2. Current Release Provisions

The principal provisions of The Bail Reform Act of 1984 are found in Section 3142 of Title 18 of The United States Code.  As indicated therein, there are two release provisions under post Act law. First, a magistrate may and should order the release of a defendant on an O.R. bond if the facts of the case indicate that the defendant is not likely to flee the Court’s jurisdiction upon release and will not pose a physical danger to the community upon his release:

“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.”

Secondly, and as specified in 3142(c), the magistrate may order that a secured appearance or surety bond be posted if either are necessary to assure the defendant’s appearance and the safety of the community. As was the case under The Bail Reform Act of 1966, the new Act also permits the magistrate to consider special conditions of release in either instance such as travel restrictions, pre-trial supervision, reporting requirements and the like. Whatever conditions, if any, are imposed, the litmus test of the new Act is that they be designed to assure the defendant’s appearance and the safety of other persons upon his release

Whether a defendant is released with conditions pursuant to 3142(c) or without, pursuant to 3142(b), the new Act requires that the Court impose certain mandatory conditions of release. In all cases where release is granted, a magistrate must impose a condition of release that the defendant will not violate any local, state, or federal law while on release. Moreover, a magistrate must in any order of release specify for and advise the defendant of criminal penalties provided for by the Act which will be triggered by a violation of law while on pre-trial release. Thus, and pursuant to Section 3142(h), a magistrate must advise the defendant in a release order of the penalties if the person is convicted of an offense while on pre-trial release.

Additionally, if released, a defendant will be advised of the criminal penalties which would apply if he failed to appear in Court as scheduled (18 U.S.C. §3146) and will be specifically admonished against and advised of the penalties provided for witness or jury tampering and obstruction of justice (18 U.S.C. §1503, 1510, 1512, 1513). Finally, the released defendant will be advised of the sanctions and penalties which could attach should he violate any condition of release (e.g. a travel or reporting requirement), which could include his immediate arrest, revocation of bond and prosecution for contempt of Court. These punitive provisions are contained in Section 3148.

As is apparent, the main difference in the release provisions today as opposed to those previously in force is the permissible consideration by the magistrate of the defendant’s possible danger to the community when setting special conditions of bond. Even where a magistrate concludes that release is proper under the facts of the case before him, as a condition of release the magistrate may require that the defendant refrain from certain activity and submit himself to certain supervisory restraints that not only will be designed to assure his appearance at trial, but also assure that he will not pose a threat to the safety of others.

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