Bail and Detention in Federal Criminal Proceedings
| Publication year | 1993 |
| Pages | 913 |
| Citation | Vol. 05 No. 1993 Pg. 913 |
1993, May, Pg. 913. Bail and Detention in Federal Criminal Proceedings
The Bail Reform Act of 1984 ("1984 Act" or "Act") was enacted as part of the Comprehensive Crime Control Act of 1984. Bail reform was only one of the matters addressed by the Crime Control Act, which also dealt with sentencing, the insanity defense, drug penalties and criminal forfeiture. The 1984 Act marked the first significant change in bail procedures in eighteen years.
Since 1984, the Act has continued to evolve, although there has not been much guidance in terms of case law or written analyses. This article considers various aspects of the 1984 Act: its history, constitutionality and scheme. It then discusses special situations; the review and appeal of release or detention orders; and sanctions. It is hoped that this overview will provide attorneys with information needed to help them interpret the Act's provisions.
The predecessor of the 1984 Act, the Bail Reform Act of 1966, was in its own right a revolutionary piece of legislation. Prior to 1966, the federal courts relied almost exclusively on monetary bonds as the means for assuring a defendant's presence for court proceedings. However, this practice had the unacceptable effect of detaining many defendants simply because they were unable to post bond.(fn1) The 1966 Act established nonmonetary conditions that could be imposed in connection with pretrial release which would reasonably assure the defendant's appearance for court proceedings.(fn2)
While viewed as a clear improvement over prior bail procedures, the 1966 Act was deficient in several respects. Its most glaring omission was its failure to recognize dangerousness as an appropriate consideration in pretrial release decisions.(fn3) Thus, in noncapital cases, the defendant was required to be released under those minimal conditions necessary to assure his or her presence at trial, even if release under such conditions would pose a serious threat to the safety of the community.
The lack of any procedure for detaining persons on the basis of their danger to the community forced courts to adopt one of two unacceptable alternative procedures. Some judges applied the 1966 legislation literally and released dangerous defendants on conditions that would reasonably assure that they would return for court proceedings. Other judges who were not inclined to ignore the safety of the community would simply find some reason, such as flight risk, to detain the defendant, usually by imposing a high monetary bond.(fn4)
The 1966 Act also was severely criticized for its failure to recognize and deal with the problem of crimes committed by those on pretrial release. This criticism was supported by several studies which showed that a significant number of defendants released pending trial were rearrested after committing new criminal offenses.(fn5) In addition, concerns were voiced that the practice of imposing excessive monetary conditions as a means of effectuating de facto detention of dangerous persons discriminated against indigent defendants and precluded those subjected to this practice from directly addressing the true basis for the court's decision.(fn6)
The 1984 Act meets these criticisms and concerns in four ways.(fn7) First, it expressly mandates that the courts take safety risk into account in setting conditions of pretrial release.(fn8) Second, judicial officers are vested with authority to detain defendants who pose flight or safety risks that cannot be eliminated through any release conditions.(fn9) Third, the legislation expands the prior list of conditions which may be imposed in connection with pretrial release.(fn10) Finally, a procedure is established for temporarily detaining those persons who are on some form of conditional release at the time of their arrest or are illegal aliens.(fn11)
Two constitutional provisions have potential impact on matters of pretrial release and detention: the Eighth Amendment's prohibition against excessive bail and cruel and unusual punishment, and the due process clause of the Fifth Amendment. The threshold question posed by the Eighth Amendment is whether a defendant
This issue was addressed by the District of Columbia Court of Appeals, which upheld the constitutionality of the detention provisions of the District of Columbia Code. After reviewing the history of the Eighth Amendment, the appellate court concluded that it was intended as a limitation on judicial discretion exercised in setting monetary bonds in individual cases, and was not a restriction on Congress' power to deny pretrial release for certain crimes or defendants.(fn12) The court also rejected a due process challenge based on the contention that pretrial detention unconstitutionally punished persons who had not been found guilty of any offense. In this regard, the court relied on the reasoning in a prior decision of the U.S. Supreme Court(fn13) that pretrial detention was a regulatory measure, "designed to curtail reasonably predictable conduct, not to punish for prior acts."(fn14)
The drafters of the 1984 Act undertook a thorough analysis of the constitutionality of pretrial detention and, in particular, whether detention based on dangerousness met constitutional muster. In essence, they concluded that the constitutional viability of detention predicated on safety risk turned on the answers to two questions: (1) whether future criminality can be predicted with any degree of accuracy; and (2) whether criteria can be established which will separate those few persons who pose unreasonable safety risks from those who do not. The Senate Committee on the Judiciary resolved both of these questions in the affirmative, stating:
In sum, the Committee has concluded that pretrial detention is a necessary and constitutional mechanism for incapacitating, pending trial, a reasonably identifiable group of defendants who would pose a serious risk to the safety of others if released.(fn15)
The U.S. Supreme Court has confirmed the view of the Senate Judiciary Committee by holding that the 1984 Act is constitutional on its face.(fn16) The Court recognized that pretrial detention of a narrow class of dangerous defendants is regulatory, rather than punitive in nature. The Court also concluded that the Act does not run afoul of the Eighth Amendment's proscription against excessive bail.
There has been a significant amount of litigation regarding the constitutionality of the Act as applied to specific cases. Generally, challenges have revolved around the question of how long a defendant awaiting trial may be detained before his or her due process rights are infringed. For example, the U.S. Court of Appeals for the Tenth Circuit has held that detention of a defendant as a flight risk for over four months was excessive.(fn17) On the other hand, pretrial confinement for over sixteen months was deemed not violative of due process by the Court of Appeals for the First Circuit.(fn18)
The constitutionality of the duration of detention in a particular case cannot be determined solely by the length of the confinement. The court also must take into account the totality of the circumstances, including the complexity of the case, whether the government or the defendant occasioned the delay, and the strength of the evidence of flight risk and dangerousness.(fn19)
The Act strongly favors release pending trial, while at the same time provides ample power to enable the court to detain a defendant pending trial where appropriate. Flight risk and dangerousness are the dual considerations in determining whether to release a defendant prior to trial and, if so, under what terms and conditions.
A three-tiered approach to the issue of pretrial release is established by the Act. First, if the defendant does not pose a risk of flight or a danger to another person or the community, the Act mandates release on either a personal recognizance or unsecured bond.(fn20) Second, if the defendant is either a risk of flight or a safety risk, but the danger can be eliminated by measures short of detention, the court may impose additional conditions which will reasonably assure that the defendant will return for court proceedings or reasonably assure the safety of the community or any other person.(fn21) Third, pretrial detention may be ordered after an evidentiary hearing.(fn22) In order to detain, the court must find that no condition or combination of conditions that could be imposed in connection with pretrial release would reasonably assure the defendant's appearance at court proceedings or would reasonably assure the safety of the community or any other person.(fn23)
The court is vested with the ultimate responsibility for determining whether the defendant should be released pending trial and, if so, under what terms and conditions. The court's power in this regard is limited only by the mandates of the U.S. Constitution and the 1984 Act. Generally, the day-to-day implementation of the Act is the duty of the U.S. magistrate judges.
In 1982, Congress required the Director of the Administrative Office of United States Courts to establish a department of Pretrial Services in each judicial district.(fn24) This department is supervised by a chief officer selected by a panel that includes the chief judge of the circuit, the chief judge of the district and a magistrate judge of...
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