Criminal Adjudication Outline

Criminal Adjudication Final Outline—Colin Miller Fall 2012

Pretrial Release

Constitutional Considerations

-Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

-Bail set at a figure higher than an amount reasonably calculated to ensure the defendant’s presence at trial violates the Eighth Amendment.

-A court violates due process by setting bail at an unusually high amount based on the indictment alone

-Most state constitutions contain some right to bail

Federal Bail Reform Act of 1984

18 U.S.C. §3141(a)

(a) Pending Trial.

-Under 18 U.S.C. §3141(a), judicial officers (state or federal judges/justices, magistrates, justices of the peace, and city mayors) have the power to decide whether to release a defendant before trial.

18 U.S.C. §3142(b)

(b) Release on Personal Recognizance or Unsecured Appearance Bond.

-Under 18 U.S.C. §3141(b), the judge shall order pretrial release on personal recognizance or an unsecured bond, subject to the conditions that:

(1) the defendant not commit a crime during the period of release; and

(2) the defendant cooperate in the collection of a DNA sample, if such a sample is authorized;

unless the judge determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

18 U.S.C. §3142(c)

(c) Release on Conditions.

-Under 18 U.S.C. §3141(c)(1), if release pursuant to (b) will not provide such assurance, the judge shall order pretrial release subject to the same conditions in (b) AND

-under §3141(c)(1)(A), the defendant not commit a crime during the period of release and cooperate in the collection of a DNA sample, if such a sample is authorized; and

-under §3141(c)(1)(B), subject to the least restrictive further condition, or combination of conditions, that the judge determines will reasonably assure the appearance of the defendant as required and the safety of any other person and the community, which may include the condition that the defendant

-(i) remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the judicial officer that the person will appear as required and will not pose a danger to the safety of any other person or the community

-(ii) maintain employment, or, if unemployed, actively seek employment;

-(iii) maintain or commence an educational program;

-(iv) abide by specified restrictions on personal associations, place of abode, or travel;

-(v) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

-(vi) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency;

-(vii) comply with a specified curfew;

-(viii) refrain from possessing a firearm, destructive device, or other dangerous weapon;

-(ix) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance without a prescription by a licensed medical practitioner

-(x) undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose

-(xi) execute an agreement to forfeit upon failing to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required, and shall provide the court with proof of ownership and the value of the property along with information regarding existing encumbrances as the judicial office may require

-(xii) execute a bail bond with solvent sureties; who will execute an agreement to forfeit in such amount as is reasonably necessary to assure appearance of the person as required and shall provide the court with information regarding the value of the assets and liabilities of the surety if other than an approved surety and the nature and extent of encumbrances against the surety’s property; such surety shall have a net worth which shall have sufficient unencumbered value to pay the amount of the bail bond

-(xiii) return to custody for specified hours following release for employment, schooling, or other limited purposes; and

-(xiv) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.

-In any case that involves a minor victim under various sections or a failure to register (sex offender) offense, any release order shall contain, at a minimum, a condition of electronic monitoring and each of the conditions specified at subparagraphs (iv), (v), (vi), (vii), and (viii).

-under §3142(c)(2), the judge may not impose a financial condition that results in the pretrial detention of the person (Was the condition pretextual?)

-under §3142(c)(3), the judge may at any time amend the order to impose additional or different conditions of release

18 U.S.C. §3142(f)

(f) Detention Hearing.

-Under 18 U.S.C. §3142(f), the judge shall hold a hearing to determine whether any condition or combination of conditions set forth in (c) will reasonably assure the appearance of such person as required and the safety of any other person and the community:

-(1) upon a motion of the attorney for the government, in a case that involves:

(A) acts of terrorism punishable by 10 or more years’ incarceration, crimes of violence, or sex trafficking of children;

-(B) an offense punishable by life imprisonment or death;

-(C) a drug crime punishable by 10 or more years’ incarceration;

-(D) any felony if the defendant has 2 prior convictions under (A)-(C) or state counterparts;