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Criminal Procedure II
University of Mississippi School of Law
Clancy, Thomas K.

Criminal Procedure II

INTRODUCTION- Incorporation of the Bill of Rights through the 14th Amendment

Options for incorporation doctrine:

Total adoption- universally rejected
Fundamental rights approach- fundamental fairness test applied to see which rights are fundamental in the Bill of Rights and therefore making it applicable to the states.
Selective incorporation- None of the rights in the Bill of Rights are, per se, incorporated but rights that are “fundamental” are applied to the state. This is the one adopted.

Basically none of the 5th, 6th, bail provision in the 8th are adopted.

PRETRIAL RELEASE (refer to Alice Smith hypo)

In general, there is a presumption for release on personal recognizance or execution of unsecured bond unless they are:

A flight risk – cannot reasonably assure defendant’s appearance
Danger to the community: 18 USC §3142(b)

Statutory criteria for release §3142(g) – page 53, supplement

Nature, circumstances of offense
Weight of evidence
Financial ability of Δ to get bail
Character of Δ (crim history, community ties, employment, etc)

Setting conditions for release: must set the least restrictive.

Also contains list of conditions §3142 (c)(1)(B)

Nonfinancial such as home detention, supervised release, stay-away orders, restrictions on travel, third party release, drug tests, etc.
Financial- bonds

Surety: bondsman puts up $, Δ pays 10% service fee.
Unsecured: Δ only pays if he fails to show.
% Bond: Def. pay certain % of bond – gets back if he shows up.
§3142(c)(2) provides that a financial condition that results in pretrial detention is impermissible.

Consequences of Violation of Conditions (§3146)

Failure to appear is a crime (see statutory punishment scheme (§3146(b))

10 yrs for capital crime/felony, 1 yr for misdemeanor. Sentences run consecutively

Bond forfeiture (§3146(d))
Committing another crime while on release (§3147)
Sanctions for violation of a release condition (§3148)

contempt of court
revocation of release


Dangerousness- clear and convincing
Flight risk- preponderance

Hamdi – a US citizen held indefinitely as an enemy combatant has to be given a “meaningful opportunity” to contest the factual basis for his detention before a “neutral decision-maker.” This would be on the merits, not just whether he should be released or not. It’s not really analogous to Salerno.


Prosecutorial discretion

Who to charge; what to charge; how to proceed with case (diversion, plea bargains); sentencing enhancements recommendations; probation revocations, etc.

Constitutional Limitations:

US v. Armstrong

What is a “selective prosecution” claim? Violation of equal protection – prosecution on the basis of race or some other discriminatory purpose.
Facts: 5th Amd. equal protection claim; Blacks arrested more frequently for selling crack cocaine.