BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial

        1.03 Release Or Detention Pending Trial (18 USC 3141–3148; FRCP 46)

        1.03.1 Release Or Detention Pending Trial: Inquiries And Procedures
        1.03.2 Release Or Detention Pending Trial: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1.03.1 Release Or Detention Pending Trial: Inquiries and Procedures

[Note: Under the Crime Victims’ Rights Act, 18 USC 3771(a)(2) and (3), any victim of the offense has the right to notice of "any public court proceeding . . . involving the crime . . . of the accused," and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if so, whether the government has fulfilled its duty to notify them. Victims also have a right "to be reasonably heard at any public proceeding in the district court involving release" of the defendant. § 3771(a)(4).]

A.    Preliminary

    1. Ask the defendant:

(a) What is your full name?

(b) How old are you?

(c) Do you have an attorney?

[If the defendant is unrepresented by counsel, inform the defendant of his or her right to counsel, and appoint counsel if the defendant is qualified (see supra section 1.02: Assignment of counsel or pro se representation).]

    2. If you are not sure the defendant understands English, ask the defendant:

Are you able to speak and understand English?

[If the defendant has an attorney, ask counsel if he or she has been able to communicate with the defendant in English. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 USC 1827.]

    3. Ask the U.S. attorney whether the government wants to move for detention under 18 USC 3142(d) or (e). If the motion is made, hold the appropriate hearing. This may require a continuance (not to exceed five days on the defendant’s motion, three days on the government’s motion, except for good cause). 18 USC 3142(f). If the motion is not made, proceed to the bail inquiry.

B.     Bail inquiry [FOOTNOTE 1]

1. Review any pretrial services report provided by the probation office.

2. Hear information relevant to considerations for fixing bail:

(a) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves narcotics;

(b) the weight of the evidence against the accused;

(c) the history and characteristics of the accused, including

(i) character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history of drug or alcohol abuse, criminal history, and record concerning appearances at court proceedings;

(ii) whether, at the time of the current offense or arrest, the defendant was on probation or parole or on release pending trial, sentencing, appeal, or completion of sentence under federal, state, or local law;

(d) the nature and seriousness of danger to any person or the community if the accused is released. [FOOTNOTE 2] 18 USC 3142(g).

(e) In a case involving domestic violence, stalking, or violation of a protective order, give the alleged victim an opportunity to be heard regarding the danger posed by the defendant. 18 USC 2263.

(f) Give any other victims present in the courtroom "an opportunity to be reasonably heard." 18 USC 3771(a)(4).

3. If a secured bond or surety bond is being considered, inquire about the defendant’s financial resources and, if appropriate, the sources of any property to be designated for potential forfeiture or offered as collateral. See 18 USC 3142(c)(1)(B)(xii), (c)(2), and (g)(4).

C.     If there is a pretrial services agency in your district (18 USC 3154), use the report of the interview by the pretrial services officer as an aid to fixing bail. If you do not have a pretrial services agency, consult the probation office.

D.     In developing information from the defendant relevant to bail, the following questions are typical:

[Note: This information is usually included in the pretrial services report and is based on an interview of the defendant and independent verification of the information provided.]

1. Are you married?

2. Do you have any children?

3. Are you living with your spouse or children? Do you support your spouse or children?

4. Do you support or live with anyone else? Who?

5. Are you employed?

6. How long have you worked for your current employer?

7. What is your average weekly or monthly take-home pay?

8. Do you own an automobile?

9. Do you have a savings account, bonds, stocks, or similar liquid assets?

10. Do you own or rent your home?

11. Do you own any other real property?

12. How long have you lived at your current address?

13. How long have you lived in this city [state] or the surrounding area?

14. Do you have a telephone? Where can you be reached by telephone?

15. Do you possess a passport?

[Note: The defendant might be asked to deposit his or her passport with the marshal (or bailiff) as a condition of bail.]

16. Do you owe anyone money? Do you have to make mortgage payments, time payments, or other periodic payments?

17. Are you regularly receiving medical treatment?

18. Have you ever been treated or hospitalized for mental illness?

E.     Ask the U.S. attorney for the defendant’s rap sheet (fingerprinting record) to determine past convictions and the issuance of bond forfeiture warrants indicating prior failure to appear for scheduled court hearings.

[Note: This information is also typically included in the pretrial services report.]

F.     Set bail with appropriate conditions, 18 USC 3142(b) or (c), or hold a detention hearing under § 3142(f). If you do not hold a detention hearing:

1. In setting bail, determine whether appearance and community safety can reasonably be ensured by releasing the accused on personal recognizance or on an unsecured appearance bond with only the condition that the accused not commit a crime while on release.

2. If you determine that further conditions are necessary, set them. Do not set a financial condition that the defendant cannot meet.

3. Explain the conditions to the defendant.

4. Execute a release order and obtain the defendant’s written acknowledgment of the conditions of release and the consequences of violation.

5. Tell the defendant when to appear in court again, or explain how he or she will be advised when next to appear in court.

6. Explain to the defendant, as 18 USC 3142(h)(2) requires,

(a) that failing to appear in court as required is a crime for which he or she can be sentenced to imprisonment (18 USC 3146);

(b) that if the defendant violates any condition of release, a warrant for arrest may be issued, and he or she may be jailed until trial and may also be prosecuted for contempt of court (18 USC 3148);

(c) that committing a crime while on release may lead to more severe punishment than he or she would receive for committing the same crime at any other time (18 USC 3147); and

(d) that it is a crime to try to influence a juror, to threaten or attempt to bribe a witness or other person who may have information about this case, to retaliate against anyone for providing information about the case, or to otherwise obstruct the administration of justice (18 USC 1503, 1510, 1512, 1513).

7. As required under § 3142(h)(1), include in the release order a written statement that clearly sets forth all the conditions of release to which the defendant is subject. Also, "state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant." Fed. R. App. P. 9(a)(1).

G.     If temporary detention for up to ten days is sought under 18 USC 3142(d):

1. Ask the U.S. attorney to state the factual basis for the motion.

2. Give the defendant’s counsel an opportunity to respond.

3. Determine whether the defendant fits within one or more of the categories set forth in 18 USC 3142(d)(1).

4. If the defendant fits within one or more of these categories, determine whether he or she "may flee or pose a danger to any other person or the community." 18 USC 3142(d)(2). If so, detention is mandatory.

5. If detention for up to ten days is not ordered, proceed to the release inquiry. If detention for up to ten days is ordered:

(a) Direct the U.S. attorney to notify the appropriate officials immediately and to notify the court and the defendant’s counsel immediately if any such official expressly declines or fails to take the defendant into custody.

(b) Fix a date and time for a bail hearing to be held in the event that the defendant is not taken into custody by any such official.

(c) Execute a temporary detention form.

H.     If pretrial detention has been sought under 18 USC 3142(e), conduct the required hearing under § 3142(f) (see § 3142(g) and paragraphs B to E supra for factors to consider):

1. Make findings of fact and state the reasons for the decision. If detention is ordered, these must be written. 18 USC 3142(i)(1). See also Fed. R. App. P. 9.

2. If detention is not ordered, set bail, if any, impose conditions of release under § 3142(b) or (c), and issue a release order pursuant to 18 USC 3142(h). See paragraphs B to F supra.

3. If detention is ordered, execute a pretrial detention order that meets the requirements of 18 USC 3142(i).

FOOTNOTES:

 Footnote 1:    Paragraphs B through F of this section cover procedures for setting bail when detention is not requested, or when detention is denied and conditions of release must be set. The information obtained under paragraphs B through E is also relevant to deciding whether to detain the defendant under 18 USC 3142(f). See paragraph H infra. 

Footnote 2:     A crime victim has the right “to be reasonably protected from the accused.” 18USC 3771(a)(1).

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1.03.2 Release Or Detention Pending Trial: Other Sources

David N. Adair, Jr., The Bail Reform Act of 1984 (3d ed. 2006)