CHAPTER 35.-RELEASE AND CONFINEMENT PENDING JUDICIAL

DETERMINATION

Chapter 35 consists of two subchapters. The first, entitled: "Release Pending Judicial Proceedings," is a virtually verbatim reenactment of the current Bail Reform Act. The second subchapter, entitled: "Confinement Pending Judicial Proceedings," deals with the procedures for commitment to custody and discharge from custody of an arrested but unconvicted person.

SUBCHAPTER A.-RELEASE PENDING JUDICIAL PROCEEDINGS

(Sections 3501-3508)

This subchapter, for the most part, carries forward the provisions of the Bail Reform Act of 1966, as amended. In some instances, the language and structure of the various provisions have been changed to be consistent with the rest of the proposed Criminal Code; substantive changes, however, are few and those changes that were made will be discussed in greater detail in the context of the various sections.

SECTION 3501. RELEASE AUTHORITY GENERALLY

This section carries forward the provisions of 18 U.S.C. 3141. Although the language and structure of the provisions have been modified, there are no substantive changes. Instead of using the term "bail," this provision and other provisions in the subchapter use the term "release." The word "judge," which is used throughout these provisions, is defined in section 111 as "any judicial officer and includes a justice of the Supreme Court and a magistrate." Judicial officer would thus include those State judicial officers who are authorized to arrest and commit offenders. This carries forward the present interpretation of 18 U.S.C. 3141. In capital cases, only judges of a court of the United States that has original jurisdiction in criminal cases are authorized to grant release; this, too, is current law under 18 U.S.C. 3141. Accordingly. United States magistrates are not empowered to grant release in capital cases since their jurisdiction in criminal cases is derived solely from the district court. However, they come within the definition of the term "judge" and are empowered to order a pretrial release in a non-capital case.

1 18 U.S.C. 3146 et seq.

SECTION 3502. RELEASE PENDING TRIAL IN A NON-CAPITAL CASE

This section, for the most part, embodies the provisions of section 18 U.S.C. 3146-the primary statute contained in the Bail Reform Act. The section reaffirms the basic proposition of the Bail Reform Act and its court interpretations that in non-capital cases a person is to be released under those minimal conditions reasonably required to assure his presence at trial.1 The conditions of release to be set in the individual case are left to the discretion of the judges as long as the conditions set are those that are reasonably necessary to assure the presence of the person at later court appearances. While the imposition of money bond is permitted under this section, it is to be imposed only after the court has determined that all other nonfinancial conditions have been found inadequate. Under subsection (a) (5) the court is granted wide discretion in devising conditions that will assure the presence of the person.

Subsection (b) provides that in determining the release conditions to be imposed, the judge shall take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, and the history and characteristics of the accused, including his character, mental condition, family ties, employment, length of residence in the community, financial resources, record of convictions, and record of appearance or non-appearance at court proceedings.*

Subsection (c) provides that when a judge authorizes release on specified conditions, he is to issue an order stating the conditions of release and to advise the person of the penalties applicable to a violation of the conditions and that a warrant for his arrest will be issued immediately upon such violation. A similar provision exists in current law. This subsection, however, specifically provides that failure to render such advice is not a bar or defense to prosecution under section 1312 (Bail Jumping). This carries forward the intent of Congress in enacting the Bail Reform Act and the judicial interpretation of the Act. The purpose of such advice is solely to impress upon the person the seriousness of failing to appear when required; such warnings were never intended to be a prerequisite to a bail jumping prosecution.

6

Under subsection (d) a person whose release is authorized upon the fulfillment of certain conditions may, if he cannot meet these conditions within twenty-four hours after his hearing, petition the judge for reconsideration of the conditions imposed. Similarly, a person who is ordered released on a condition that requires him to return to custody after specified hours may petition the judge for review of this condition. If the judge refuses to change the conditions, he then must state in writing the reasons for continuing the conditions imposed. Subsection (e) authorizes the judge to amend, at any time, his order granting release and authorizes him, at any time, to impose additional

1 See United States v. Cramer, 451 F.2d 1198 (5th Cir. 1971): United States v. Smith, 444 F.2d 61 (8th Cir. 1971), cert. denied, 405 U.S. 977 (1972). The only recognized exception to this rule in pretrial non-capital cases is in a situation where the defendant has threatened a potential witness against him. See United States v. Gilbert, 425 F.2d 490 (D.C. Cir. 1969).

2 See United States v. Cook, 428 F.2d 460 (5th Cir. 1970).

3 See United States v. Leathers, 412 F.2d 169 (D.C. Cir. 1969); United States v. Melville, 306 F. Supp. 124 (S.D.N.Y. 1969).

4 See Wood v. United States, 391 F.2d 981 (D.C. Cir. 1968); United States v. Alston, 420 F. 24 176 (D.C. Cir. 1969).

518 U.S.C. 3146 (c).

6 See United States v. De Pugh, 434 F.2d 548 (8th Cir. 1970), cert. denied, 401 U.S. 978 (1971); United States v. Eskew, 469 F. 2d 278 (9th Cir. 1972).

Section 3503.

Section 3504.

or different conditions of release. This authorization is based on the possibility that a changed situation or new information may dictate altered release conditions. It is contemplated by the Committee that the imposition of additional or different conditions may occur at an ex parte hearing in situations where the court must act quickly in the interest of justice. In such cases, a subsequent hearing in the defendant's presence should be held quickly, especially if he cannot meet the new conditions and is incarcerated. If the imposition of additional or different conditions results in the detention of the person, the person also has the right to seek reconsideration under subsection (d).

Subsection (f) provides that the judge may consider any information in connection with his decision to grant release regardless of whether such information is admissible in criminal trials. This, like most of section 3502, is drawn from current law."

SECTION 3503. RELEASE PENDING TRIAL IN A CAPITAL CASE

This section carries forward that part of 18 U.S.C. 3148 which concerns release of persons charged with offenses punishable by death. As with the current statute, this section provides that a person charged with a capital offense is to be treated in accordance with the provisions of section 3502 unless the judge has reason to believe that no conditions of release will reasonably assure that the person will not flee or will not pose a danger to any other person or to the community. A person poses a danger to the community only if he so jeopardizes the public that the only way to protect the public or any person is to keep him in jail. The burden is on the government to demonstrate that the person represents a danger to other persons or to the community or that he is likely to flee.10 If, after hearing the evidence, the judge believes that there is a risk of flight or a danger to the community, he may order the person detained. This order is not appealable under section 3506, but may be reviewed under other provisions for review of conditions of release or orders of detention. Again this appellate procedure is in accord with current law.11

SECTION 3504. RELEASE PENDING SENTENCE OR APPEAL

This section carries forward that part of 18 U.S.C. 3148 which concerned post-conviction release. The Committee believes that release in a pre-trial capital case and release pending appeal are distinct situations which should be treated in separate sections in the release subchapter. While there is no constitutional right to bail once a person has been convicted,12 section 3504 statutorily permits release of a person while he is awaiting sentence or while he is appealing or filing a petition for a writ of certiorari. If the judge, however, has reason to believe that no conditions of release will reasonably assure that the person will not flee or will not pose a danger to any other person or to the community, the judge is required to order that the person be detained.

718 U.S.C. 3146(f).

8 See Stinnett v. United States, 387 F.2d 238 (D.C. Cir. 1967); Drew v. United States, 384 F.2d 314 (D.C. Cir. 1967).

Sellers v. United States, 89 S.Ct. 36 (1968).

10 Leary v. United States, 431 F.2d 85 (5th Cir. 1970).

11 18 U.S.C. 3148.

12 United States v. Bynum, 344 F. Supp. 647 (S.D.N.Y. 1972).

Section 3505.

Section 3506.

The burden of proving that the defendant will not flee or pose a danger to any other person or to the community rests on the defendant.13 If an appeal is frivolous or taken for delay the judge must also deny release.14 A person who is appealing his sentence under sections 3725 (Review of a Sentence other than a sentence of Death) and 3726 (Review of a Sentence of Death) is also eligible for release under this provision, although in the latter case the Committee contemplates that a person under sentence of death will be released only in the most extraordinary of circumstances.

An order denying release is not appealable under section 3506 but it may be reviewed under other provisions for review of conditions of release from detention.

Subsection (b) is a new provision which provides that if the government takes an appeal under the provisions of section 3724 (a) or (b), dealing with government appeals from orders of dismissal or orders suppressing evidence, the defendant is to be treated in accordance with the provisions of section 3502. In such cases, the defendant, of course, would not have been convicted, and he thus should be treated in the same manner as a person who has not yet stood trial, as opposed to a person who has been tried and convicted.

SECTION 3505. RELEASE OF A MATERIAL WITNESS

This section carries forward, almost verbatim, 18 U.S.C. 3149 which concerns the release of a material witness. If a person's testimony is material in any criminal proceeding,15 and if it is shown that it may become impracticable to secure his presence by subpoena, the government is authorized to take such person into custody 16 and a judge is to impose those conditions of release set forth in section 3502 that he finds to be reasonably necessary to assure the presence of the witness as required. If a material witness cannot comply with the release conditions, but will give a deposition that will adequately preserve his testimony, the judge is required to order the witness' release after the taking of the deposition if this will not result in a failure of justice.

SECTION 3506. APPEAL FROM DENIAL OF RELEASE

Except for minor word changes and some restructuring, this section duplicates the provisions of 18 U.S.C. 3147. A person who has been ordered detained or who is required to return to custody after specified hours may appeal his release conditions. If the release conditions were imposed by a judge other than a judge of the court having original jurisdiction over the offense with which he is charged, or a judge of a United States Court of Appeals or a justice of the Supreme Court, he may file his appeal with the court having original jurisdiction over the offense with which he is charged. If the court denies his motion for changed release conditions, or if the conditions of release have been imposed or amended by a judge of the court having original jurisdiction over the offense charged, the person may take an appeal to the court having appellate jurisdiction over such court.

13 Fed. R. Crim. P. 46 (c).

14 See United States v. Stanley, 469 F.2d 576, 580 (D.C. Cir. 1972).

15 A grand jury investigation is a "criminal proceeding" within the meaning of this section. Bacon v. United States, 449 F.2d 933 (9th Cir. 1971).

18 Ibid.

Section 3507.

Section 3508.

Section 3509.

While an order of a court below is to be affirmed if it is supported by the proceedings below, conditions that resulted in a denial of release must be based upon the considerations set forth in section 3502 and there must be some evidence in the record that the judge based his decision on such considerations.17 If there is no evidence in the proceedings below as to the considerations upon which the decision to set conditions that resulted in a denial of release was made, the appellate court can remand the case for a further hearing or may, with or without additional evidence, order the person released pursuant to section 3502.

SECTION 3507. RELEASE IN CASES REMOVED FROM A STATE COURT

This section, for the most part, continues the provisions of 18 U.S.C. 3144. There is, however, one change. Instead of stating that a defendant is not to "be released from custody until a final judgment upon such review or if the offense be bailable, until a bond, with sufficient sureties, in a reasonable sum, is given," this section merely provides that a defendant may not be released pending review of his case by the Supreme Court except pursuant to the laws of the State. Thus, in those cases where a defendant is appealing to the Supreme Court for a review of a State conviction, whether or not he is released pending such review depends on the applicable State law. This is appropriate since the defendant's conviction would have been upheld in the State courts and it would not be proper to apply Federal standards of release to State prisoners.

SECTION 3508. SURRENDER OF AN OFFENDER BY A SURETY

Except for minor word changes this provision is identical to 18 U.S.C. 3142. The section provides that in cases where a person is released on an appearance bond with a surety, such person may be arrested by his surety and delivered to a United States marshal and brought before the court. The surety can arrest the defendant at any time and request the judge to discharge him as surety.18 The person so returned will be retained in custody until released pursuant to this subchapter or under other provisions of law.

SECTION 3509. SECURITY FOR PEACE AND GOOD BEHAVIOR

This section retains existing law as embodied in 18 U.S.C. 3043. It authorizes judges of United States District Courts to require a person to give security for peace and good behavior in those cases arising under the Constitution and laws of the United States to the same extent that a judge of the State in which the case arises would be authorized by State law if the case were a State case. As under section 3507, the judge must look to State law to determine where the requirement of a peace bond is authorized.

17 See Government of Virgin Islands v. Bolones, 427 F.2d 1135 (3d Cir. 1970); cf. United States v. Briggs, 472 F.2d 1229 (5th Cir. 1973).

18 Field v. United States, 193 F.2d 86 (2d Cir. 1951); United States v. D'Argento, 227 F. Supp. 596 (N.D. Ill.), rev'd on other grounds, 339 F. 2d 925 (7th Cir. 1964).