III. Release Or Detention

• Jurisdiction: North Carolina

III. RELEASE OR DETENTION

After arrest, a defendant must have an initial appearance in front of a magistrate judge, who will determine whether to release the defendant and under what conditions. Under the Bail Reform Act of 1984 (18 U.S.C. § 3142, et seq.), the judge must impose the least restrictive set of conditions that will reasonably assure (1) the appearance of the defendant at court and (2) the safety of others and the community. Unlike in state court, a federal defendant's pretrial release is not usually predicated on monetary bail, but instead is governed by pretrial conditions of release, which are overseen by the U.S. Probation Office. Thus, pretrial release in federal court is often much like probation. However, the Act also creates a rebuttable presumption that no conditions of release will satisfy the twin goals of the Act (mitigate flight risk and protect the safety of the community) for defendants charged with certain violent felonies or firearm or drug crimes.¹⁰ Such defendants will often be detained pending trial unless the prosecutor consents to their release, which typically occurs when a defendant is attempting to cooperate in an investigation.

If a federal prosecutor seeks pretrial detention without bail at the initial appearance, the defendant may receive up to a five-day continuance and the government may seek a continuance of up to three days of the detention hearing. The hearing operates as a mini bench trial before a magistrate judge, who will consider a number of factors set forth in § 3142(g).¹¹ If the charges carry a rebuttable presumption of pretrial detention, the defendant puts on evidence first to attempt to rebut the presumption, a showing that usually must include a suitable third-party custodian who agrees to house the defendant and enforce any conditions of pretrial release imposed by the court. In nonpresumption cases, the prosecutor puts on evidence first, typically eliciting testimony from a law enforcement agent about the nature of the allegations and the defendant's criminal record. Importantly, the U.S. Probation Office will conduct a pretrial interview of a defendant before any detention hearing and generate a report given to the magistrate judge deciding the issue of pretrial release, which may include information on the defendant's scars, gunshot wounds, gang-related tattoos, the defendant's residence prior to arrest, employment or lack thereof, substance abuse, mental health issues and treatment and other...