District of Columbia Cash Bail Reform Act of 2025

Floor Speech

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Mr. IVEY. Mr. Speaker, I thank my colleague for yielding.

Mr. Speaker, I rise in opposition to this legislation. As a former prosecutor here in Washington, D.C., I had a chance to use these statutes frequently with respect to the bail determination that is made in all of these criminal cases at some point or another.

My colleague talked about this being commonsense legislation, but the D.C. bill is patterned on the Federal Bail Reform Act. I note that there is no effort to amend that here or change it in the way that has been proposed in this bill.

In addition to that, roughly 40 States in the Union are patterned after the Federal Bail Reform Act, just like the D.C. bill is, but there is no effort to change those. Many of those 40 States are represented by Members on the other side who support this bill.

The main point I want to raise right now is that it appears to me that this bill, as drafted, would create a scenario that is unconstitutional. As I read it, it strikes a 5-day provision. In other words, when somebody is initially arrested, they can be held for 5 days, and so, Mr. Speaker, you can have the full-scale hearing.

The way this is drafted is it eliminates the 5 days, and it says:

Notwithstanding any other provision, the judicial officer shall order that the person who is charged with this crime be detained for the period before trial.

I think that says that no matter what, whoever is arrested for any of these charges, there is a mandatory requirement that they be held for the entire pretrial period. That would certainly be unconstitutional.

Under Salerno, the Supreme Court case which ruled on the constitutionality of this language over 40 years ago, the Supreme Court said that there are a variety of safeguards that have been put in place: right to counsel, detention hearing, and the chance to offer opposing evidence and the like, that provides the safeguards that permit the statute to be found to be constitutional.

However, the way this bill is drafted, none of those safeguards could come into play because the initial provision as it is written makes all of those superfluous and says that no matter what, if these charges arise, then the person has to be detained for the entire pretrial period.

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Mr. IVEY. Mr. Speaker, I would say at this point, though, that because it is unconstitutional, I urge my Republican colleagues to oppose this bill. I urge all of my colleagues to oppose this bill.

I would note that Salerno was written by Chief Justice Rehnquist, no liberal advocate, and Justice Scalia supported it, as well.

This is a provision that has key safeguards that are excluded. By the way this is drafted, it has to be revised. I oppose it even if you do the revision piece, Mr. Speaker, because I think it violates the rights of the District of Columbia to make their own determinations.

At a minimum, Mr. Speaker, please send constitutional law forward.

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