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SMU Law Review

Abstract

It has been a long-held notion of American jurisprudence that a citizen of this country shall not be deprived of their fundamental rights until required so by law. It is an offshoot of this notion that an American should not be deprived of these fundamental rights through being confined to jail or prison until twelve of their own fellow peers have laid down a finding of guilty. However, this phenomenon is exactly what is happening today, and the issue has been steadily increasing in occurrence since the passing of a federal statute in 1984.

Because of judicial interpretation and government guidance on the Federal Bail Reform Act of 1984, defendants who are facing federal criminal charges are being sentenced to pretrial detainment prior to judgment in front of that exact pool of their twelve peers. Defendants who meet certain loosely specified “criteria” are being judged by a jury of one, a single federal judge, and are being forced to learn the implications of being a convicted criminal in the United States prison system before they otherwise would. While the federal statute attempts to gloss what is happing by labeling the locations “correction facilities,” it does not change the crux of the problem— defendants who are not a danger to society nor to bailing on their trial hearings (determined by whether they can be considered a “flight risk”) are being deprived of their fundamental rights prior to a finding of guilty. Failing to appear for a hearing in the context explained above is the subject of this Comment. Whether a defendant should be classified as a “flight risk” or not under 18 U.S.C.§ 3142(f)(2)(A) is determined based on evidence that is not subject to the normal rules of evidence seen in criminal trials, hinges upon to the sole discretion of the presiding judge, and is determined through a set of ambiguous circumstances that are up for interpretation.

This Comment seeks to explain the background and history that necessitated passing of such a federal law. This Comment will critique the way a large portion of the judicial system is interpreting this statute, specifically one portion of the statute, and manipulating its provisions as a way to sentence defendants to pretrial detainment where not warranted. Finally, this Comment will provide a potential solution, as well as an alternative format to the specific portion of the statute that is heavily subjected to abuse and a stretching of its intended scope.

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Digital Object Identifier (DOI)

https://doi.org/10.25172/smulr.77.4.10