Federal Criminal Law

Release and Detention Pending Judicial Proceedings

The release and detention of defendants pending judicial proceedings is governed by the Due Process Clauses of the 5th and 14th Amendments (pretrial detention must "serve a compelling governmental interest "), the Excessive Bail Clause of the 8th Amendment ("[e]xcessive bail shall not be required ") and the Bail Reform Action of 1984 (18 U.S.C. §§ 3141-3156).

In federal criminal proceedings, while there is no right to bail, release and detention determinations are governed by the Bail Reform Act, which provides procedures for the release or detention of dangerous offenders, as well as for offenders who are likely to flee pending trial or appeal. Section 3154 specifically empowers U.S. Pretrial Services officers with the authority to collect information from defendants and other sources relative to the matter of bail and to make recommendations as to whether a defendant should be detained or released.

18 U.S.C. § 3142 defines the categories of "release and detention" a defendant may be subject to and contains the rules under which the court and the parties must proceed relating to bail matters. Section 3142(a) states that "upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall make a determination regarding bail status of the defendant, and shall enter an order designating a defendant's custodial status" under one of four categories:

1. released on personal recognizance or upon execution of an unsecured appearance bond.
   
   If the Court determines that the release of a defendant on personal recognizance or unsecured appearance bond would not "reasonably assure" the defendant's appearance at court or that the defendant's release would "endanger the safety of any other person or the community," then there is no obligation to order a defendant's release. 18 U.S.C. § 3142(b).
2. released on a condition or combination of conditions.
   
   If the court determines that a defendant does not qualify for release under § 3142(b), the court must impose the least restrictive condition or combination of conditions necessary to "reasonably assure" the defendant's appearance as required and to "reasonably assure" the safety of any person and the community. It is important to note that § 3142(c) speaks only of conditions that will "reasonably" assure appearance, not guarantee it, and the court is not permitted to impose any financial condition of release which will result in the pretrial detention of a defendant. 18 u.s.c. § 3142(c).
   
   When making a determination regarding the eligibility of a defendant for pretrial release (whether on personal recognizance, unsecured appearance bond or release on conditions), the court must consider the factors listed in § 3142(g), including:
   1. The nature and circumstances of the offense (in particular, whether it is an offense which is violent or non-violent in nature, or involves narcotics);
   2. The weight of the evidence against the person;
   3. The history and characteristics of the person, including:
      1. physical and mental condition,
      2. family ties,
      3. employment,
      4. financial resources,
      5. length of time in the community,
      6. community ties,
      7. past conduct history relating to drug or alcohol abuse,
      8. criminal history,
      9. record of court appearances and
      10. whether, at the time of the offense or arrest, the person was on probation, parole or other release pending trial, sentencing, appeal or completion of a sentence
   4. The nature and seriousness of the danger to any person or to the community that would be posed by the person's release.
3. temporarily detained to permit revocation of conditional release, deportation or exclusion; or
4. detained.