Release on Bail How many of you routinely have your clients released on bail? On which types of cases are you obtaining bail?
Would you ask for bail in these scenarios? Illegal Reentry Case? Possession of Child Pornography? Felon in Possession of a firearm?
Would you ask for bail in these scenarios? Crack Case – Min 10 yrs, possible 851, prior state drug case Supervised Release Violation – facing 16 mos, client’s mother is dying Client’s second Medicare fraud case, received 37 month sentence - resentencing after appeal, served 9 mos
18 USC Section 3142 upon appearance – the judge shall issue an order that the person be released on: 1) personal recognizance or unsecured appearance bond; 2) released with conditions; 3) temporarily detained; or 4) detained
Starting Point of Act - Release Release (personal recognizance or unsecured appearance bond) is the starting point If - flight risk or a danger then conditions of release may be set
Conditions no new crime, DNA sample 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--
(i) remain in the custody of a designated person; (ii) seek or maintain employment (iii) educational program; (iv) abide by specified restrictions on personal associations, place of abode, or travel; (v) avoid contact with victim and witnesses; (vi) report to law enforcement agency, pretrial services agency, or other agency; (vii) comply with a curfew; (viii) refrain from possessing a firearm, destructive device, or other dangerous weapon; (ix) refrain from excessive use of alcohol, or drugs; (x) undergo available medical, psychological, or psychiatric treatment;
(xi) execute a property bond, which can include money, as is reasonably necessary to assure the appearance of the person as required; (xii) execute a 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.
Important Provisions (2) The judicial officer may not impose a financial condition that results in the pretrial detention of the person. (3) The judicial officer may at any time amend the order to impose additional or different conditions of release.
Pretrial Detention Only If (e) Detention.--(1) If, after a detention hearing Finding that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community
Gov’t Can Move to Detain Crime of violence - an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another; an offense listed in §2332b(g)(5)(b) - terrorism offense (10 year max) Sexual Abuse felony or offense with max of life or death Drug offense – max 10 years or more Felony with minor victim or possession or use of a firearm, destructive device or dangerous weapon, or failure to register as a sex offender Or serious risk of flight, witness tampering or obstruction of justice (Rebuttable presumption)
Court Can Sua Sponte Move for Detention Hearing serious risk of flight, witness tampering or obstruction of justice
Detention Hearing Determine if there is any condition or combination of conditions that will reasonably assure the appearance safety of any other person and the community.
FACTORS FOR COURT Nature and circumstances of the offense Weight of the evidence History and characteristics Physical and mental condition Family ties
Factors to Consider Employment Financial Resources Length of Residence in Community Community Ties Past Conduct
Factors to Consider History of Drug/Alcohol Abuse Criminal History Record of Appearances for Court Whether Client was on probation or parole Nature and seriousness of danger posed by release
Presumption of Innocence (j) Presumption of innocence.-- Nothing in this section shall be construed as modifying or limiting the presumption of innocence.
Previous Examples Illegal Reentry Case? Possession of Child Pornography? Felon in Possession?
Previous Examples Crack Case – Mand Min 10 yrs, 851 possible, prior state drug case Supervised Release Violation – client’s mother is dying Client’s second Medicare fraud case, received 37 month sentence - resentencing after appeal, served 9 mos