18 U.S.C. § 3142 : US Code - Section 3142: Release or detention of a defendant pending trial

Search 18 U.S.C. § 3142 : US Code - Section 3142: Release or detention of a defendant pending trial

      (a) In General. - 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;
        (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.

      (b) Release on Personal Recognizance or Unsecured Appearance
    Bond. - 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.
      (c) Release on Conditions. - (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); 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, 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, as defined in
        section 102 of the Controlled Substances Act (21 U.S.C. 802),
        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 section 1201,
      1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1),
      2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3),
      2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title, or a
      failure to register offense under section 2250 of this title, 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).

      (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.
      (d) Temporary Detention To Permit Revocation of Conditional
    Release, Deportation, or Exclusion. - If the judicial officer
    determines that - 
        (1) such person - 
          (A) is, and was at the time the offense was committed, on - 
            (i) release pending trial for a felony under Federal,
          State, or local law;
            (ii) release pending imposition or execution of sentence,
          appeal of sentence or conviction, or completion of sentence,
          for any offense under Federal, State, or local law; or
            (iii) probation or parole for any offense under Federal,
          State, or local law; or

          (B) is not a citizen of the United States or lawfully
        admitted for permanent residence, as defined in section
        101(a)(20) of the Immigration and Nationality Act (8 U.S.C.
        1101(a)(20)); and

        (2) such person may flee or pose a danger to any other person
      or the community;

    such judicial officer shall order the detention of such person, for
    a period of not more than ten days, excluding Saturdays, Sundays,
    and holidays, and direct the attorney for the Government to notify
    the appropriate court, probation or parole official, or State or
    local law enforcement official, or the appropriate official of the
    Immigration and Naturalization Service. If the official fails or
    declines to take such person into custody during that period, such
    person shall be treated in accordance with the other provisions of
    this section, notwithstanding the applicability of other provisions
    of law governing release pending trial or deportation or exclusion
    proceedings. If temporary detention is sought under paragraph
    (1)(B) of this subsection, such person has the burden of proving to
    the court such person's United States citizenship or lawful
    admission for permanent residence.
      (e) Detention. - (1) If, after a hearing pursuant to the
    provisions of subsection (f) of this section, the judicial officer
    finds 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, such judicial officer
    shall order the detention of the person before trial.
      (2) In a case described in subsection (f)(1) of this section, a
    rebuttable presumption arises that no condition or combination of
    conditions will reasonably assure the safety of any other person
    and the community if such judicial officer finds that - 
        (A) the person has been convicted of a Federal offense that is
      described in subsection (f)(1) of this section, or of a State or
      local offense that would have been an offense described in
      subsection (f)(1) of this section if a circumstance giving rise
      to Federal jurisdiction had existed;
        (B) the offense described in subparagraph (A) was committed
      while the person was on release pending trial for a Federal,
      State, or local offense; and
        (C) a period of not more than five years has elapsed since the
      date of conviction, or the release of the person from
      imprisonment, for the offense described in subparagraph (A),
      whichever is later.

      (3) Subject to rebuttal by the person, it shall be presumed that
    no condition or combination of conditions will reasonably assure
    the appearance of the person as required and the safety of the
    community if the judicial officer finds that there is probable
    cause to believe that the person committed - 
        (A) an offense for which a maximum term of imprisonment of ten
      years or more is prescribed in the Controlled Substances Act (21
      U.S.C. 801 et seq.), the Controlled Substances Import and Export
      Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46;
        (B) an offense under section 924(c), 956(a), or 2332b of this
      title;
        (C) an offense listed in section 2332b(g)(5)(B) of title 18,
      United States Code, for which a maximum term of imprisonment of
      10 years or more is prescribed;
        (D) an offense under chapter 77 of this title for which a
      maximum term of imprisonment of 20 years or more is prescribed;
      or
        (E) an offense involving a minor victim under section 1201,
      1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1),
      2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3),
      2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title.

      (f) Detention Hearing. - The judicial officer shall hold a
    hearing to determine whether any condition or combination of
    conditions set forth in subsection (c) of this section will
    reasonably assure the appearance of such person as required and the
    safety of any other person and the community - 
        (1) upon motion of the attorney for the Government, in a case
      that involves - 
          (A) a crime of violence, a violation of section 1591, or an
        offense listed in section 2332b(g)(5)(B) for which a maximum
        term of imprisonment of 10 years or more is prescribed;
          (B) an offense for which the maximum sentence is life
        imprisonment or death;
          (C) an offense for which a maximum term of imprisonment of
        ten years or more is prescribed in the Controlled Substances
        Act (21 U.S.C. 801 et seq.), the Controlled Substances Import
        and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title
        46;
          (D) 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; or
          (E) 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; or

        (2) upon motion of the attorney for the Government or upon the
      judicial officer's own motion in a case, that involves - 
          (A) a serious risk that such person will flee; or
          (B) a serious risk that such person will obstruct or attempt
        to obstruct justice, or threaten, injure, or intimidate, or
        attempt to threaten, injure, or intimidate, a prospective
        witness or juror.

    The hearing shall be held immediately upon the person's first
    appearance before the judicial officer unless that person, or the
    attorney for the Government, seeks a continuance. Except for good
    cause, a continuance on motion of such person may not exceed five
    days (not including any intermediate Saturday, Sunday, or legal
    holiday), and a continuance on motion of the attorney for the
    Government may not exceed three days (not including any
    intermediate Saturday, Sunday, or legal holiday). During a
    continuance, such person shall be detained, and the judicial
    officer, on motion of the attorney for the Government or sua
    sponte, may order that, while in custody, a person who appears to
    be a narcotics addict receive a medical examination to determine
    whether such person is an addict. At the hearing, such person has
    the right to be represented by counsel, and, if financially unable
    to obtain adequate representation, to have counsel appointed. The
    person shall be afforded an opportunity to testify, to present
    witnesses, to cross-examine witnesses who appear at the hearing,
    and to present information by proffer or otherwise. The rules
    concerning admissibility of evidence in criminal trials do not
    apply to the presentation and consideration of information at the
    hearing. The facts the judicial officer uses to support a finding
    pursuant to subsection (e) that no condition or combination of
    conditions will reasonably assure the safety of any other person
    and the community shall be supported by clear and convincing
    evidence. The person may be detained pending completion of the
    hearing. The hearing may be reopened, before or after a
    determination by the judicial officer, at any time before trial if
    the judicial officer finds that information exists that was not
    known to the movant at the time of the hearing and that has a
    material bearing on the issue whether there are conditions of
    release that will reasonably assure the appearance of such person
    as required and the safety of any other person and the community.
      (g) Factors To Be Considered. - The judicial officer shall, in
    determining whether there are conditions of release that will
    reasonably assure the appearance of the person as required and the
    safety of any other person and the community, take into account the
    available information concerning - 
        (1) the nature and circumstances of the offense charged,
      including whether the offense is a crime of violence, a violation
      of section 1591, a Federal crime of terrorism, or involves a
      minor victim or a controlled substance, firearm, explosive, or
      destructive device;
        (2) the weight of the evidence against the person;
        (3) the history and characteristics of the person, including - 
          (A) the person's character, physical and mental condition,
        family ties, employment, financial resources, length of
        residence in the community, community ties, past conduct,
        history relating to drug or alcohol abuse, criminal history,
        and record concerning appearance at court proceedings; and
          (B) whether, at the time of the current offense or arrest,
        the person was on probation, on parole, or on other release
        pending trial, sentencing, appeal, or completion of sentence
        for an offense under Federal, State, or local law; and

        (4) the nature and seriousness of the danger to any person or
      the community that would be posed by the person's release. In
      considering the conditions of release described in subsection
      (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial
      officer may upon his own motion, or shall upon the motion of the
      Government, conduct an inquiry into the source of the property to
      be designated for potential forfeiture or offered as collateral
      to secure a bond, and shall decline to accept the designation, or
      the use as collateral, of property that, because of its source,
      will not reasonably assure the appearance of the person as
      required.

      (h) Contents of Release Order. - In a release order issued under
    subsection (b) or (c) of this section, the judicial officer shall -
    
        (1) include a written statement that sets forth all the
      conditions to which the release is subject, in a manner
      sufficiently clear and specific to serve as a guide for the
      person's conduct; and
        (2) advise the person of - 
          (A) the penalties for violating a condition of release,
        including the penalties for committing an offense while on
        pretrial release;
          (B) the consequences of violating a condition of release,
        including the immediate issuance of a warrant for the person's
        arrest; and
          (C) sections 1503 of this title (relating to intimidation of
        witnesses, jurors, and officers of the court), 1510 (relating
        to obstruction of criminal investigations), 1512 (tampering
        with a witness, victim, or an informant), and 1513 (retaliating
        against a witness, victim, or an informant).

      (i) Contents of Detention Order. - In a detention order issued
    under subsection (e) of this section, the judicial officer shall - 
        (1) include written findings of fact and a written statement of
      the reasons for the detention;
        (2) direct that the person be committed to the custody of the
      Attorney General for confinement in a corrections facility
      separate, to the extent practicable, from persons awaiting or
      serving sentences or being held in custody pending appeal;
        (3) direct that the person be afforded reasonable opportunity
      for private consultation with counsel; and
        (4) direct that, on order of a court of the United States or on
      request of an attorney for the Government, the person in charge
      of the corrections facility in which the person is confined
      deliver the person to a United States marshal for the purpose of
      an appearance in connection with a court proceeding.

    The judicial officer may, by subsequent order, permit the temporary
    release of the person, in the custody of a United States marshal or
    another appropriate person, to the extent that the judicial officer
    determines such release to be necessary for preparation of the
    person's defense or for another compelling reason.
      (j) Presumption of Innocence. - Nothing in this section shall be
    construed as modifying or limiting the presumption of innocence.