I KNOW WHY THE CAGED BIRD IS CAGED PRETRIAL RELEASE AND DETENTION - PDF document

I KNOW WHY THE CAGED BIRD IS CAGED PRETRIAL RELEASE AND DETENTION STEVEN M. STATSINGER

SUMMARY OF CONTENTS I. Introduction and Fundamental Issues A. Eighth Amendment B. Due Process C. Preventative Detention D. Ethical Considerations E. Presumption of Innocence F. Right to Be Present II. Old-Law Bail Practices in Federal Court III. The Bail Reform Act of 1984, 18 U.S.C. § 3142, et seq. A. Overview B. The Court’s Bail Options - § 3142(a) C. Factors the Court Must Consider - § 3142(g) D. Source-of-Funds Hearings - § 3142(g)(3) E. ROR or Release on Unsecured Appearance Bond - § 3142(b) F. Release on Conditions - § 3142(c) 1. Ordinary Cases 2. Additional Conditions for Certain Cases Involving a “Minor Victim” 3. Court Cannot Impose a Financial Condition that Results in Pretrial Detention 4. Court Can Amend Conditions G. Temporary Detention Pending Revocation of Conditional Liberty - § 3142(d) H. Detention - § 3142(e) 1. Presumptive Detention A. Nature of Charged Offense(s) - § 3143(e)(3) B. Recidivists - § 3142(e)(2) 2. Detention Permissible Under § 3142(f)(1) 3. Detention Permissible Under § 3142(f)(2) 4. The Detention Hearing I. Appealing the Bail Determination - § 3145 1. Appeal to District Judge 2. Appeal to Circuit IV. Sanctions for Violating Conditions of Release - § 3148 A. Revocation of Release and Detention i

B. Contempt of Court V. Bail Pending Sentence - § 3143(a) A. Detention Pending Sentence Presumptive Unless 1. Guidelines Do Not Recommend Imprisonment, or 2. “Clear and Convincing” Evidence that Defendant Not a Flight Risk or a Danger B. Detention is Even More Presumptive in § 3142(f)(1)(A),(B) and (C) Cases 1. Overcoming the Presumption 2. “Exceptional Reasons”: § 3145(c) VI. Bail Pending Defendant’s Appeal or Certiorari - § 3143(b) VII. Release Pending Government’s Appeal - § 3143(c) A. Detention Mandatory if Defendant Sentenced to a Term of Imprisonment B. In Any Other Case, Court Is to Apply § 3142 VIII. Detention of Material Witness - § 3144 A. Arrest Warrant B. Party Must Show that the Person’s Testimony Is “Material” and C. That Securing his Presence by Subpoena “May Become Impracticable” D. Person Is then Subject § 3142. IX. Penalties for Failure to Appear - § 3146 A. Statutory Directives B. Sentencing Guidelines C. Affirmative Defense D. Forfeiture of Property I. Penalties for Committing Crime While on Release - § 3147 A. Statutory Directives B. Sentencing Guidelines ii

PRETRIAL RELEASE AND DETENTION I. INTRODUCTION AND FUNDAMENTAL ISSUES A. Eighth Amendment “Excessive bail shall not be required.” This does not mean that there is a constitutional right to bail, such that pretrial detention is unconstitutional. United States v. Edwards, 430 A.2d 1321 (D.C. Ct. App. 1981) (case includes a fascinating and thorough history of early English and Colonial bail statutes) Supreme Court has not decided whether Eighth Amendment’s “excessive bail” clause applies to the states. Martin v. Diguglielmo, 644 F. Supp. 2d 612, 618 (W.D.Pa 2008). B. Due Process Government’s “regulatory interest in community safety” can in appropriate cases “outweigh an individual’s liberty interest.” United States v. Salerno, 481 U.S. 739, 748- 49 (1987). But there must be a “heightened “heightened, substantive due process scrutiny” and a “sufficiently compelling” governmental need. Demore v. Kim, 538 U.S. 510, 549 (2003). Pretrial detention is only constitutional if it is “regulatory.” When pretrial detention is disproportionately long relative to the reasons for the delay, it becomes “punitive” and is a due process violation. Cf. United States v. Briggs, 697 F.2d 98, 101, 104 (2012) (court “disturbed” by twenty-six month pretrial detention, and, although it was a “close call,” affirmed and ordered district court to either try defendant or set “reasonable bail” within 120 days). C. Preventive Detention Does not violate due process. Salerno, 481 U.S. at 750-51. Class of persons is narrowly tailored to those that threaten an “overwhelming” governmental interest. There is a “full-blown adversary hearing,” a neutral decision-maker, and a requirement of clear and convincing evidence of dangerousness. D. Ethical Considerations Right to bail is personal to the defendant, although tactical decisions guide whether and when to make the application, and what arguments to make. Defense counsel should not waive bail application entirely without defendant’s consent. 1

E. Presumption of Innocence “Nothing in this section shall be construed as modifying or limiting the presumption of innocence.” 18 U.S.C. § 3142(j). Justices Brennan and Marshall in dissent in Salerno: “But the very pith and purpose of this statute is an abhorrent limitation of the presumption of innocence.” 481 U.S. at 762-63. Second Circuit in United States v. Sabhnani, 493 F.3d 63, 76 & n17 (2d Cir. 2007) (noting in text that evidence against defendants “appears strong” and in a footnote that defendants “will, of course, enjoy a presumption of innocence at trial.”) Second Circuit in United States v. Dillard, 214 F.3d 88, 103 (2d Cir. 2000): “We do not agree ... that the presumption of innocence requires courts to construe the [Bail Reform] Act narrowly.” F. Right to Be Present 1. Ordinary cases Defendant has right to be present arraignment, where bail hearing usually takes place. Fed.R.Crim.P. 5(d)(3). Can be waived by defense for adjourned hearing. No right to be present under Fed.R.Crim.P. 43 at hearing where bail conditions are modified. United Staets v. Zuccaro, 645 F.2d 104, 106 (2d Cir. 1981) (per curiam). 2. Rule 5(c)(3) cases Bad law: United States v. El Edwy, 272 F.3d 149 (2d Cir. 2001) (under § 3145, court in wanting jurisdiction could detain defendant after local judge set bail). II. Old-Law Bail Practices in Federal Court Relied primarily on money bonds Less flexibility for judges in fixing conditions Practice was to set high bail for defendants perceived to be dangerous 2

III. The Bail Reform Act of 1984, 18 U.S.C. § 3142 et. seq. A. Overview B. The Court’s Bail Options - § 3142(a) “Upon appearance” before a judicial officer, the officer has 4 options: 1. Release on recognizance or unsecured appearance bond under § 3142(b) 2. Release on condition or combination of conditions under § 3142(c) 3. Temporary detention to permit revocation of conditional release or removal from the United States under § 3142(d) 4. Detention under § 3142(e). Note that detention is only available in cases that are subject to § 3142(e). C. Factors the Court Must Consider Section 3142(g) provides that in making the bail decision the court must consider: 1. The nature and circumstances of the offense charged 2. The weight of the evidence 3. The defendant’s “history and characteristics,” including whether he was conditional release, pretrial release or release pending sentence or appeal 4. The “nature and seriousness of the danger to any person or the community that would be posed by the person's release.” D. Source-of-Funds Hearings Section 3142(g)(4): Court can, and must, if the Government asks, conduct a hearing into the source of any collateral and “shall” reject it if “because of its source” it will not “reasonably assure” the defendant’s appearance. United States v. Nebbia, 357 F.2d 303, 304 (2d Cir. 1966) (“[T]he mere deposit of cash bail is not sufficient to deprive the court of the right to inquire into other factors which might bear on the question of the adequacy of the bail and stress the importance placed upon the ability of the surety to produce the defendant.”) United States v. Huckabay, 707 F. Supp. 35, 43 (D. Me. 1989) (court, on its own motion, rejected source of funds in a drug trafficking case and ordered defendant detained). 3