Whether a categorical presumption of pretrial detention for internet-related offenses violates the Bail Reform Act and the Due Process and Excessive Bail Clauses of the U.S. Constitution, and whether a pandemic should weigh in favor of granting pretrial release

QUESTIONS PRESENTED This Court has not assessed the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-3150, governing pretrial release for persons accused of federal crimes, since the 1980s, despite the growing number of presumptively innocent Americans jailed pretrial. In United States v. Salerno, 481 U.S. 739 (1987), the Court upheld the Act’s constitutionality because Congress found certain serious offenders likely to re-offend yet carefully limited detention by requiring case-specific determinations. After Salerno, Congress amended the Act to include new offenses subject to a rebuttable presumption of detention but made no findings to support its further erosion of the norm that liberty should be preserved before conviction. Here, although Michael Foster is accused of committing post-Salerno offenses for which detention is initially presumed, the Act nonetheless required his release with the “least restrictive’ conditions that “reasonably assure” community safety. 18 U.S.C. § 3142(¢)(1). The Sixth Circuit concluded: (1) release conditions must effectively guarantee safety, and no “failsafe” exists to prevent re-offending behavior when, as _ here, allegations involve the internet because, outside of jail, the internet is ubiquitous, and (2) the global COVID-19 pandemic does not alter that calculation. Does a categorical presumption of pretrial detention for internet-related offenses violate the Bail Reform Act and offend the Due Process and Excessive Bail Clauses of the US. Constitution? Should a pandemic weigh in favor of granting pretrial release?