Pretrial Release in the Age of COVID-19: What Did We Learn?
![handle is hein.journals/cpilj21 and id is 99 raw text is: CONNECTICUT PUBLIC INTEREST LAW JOURNAL
PRETRIAL RELEASE IN THE AGE OF COVID-19:
WHAT DID WE LEARN?
ALAINA WILJS SPENCE
'In our society, liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception. I
INTRODUCTION
Before signing the Bail Reform Act of 1966, President Lyndon B.
Johnson stated that a poor defendant:
[L] anguishes in jail weeks, months, and perhaps even years
before trial. He does not stay in jail because he is guilty ...
He does not stay in jail because he is any more likely to flee
before trial. He stays in jail for one reason only-he stays
in jail because he is poor.2
During his speech, President Johnson discussed the cycle that often plagues
poor incarcerated defendants by sharing the story of a man who lost his job,
his car, and his family because he could not afford bail, and as a result had
no other choice but to spend two months in jail.3 Although more than fifty
years have passed since President Johnson's signing of the now repealed
Bail Reform Act of 1966, many advocates still believe that his words ring
true today.
The Bail Reform Act of 1984 (Act) shifted the focus to flight risk and
public safety.4 Under the Act, if the judicial officer determines that no
condition or combination of conditions will guarantee the defendant's
appearance in court or the safety of any other person and the community,
the defendant should be incarcerated pretrial.5 In United States v. Salerno,
the defendant challenged this language, asserting that it violated the Eighth
Amendment.6 The Constitution references pretrial detention only once in the
Eighth Amendment where it states that excessive bail shall not be
'United States v. Salerno, 481 U.S. 739, 755 (1987).
2 Lyndon B. Johnson, Remarks at the Signing of the Bail Reform Act of 1966, THE AM. PRESIDENCY
PROJECT (June 22, 1966), https://www.presidency.ucsb.edu/documents/remarks-the-signing-the-bail-
reform- act- 1966.
s Id. President Johnson also stressed the importance of the 1966 Act by including another example
of the sometimes-harsh monetary bail system. A man arrested on a traffic violation, a crime punishable
by no more than 5 days imprisonment, spent 54 days in jail because he could not afford the $300 bail.
4 18 U.S.C. § 3142(e)(1).
5 Id.
6 Salerno, 481 U.S. at 752.
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Pretrial Release in the Age of COVID-19: What Did We Learn?
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