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Pretrial Release

It is extremely difficult for a federal defendant to obtain pretrial release — especially where the defendant has a prior record and/or has failed to comply with previous pretrial release orders in separate cases.

The Bail Reform Act of 1984 is chapter I of the Comprehensive Crime Control Act (CCCA) of 1984. The provisions of the Bail Reform Act of 1984 were transplanted from an earlier Senate Bill, S. 1762. The legislative history of the Bail Reform Act of 1984 is the report prepared in connection with S. 1762 (S. Rep. No. 225, 98 th Congress, 1st Session (1983)). The Bail Reform Act of 1984 repealed the most recent major revision to federal bail law, the Bail Reform Act of 1966 (18 U.S.C. Sections 3141-51 – Repealed). The goal of the changes in the law regarding bail were aimed at those individuals who committed new crimes while on release and the danger those individuals pose to others if released.

18 U.S.C. Section 3142 governs the release or detention of a defendant pending trial. The first court appearance for a defendant charged with a federal offense is governed by Rule 5 of the Federal Rules of Criminal Procedure. This is commonly referred to as a federal defendant’s first appearance. The most important aspect of this hearing is to address the issue of release or detention. It should be noted that orders of release shall only be entered in a case that is pending trial. 18 U.S.C. Section 3142(a). Any judicial officer authorized to order an arrest under 18 U.S.C Section 3041 may conduct a detention hearing, although typically it is handled by a United States Magistrate Judge.

At the initial appearance, there are five dispositions the court can make as to release or detention:

  1. Order temporary detention. If the case is one that qualifies for temporary detention under the statute, the court must so order. 18 U.S.C. Section 3142(d).
  2. Conduct a detention hearing. 18 U.S.C. Section 3142(e).
  3. Continue the case three to five days upon a motion for a detention hearing, while the defendant remains in custody. 18 U.S.C. Section 3142(f).
  4. Order the defendant’s release on his personal recognizance bond or an unsecured appearance bond. 18 U.S.C. Section 3142(b).
  5. Set other conditions of release. 18 U.S.C. Section 3142(c).

Pursuant to 18 U.S.C. Section 3142(d)(1)(B) and (2) a defendant may be temporarily detained for a period of up to 10 days. This provision of the Act is designed for situations in which it appears that other courts, or immigration authorities, would have a basis for asserting a claim to custody of a defendant. If the case fits one of the factual situations narrowly defined by statute, the court is required to detain the defendant for up to 10 days. It should be noted that both subsections (1) and (2) must apply, in that a defendant must qualify under one of four special designations in subsection (1) and that a defendant may flee or pose a danger to any other person or the community under subsection (2) in order for a defendant to qualify for temporary detention. It is not enough simply to qualify for one of the four special designations under subsection (1). 18 U.S.C. Section 3142(d). If this determination is made a court may hold the defendant temporarily detained for up to 10 business days, excluding Saturdays, Sundays and federal holidays. It should be noted that it is not required that a court hold a defendant temporarily detained for 10 days; it may be a shorter period of time. If the government is going to move for pretrial detention beyond the temporary detention time frame it should move for such detention at the initial appearance, although it is conceded that the Eleventh Circuit Court of Appeals allows for a motion for pretrial detention at the end of the period of temporary detention.

Pursuant to 18 U.S.C. Section 3142(g) there are four factors that should be considered when determining whether there are conditions of release that will reasonably assure the appearance of a person as required and the safety of any other person and the community. These four factors are:

  1. The nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; and
  2. The weight of the evidence against the person; and
  3. The history and characteristics of the person, including:

a. the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

b. whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state or local law; and

4. The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.

Unless the court orders a person detained under 18 U.S.C. Section 3142(e) and (f), it must set conditions of release that a defendant can meet. 18 U.S.C. Section 3142(b) and (c). The court’s objective is to always set conditions of release that will “reasonably assure the appearance of the person as required” and the “safety of any other person and the community”. 18 U.S.C. Section 3142(b) and (c). Once pretrial release is determined appropriate there is a presumption in favor of release of a defendant under the least restrictive possible conditions. 18 U.S.C. Section 3142(b). There are three types of conditions of release:

  1. Personal recognizance. A personal recognizance release means a defendant promises to appear at all court appearances and to not commit crimes while on release. 18 U.S.C. Section 3142(b).
  2. Unsecured appearance bond. This adds one element to the personal recognizance release, in that if a defendant does not appear as directed the court may enter a judgment against him in the amount set in the bond; however, a defendant need not initially post that amount or any portion of it before he is granted release. 18 U.S.C. Section 3142 (b).
  3. If a release on personal recognizance or unsecured appearance bond will not reasonably assure appearance and safety then the court must turn to the catalog of conditions as set forth in 18 U.S.C. Section 3142 (c)(1). These conditions vary from simply maintaining employment to weekly drug testing to no contact with victims or witnesses to supervision by a third party custodian to an agreement to forfeit property or a surety (monetary) amount to house arrest with a monitor among other special conditions.

It should be noted that a judicial officer shall not impose a financial condition that results in the pretrial detention of a person. 18 U.S.C. Section 3142(c)(2). The pretrial detention provisions of 18 U.S.C. Section 3142 replaced the existing practice of detaining defendants through the imposition of an excessively high money bond. S. Rep. No. 225, supra note 9, at 16.

What follows is key case law on common detention hearing issues.

Drug Offenses

In drug offenses wherein the maximum sentence is 10 years or more, for instance, there is a rebuttable presumption that there are no conditions that will reasonably assure the appearance of the person, or the safety of the community. 18 U.S.C. Section 3142(e). Once the government raises the statutory rebuttable presumption, the defendant carries the burden of production to come forward with evidence to rebut the presumption. The defendant’s obligation to come forward with evidence does not shift to the defendant the government’s ultimate burden of persuasion. United States v. King, 849 F.2d 485 (11th Cir. 1988). The presumption then remains in the case as evidence upon which the magistrate judge may rely, along with other evidence produced by the defendant and the government. Length of detention by itself does not play a role in granting or denying pretrial release. United States v. Quartermaine, 913 F.2d 910 (11th Cir. 1990).


Pretrial detention based upon his dangerousness is not unconstitutional. United States v. Salerno, 481 U.S. 739 (1987). In order to detain a defendant on the basis of dangerousness the government must prove by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person and the community. United States v. Medina, 775 F.2d 1398 (11th Cir. 1985).

Risk Of Flight

A defendant should be detained if the government establishes by a preponderance of the evidence that he poses a risk of flight. United States v. Medina, 775 F.2d 1398 (11th Cir. 1985). The court may rely on the presumption established by Section 3142(e) to deny a defendant charged with a narcotics offense pretrial release on the basis that he poses a risk of flight.

Detention Hearings

Prior to a detention hearing pretrial services are empowered by 18 U.S.C. 3153 to obtain personal information from a defendant in order to assist the court in making a determination about release or detention. Information obtained from the defendant may only be used for the purposes of determining issues of release or detention and are otherwise confidential. 18 U.S.C. Section 3153(c). The government may therefore not use information, such as phone numbers, obtained by a pretrial officer, as evidence at trial. At a detention hearing, the Jencks Act applies. After a witness testifies, any witness statements that are in the possession of the party calling the witness and related to the testimony, must be produced. Fed. R. Crim. P. 26.2. At a detention hearing both the government and the defense may proceed by way of proffer, subject to the discretion of the court. A decision by the magistrate judge may be reviewed by the district court and therefore affirmed, modified or reversed. The standard of review is de novo but it need not conduct a de novo hearing.