by a family member, with no cash put up. Even those from whom cash bail is being required, the amounts are dramatically reduced, except in the most serious and violent cases (murder, first degree assault and first degree robbery). The Administrative Office of the Courts, which keeps track of the stats, has recently said that the rate of defendants missing Court hearings or committing new crimes while out on bond has not changed since March 2020 -- it's still 4.4% -- which means that we really don't need to require cash bonds in most cases going forward, after the pandemic ends.

Posted by: Jim Gormley | Feb 24, 2021 10:50:21 AM

There shouldn't be any AG brought forward that isn't going to fix the Mass incarceration-with a promise. There are so many people in Prison (Federal) who are there for words from another person actually caught with drugs for a lighter sentence. No EVIDENCE but that. It has to stop and those people let go with an apology. How is this not a Constitutional and Civil violation? Why hasn't a smart , hero lawyer fought this and stop them from violating people's rights? It baffles me. It's disgusting that I could get pulled over with drugs and tell on someone else, make up drug amounts and they go to prison for 20 years.....don't you have a problem with that? I know first hand of people who have made up drug amounts to get a lighter sentence who actually conspired with friends in the cell with them to tell on someone innocent, this person is now serving 15 years. Why is this not an outrage? Because most people don't know our Federal Government does this...

Posted by: Lisa Sciretta | Feb 24, 2021 5:54:45 PM

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