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Jail Before Trial Should Be the Exception, Not the Norm

By Marc A. Levin and Khalil A. Cumberbatch

As federal agencies probe what the Chinese government’s spy balloon observed, Americans must remember that what it could not have seen is of even greater importance to the fabric of our democracy. The individual liberties we cherish may not be visible, but they are indispensable. Among them is the presumption of innocence of criminal defendants, including the presumption against pretrial detention.

Holding a defendant in jail before trial is necessary in certain cases to protect the public, but it should not be the norm. In the majority opinion of the 1987 Salerno decision, Chief Justice William Rehnquist wrote: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

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