Pretrial Release/ The Bail Reform Act

We as a community have reached out to those who have experienced the other side of our justice

system. The Ones that are often prohibited from voting, holding office, or otherwise being heard. They

are prisoners who are trying to repay their debt to society and to give back. These individuals, these

sometimes forgotten citizens, have spent their time researching and studying to provide the most vital

information they could all the while studying their own personal academics. They do so, so that they

can help the people as whole and is considered part of the FRS community. We all understand that

there is a difference between what should be and what is. Together we hope that we can make change

happen, but first we must know the truth.

Below we have gathered information and statistics to help you understand the legal process of the

justice system. This information is for informational purposes only and does not constitute legal advice.

We are not attorneys and you should consult a licensed attorney for any legal advice. This information

is intended to assist you and the lawyers by providing a great deal of information for free. This

information will help you understand your rights and help alleviate some of the pressures from your

counsel. Many of the most common questions can be found here so you can narrow your questions to

the attorney. Although there are many books and websites with this information, sometimes finding it

and navigating it is difficult and costly. We do not believe that you should have to pay to know your

rights. Please provide your feedback so we can continue to make this site grow in a manner most

efficient for everyone.

INTRODUCTION

We understand that lawyers are very busy with the extreme caseloads that they have due to our over

burden justice system. Although some don't care about your rights, but only the money, many actually

do care, but are over loaded with cases. They do not have the time to explain the information to the

accused who needs the information the most, to explain it to their family and loved ones, and still give

the case the attention it needs.

Of the people accused of a crime, approximately 80% are indigent and unable to hire a lawyer. [MARC

MAUER AND RYAN S. KING, SCHOOLS AND PRISONS" FIFTY YEARS AFTER BROWN V BOARD OF

EDUCATION (WASHINGTON, DC: SENTENCING PROJECT, 2004), 4]. In 2004, The American Bar

Association released a report on the status of indigent defense, finding that, "All too often, defendants

plead guilty, even if they are innocent, without really understanding their legal rights or what is

occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or

does not adequately understand English. The fundamental right to a lawyer that Americans assume

applies to everyone accused of criminal conduct effectively does not exist in practice for countless

people across the United States." [American Bar Association, Standing Committee on Legal Aid and

Indigent Defendants, Gideon's Broken Promise: America's Continuing Quest for Equal Justice

Pretrial Release_The Bail Reform Act 2

(Washington, DC: American Bar Association, DC 2004) Executive Summary IV; adopted by the American

Bar Association House of Delegates, Aug. 9, 2005,

www.abanet.org/leadership/2005/annual/dailyjournal/107.doc].

Although this neglect is not always intentional or even desired, it happens, and it is unfair to those

without knowledge, money, or political connections. So we bring it to you in one spot, which we believe

you will find useful and easy to navigate.

PRETRIAL RELEASE: THE BAIL REFORM ACT (Pt. 2)

Now that the accused has been arrested or brought to court on a summons, the question is all about

bail. Will the accused be released or detained? The Bail Reform Act of 1984, significantly restricts the

right of certain individuals accused of federal crimes to bail. It does not exclusively apply to crimes,

however. It has also been applied to civil matters such as securing witness statements. Under American

Law a person is innocent until proven guilty. It would be great if this was actually true. The Bail Reform

Act of 1984, found (codified) at 18 U.S.C. 3142, is another example of this illusion. Congress gave the

executive and judiciary branches unprecedented power to restrict an individual’s liberty (freedom)

without having to prove their guilt beyond a reasonable doubt. In fact, a 2012 report shows that about

36% of defendant's in federal court were released pretrial. [THOMAS H. COHEN, U.S. DEP'T OF JUSTICE,

PRETRIAL RELEASE AND MISCONDUCT IN FEDERAL DISTRICT COURTS, 2008-2010 1 (2012)] Of those

released, approximately 19% committed some form of pretrial misconduct, and technical violations.

Ibid. Another words, statistically only a small percentage of people are actually considered innocent

until proven guilty at this stage.

A person's choices are often coerced even though the law does not see it this way. This is all part of

the innate bias that exists. There is a separate part dedicated to Bias. Although these individuals are

considered as detainees and not prisoners, even a very short stay in jail can have dire consequences.

They can lose their job, their home, vehicles, destroy their credit, lose government benefits, lose

custody of their children, and there are several cases where detainees have been assaulted and even

killed.

Once in custody individuals are more likely to plead guilty. Their reasons differ, but two of the most

common is they were offered a deal to give them immediate release, or to avoid a much longer

sentence due to the prosecutors coercive charging authority. This is discussed more in depth below.

See "Plea Bargaining"

The judge has four option during this stage: 1) Grant release on the accused's personal recognizance;

2) Grant Release with conditions; 3) Temporarily detain the accused; or 4) Detain the accused. The Act

requires the court to impose the least restrictive set of conditions reasonably necessary to secure the

defendant's appearance or the safety of the community. Another words, the court must release a

defendant without conditions unless it finds based on evidence that conditions are needed. Section

3142(g) shows what the judicial officer must take into account when making this decision.

Pretrial Release_The Bail Reform Act 3

HISTORY OF BAIL REFORM OF 1984

The rights to bail in non-capital Federal cases was first codified in 1789 [Judiciary Act of 1789, 1 Stat

73, 91 (1789)]. In various forms, that right continued up until the passage of the Bail reform Act of 1984.

There was one major exception, which was the District of Columbia, which had a preventative detention

statute since 1970 [Pub. L. No. 91-358, 84 Stat. 473, 642-49 (1970) (codified at D.C. Code Ann. 23-1321

to 1332 (1981 and Supp. 1983))], but it did not apply to Federal defendants. [See generally Ervin,

Foreword: Preventive Detention - A Step Backward for criminal Justice, 6 Harv. C.R. - C.L L. Rev. 291

(1971).

The purpose of bail has traditionally been known to ensure that the accused, if release from custody,

would return for future court proceedings. [United States v Nguyen, 279 F.3d 1112 (9th Cir. 2002) ("The

purpose of bail bonds is to make sure defendants show up for court, not to punish them or their families

if they don't.")]. However, let’s go back further through history. As Douglas Blackmon noted in his book

"Slavery By Another Name" he described how tens of thousands of African Americans were arrested

unjustly and arbitrarily during the post-civil war era. During this period of time many were hit with court

costs and fines, which had to be worked off in order to secure their release. [See Douglas Blackmon,

Slavery By Another Name: The Re-Enslavement of Black People in America From Civil War to World War

II (New York: Doubleday, 2008)].

It was, in part, as a result of the growing recognition that for certain categories of offenders the

posting of monetary bail constituted little more than a cost of doing business that Congress was

motivated to pass the Bail Reform Act of 1984. [S. Rep. No 225, 98th Cong., 1st Sess. 23-24, reprinted in

1984 U.S. Code Cong. & Admin. News 3182, 3206-3207; United States v Nguyen, 279 F.3d 1112 (9th Cir.

2002)(bond must be reasonable when set; need not necessarily approximate actual costs of breach);

United States v Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991)(Court must provide reasoning for fearing

defendant's risk of flight where bail amount exceeds defendant's means to pay.)].

Through the passage of time and as this practice developed, the seriousness of the offense gained

recognition as a factor of prime importance. [Carbone, Seeing Through The Emperor's New Clothes:

Rediscovering of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517, 540 (1983). The

understanding became the more serious the offense, the greater the potential penalty. Therefore, the

more likely it was the accused would find it in their interest to flee of lesser importance was the issues

of the weight of the evidence, the character of the accused, and the accused's financial condition. [34

Syracuse L. Rev. at 543-548]. Judge weighed the offense information against the personal

characteristics of the accused's flight risk. Then they would try to balance the flight risk with the

imposition of bail conditions which was designed to encourage the accused's appearance.

One should always remember that President John Adams, who was not a Plantation owner, and did

not agree with owning slaves (and was not reelected) was quoted as saying "The history of our

revolution will be one continued lie from one end to the other." There are similar quotes such as

"Deceiving Americans is one of the few growing home industries we still have in this country." [Charles

Pretrial Release_The Bail Reform Act 4

Simic]; "This whole country is full of lies. You're all gonna dies and die like flies." [Nina Simone]. And a

letter from Benjamin Franklin to his sister "If you make yourself a sheep, the wolves will eat you."

Personal Recognizance

The statute, 18 U.S.C. 3142(b) mandates pretrial release on personal recognizance or an unsecured

appearance bond unless the court determines that such release will not reasonably assure the person's

appearance or will endanger the safety of any other person or the community. As explained above

release on bond is not common today. Prior to its enactment release was granted in approximately 67%

of all cases. [ ]. However, of the 36% of those released on bail today, 32% were released on personal

recognizance, and 39% on an unsecured bond. [Thomas H. Cohen, U.S. Dep't of Justice, Pretrial Release

and Misconduct in Federal District Courts, 2008-2010, 5 (2012).

This means, for an example, in 2016 there were approximately 67,000 people sentenced to federal

prison. This number does not account for all arrests, or even all sentences, just those sentenced to

federal prison. Of those statistically 36% were granted release on personal recognizance (approximately

7,718 individuals), and 39% were released on an unsecured bond (approximately 9,407 individuals).

Release on Conditions

If the judicial officer determines that neither a personal recognizance nor an unsecured bond will not

reasonably assure appearance or will endanger any other person or the community, 18 U.S.C. 3142(c)

still mandates release but with certain conditions. The statute does provide a list of many conditions of

release that the court may impose, including a catch all clause encompassing any other condition that

is reasonably necessary to assure the appearance of the person as required and the safety of any other

person and the community. [18 U.S.C. 3142(c)(1)(B)(xiv).

Rights at Detention

Under 18 U.S.C. 3142(f)(2)(B) Congress provides certain rights to these detention hearings. These

rights include the right 1) to be represented by counsel (retained or appointed); 2) to testify; 3) to

present witnesses on their behalf; 4) to cross-examine witnesses who appear at the hearing; and 5) to

present information by proffer or otherwise.

The United States Supreme Court viewed these safeguards (the hearing itself) as a "full-blown

adversarial hearing" during which the government must convince a "neutral decision maker." [United

States v. Salerno, 481 U.S. 739, 742 (1987). This hearing can be the first hearing to force the

government to tip their hand, and to gain discovery. Certainly, the reverse is also true and if not careful

a defendant can seal their own fate and secure a harsh sentence later by making the government’s case.

Everything from the moment of arrest forward can and often is used against you. It is important to have

a trained and qualified lawyer at any part of a criminal proceedings, including this part. The right to

decide to move for bail or not to is solely the accused's decision and no one can make that decision for

them. Not the lawyer, not the prosecutor, not the judge, nor any third party who may be paying the

attorney.

Pretrial Release_The Bail Reform Act 5

At this detention hearing it is possible to have the witness subpoenaed. This is arguably so, because

of the first two factors to be considered: 1) The nature and circumstances of the offense charged and 2)

the weight of the evidence against the person. One possible strategy is to try to subpoena government

witnesses as their own witness to show the court the demeanor and credibility of the persons making

the allegations against the accused. However, courts have held that 18 U.S.C. 3142(f) does not provide

the accused with the absolute right to subpoena witnesses.

A person could argue that it is a violation of due process to require the defendant to carry the burden

of rebutting certain presumptions without the ability to subpoena witnesses and documents. The

majority of courts agree that where the statutory presumptions apply, the accused has the burden of

producing some evidence to overcome the presumption but that the burden of persuasion does not

shift to the accused. [United States v Jessup, 757 F.2d 378 (1st Cir. 1985); United States v Martir, 782

F.2d 1141 (2d Cir. 1986); United States v. Rueben, 974 F.2d 580 (5th Cir. 1992); United States v.

Dominquez, 783 F.2d 702 (7th Cir. 1986); United States v Orta, 760 F.2d 887 (8th Cir. 1985)(en banc);

United States v cook, 880 F.2d 1158 (10th Cir. 1989)].

Here one should recognize the double standard with interpretation and use of "some evidence" This

standard which is also used in prison disciplinary proceedings is an extremely low bar. [See

Superintendent v Hill, ]. However, when the same standard is used for an individual who is

constitutionally presumed innocent the bar is quite high. For example, in United States v. Trosper, 809

F.2d 1107, 1110-11 (5th Cir. 1987) the defendant's evidence of family ties did not demonstrate that

family had some control over his actions and therefore was not evidence that the defendant's

appearance could be reasonably assured; likewise, defendants financial condition pointed more towards

reason to flee.

Drug offenses make up the second largest group of arrests, after immigration offenses. Despite the

constitution says a person is presumed innocent, by being charged with a drug crime courts will consider

the source of the defendant's money. For example, in United States v Rueben, 974 F.2d 580, 586-57

(5th Cir. 1992), the court held that family ties, home ownership; and employment did not rebut the

presumption because these factors were connected to drug distribution. Another words, although he

was presumed innocent, because he was charged with a drug offense, he must also convince the court

that his money was not illegally obtained. This essentially increases the "burden of proof" for the

accused, although it is not supposed to.

It appears more so that the presumption of innocence does not actually exist under the constitution.

Under 3142(g)(3), the history and characteristics of the person, includes 13 factors. Family ties (factor

C); employment (factor D); and Financial resources (factor E) often are not used in favor of the

defendant, because each factor requires additional "some evidence." The mere fact that only 36% of the

accused is granted release shows how much the presumption of innocence is actually a myth for

majority of citizens.

If the accused does somehow manage to rebut the presumption with production of some evidence

that's considered sufficient, the burden of proof remains on the government to prove risk of flight and

Pretrial Release_The Bail Reform Act 6

danger to the community. [See united States v Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990); United

States v Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991)(must produce some evidence; presumption retains

evidentiary weight; burden of persuasion remains on government); United States v Rodriguez, 950 F.2d

85, 88 (2d Cir. 1991)(defendant must produce some evidence; presumption retains evidentiary weight);

United States v Bosquez-Villarreal, 868 F.2d 1388, 1389 (5th Cir. 1989)(government retains ultimate

burden of persuasion); United States v Diaz, 777 F.2d 1236; 1238 (7th Cir. 1985)(defendant must

produce some evidence; presumption continues to weight in balance); United States v Cook, 880 f.2d

1158, 1162 (10th Cir. 1989)(burden of production, not persuasion, shifted; burden not heavy, requires

only some evidence, presumption remains a consideration); United States v. Hurtado, 779 F.2d 1467,

1470 n.4 (11th Cir. 1985)(defendant must produce some evidence; ultimate burden of persuasion

remains on government).

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