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.
(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. - 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. 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 -
(1) 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;
(2) the offense described in paragraph (1) of this subsection
was committed while the person was on release pending trial for a
Federal, State, or local offense; and
(3) 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 paragraph (1) of this
subsection, whichever is later.
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 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 the Maritime Drug Law Enforcement Act (46 U.S.C. App.
1901 et seq.), an offense under section 924(c), 956(a), or 2332b of
this title, or 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 or 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, 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 the Maritime Drug
Law Enforcement Act (46 U.S.C. App. 1901 et seq.); or
(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
(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, or an
offense listed in section 2332b(g)(5)(B) for which a maximum term
of imprisonment of 10 years or more is prescribed or involves a
narcotic drug;
(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.