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Criminal Adjudication
University of South Carolina School of Law
Miller, Colin

Miller  Criminal Adjudication  Fall 2013
 
Pretrial Release (p 1)
 
-Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  
 
-A court violates due process by setting bail at an unusually high amount based on the indictment alone
 
-Bail set at a figure higher than an amount reasonably calculated to ensure the defendant’s presence at trial violates the Eighth Amendment.
 
-most state constitutions contain some right to bail (bottom of p 1)
 
            -S.C. Const. Article I, Section 15
 
“All persons shall be, before conviction, bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event. Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel, nor corporal, nor unusual punishment be inflicted, nor shall witnesses be unreasonably detained.”
 
Federal Bail Reform Act:
 
18 U.S.C. § 3141(a) (p 2)
 
18 U.S.C. § 3141(a) states that
 
A judicial officer authorized to order the arrest of a person under section 3041 of this title before whom an arrested person is brought shall order that such person be released or detained, pending judicial proceedings, under this chapter.
 
18 U.S.C. § 3142(a) (p 2)
 
18 U.S.C. § 3142(a) states that
 
Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be
 
(1) released on personal recognizance or upon execution of an unsecured appearance bond, under subsection (b) of this section; (this is the baseline presumption) (see 3142(b))
 
(2) released on a condition or combination of conditions under subsection (c) of this section;
 
(3) temporarily detained to permit revocation of conditional release, deportation, or exclusion under subsection (d) of this section; or
 
(4) detained under subsection (e) of this section.
 
18 U.S.C. § 3142(b) (p 2)
 
18 U.S.C. § 3142(b) states that
 
The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial officer 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.
 
-Under the Federal Bail Reform Act, the baseline presumption is release on personal recognizance or an unsecured appearance bond
 
18 U.S.C. § 3142(c)(1): Conditions on Release (p 3)  (for this section to apply the prosecution must prove that release conditions under 3142(b) will not reasonably assure the defendant’s appearance or will endanger the safety of others)
 
If the prosecution can overcome the presumption contained in § 3142(b) but cannot convince the judge that the defendant needs to be detained pending trial, the defendant will be released pursuant to 18 U.S.C. § 3142(c), which states that
 
(1) If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person—
 
(A) subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a); (same as 3142(b)) and
 
(B) subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person
 
(p 3) (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;
 
-Courts are split over whether a third party custody release can entitle a defendant to a sentencing credit (dawson v scott did not allow sentencing credit.  However, if you are in jail because you couldn’t make bond then that would count as sentencing credit)
 
(p 4) (ii) maintain employment, or, if unemployed, actively seek employment; (in some circumstances may have to tell employer about issues with computer access)
 
(p 4) (iii) maintain or commence an educational program; (helps defendant better re-enter society, create ties to community, reduce motive to commit crimes for money)
 
(p 4) (iv) abide by specified restrictions on personal associations, place of abode, or travel; (don’t want defendant to be in a high crime area or be tempted to engage with criminals, or to intimidate witness)
 
(p 5) -a prohibition on a defendant’s cooperation with law enforcement officials is not appropriate absent extraordinary circumstances which make such a condition “truly necessary to assure a defendant’s appearance or protect the public safety.”
 
(p 5) (v) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense; (don’t want defendant to kill or intimidate witness or victim)
 
-Courts generally find no problem with no contact order for government witnesses as long as defense counsel has access (may give your attorney questions to ask)
 
(p 6) (vi) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency; (helps ensure defendant is complying with bail conditions)
 
(p 6) (vii) comply with a specified curfew; (want to deter crimes that occur at night, keep defendant out of bars late at night etc…)
 
(p 6) (viii) refrain from possessing a firearm, destructive device, or other dangerous weapon; (don’t want to allow a defendant to be more dangerous to the public or law enforcement) (look at this when defendant is trying to cooperate with govt as an informant)
 
(p 7) (ix) refrain from excessive use of alcohol, or any use of a narcotic drug

 
-§ 3142(f)(1)(A): The prosecutor can move for a detention hearing if the defendant is charged with one of three types of crimes:  (a defendant can waive a detention hearing.  Just because there is a detention hearing doesn’t mean defendant will be detained)
 
            -sex trafficking of children and trafficking of children by force, fraud, or coercion;
 
-federal crimes of terrorism, provided that the crime charged carries a maximum punishment of 10 years or more incarceration 
 
-crimes of violence as defined in U.S.C. §3156(a)(4) (defined as:
(1)   – any offense that has an element of violence, the use, attempted use, or threatened use of physical force against the person or property of another
(2)   any offense that’s a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense
(3)   any felony under 109(A) (sexual abuse), 110 (sexual exploitation of a minor), of 117 (domestic assault by a habitual offender)
 
 
(p 12)-§ 3142(f)(1)(B): The prosecutor can move for a detention hearing if the defendant is charged with “an offense for which the maximum sentence is life imprisonment or death.”  
 
(p 12)-§ 3142(f)(1)(C): The prosecutor can move for a detention hearing if the defendant is charged with a federal drug crime with a maximum punishment of 10 years or more.
 
(p 13)-§ 3142(f)(1)(D): The prosecutor can move for a detention hearing if the defendant is charged with any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses.  
(1)   must be charged with a felony
(2)   must be convicted of 2 or more offenses listed in A-C
 
(p 13)-§ 3142(f)(1)(E)The prosecution can move for a detention hearing if the defendant is charged with one of three types of felonies:   
 
any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon, or involves a failure to register under section 2250 of title 18, United States Code.  
 
-courts are split over whether a crime attempted against an undercover officer posing as a minor “involves a minor victim”  (this is becoming more common)
 
(p 14) 18 U.S.C. § 3142(f)(2): Prosecution or Judge’s Motion
 
Upon motion of the attorney for the Government or upon the judicial officer’s own motion in a case that involves: