Bail: An Overview of Federal Criminal Law
Released: 2017-07-31T00:00:00

Introduction

In a criminal law context, bail is most often thought of as the posting of security to ensure the presence of an accused at subsequent judicial proceedings—that is, "[t]o obtain the release of (oneself or another) by providing security for future appearance." The term itself is less frequently used now, however, due in part to the practice of release on personal recognizance, which consists of permitting an individual to pledge his word, rather than his property, for his future appearance. Moreover, today, an individual's release pending subsequent criminal proceedings is often predicated on conditions other than, or in addition to, the posting of an appearance bond, secured or unsecured. As a consequence, rather than speaking of bail, existing federal law refers to release or detention pending trial, to release or detention pending sentencing or appeal, and to release or detention of a material witness. This report provides an overview of federal law in each of these areas, as well as in the area of extradition from the United States to another country.

History

American bail law has its origins in England, where it was said that "the right to be bailed ... is as old as the law of England itself." Blackstone wrote that "by the ancient common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every case." In the beginning, however, officials enjoyed considerable discretion over the circumstances under which bail might be granted or denied. The First Statute of Westminister of 1275 limited that discretion when it listed the criminal offenses which were bailable and those which were not.

Yet, if an individual was imprisoned without charge, the question of whether the crime charged was bailable never arose. If an individual was imprisoned without bail and his jailer failed to make a timely return on his writ of habeas corpus, the right to bail would become meaningless. (A writ of habeas corpus instructed the sheriff or other custodian to whom it was addressed to return to the court which issued the writ and to justify the prisoner's detention.) The same was true if an individual was imprisoned and his bail set at an exorbitant amount.

At the dawn of the American colonial period, Parliament had occasion to visit each of these concerns. First in the Petition of Right, it precluded pretrial imprisonment without a criminal charge and confirmed the availability of habeas corpus relief for those who were held without charge. Then in the Habeas Corpus Act of 1679, it imposed a three-day deadline for return on a habeas writ, thus eliminating a custodian's use of delay to frustrate a pretrial prisoner's right to bail. Finally, in the Bill of Rights of 1689, it prohibited excessive bail.

In this country, the right to bail appears to have been widely recognized during the colonial period and in the early years of the Republic. The 1641 Massachusetts Body of Liberties included a right to bail section:

No mans person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unless it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of [the General] Court doth allow it.

The U.S. Bill of Rights and many of the constitutions of the original states featured excessive bail clauses, and less often, right to bail clauses.

The Continental Congress made a right to bail part of the Northwest Ordinance ("... All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great ..."), and the First Congress added a similar clause to the first Judiciary Act ("And upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by justice of the supreme court, or a judge of a district court, who shall exercise this discretion thereto, regarding the nature and circumstances of the offence, and of the evidence, and usage of law ...").

The Revised Statutes of 1878 mirrored the provisions of the Judiciary Act. The Revised Statutes included additional provisions relating to bail for habeas petitioners, and the arrest and subsequent proceedings concerning individuals previously admitted to bail. These continued in place with little substantive revision until the Bail Reform Act of 1966.

In the mid-1960s, the state of federal bail troubled Congress for two reasons. First, Congress believed that, in spite of the presumption of innocence, an accused's prospects of pretrial release turned primarily on his wealth. "Every witness before the subcommittees agreed that, at least in noncapital cases, the principal purpose of bail is to assure that the accused will appear in court for his trial. There is no doubt, however, that each year thousands of citizens accused of crimes are confined before their innocence or guilt has been determined by a court of law, not because there is any substantial doubt that they will appear for trial but merely because they cannot afford money bail. There is little disagreement that this system is indefensible."

It further believed that a poor defendant suffered considerable disadvantages as a consequence. "There was widespread agreement among witnesses that the accused who is unable to post bond, and consequently is held in pretrial detention, is severely handicapped in preparing his defense. He cannot locate witnesses, cannot consult his lawyer in private, and enters the courtroom—not in the company of an attorney—but from a cell block in the company of a marshal. Furthermore, being in detention, he is often unable to retain his job and support his family, and is made to suffer the public stigma of incarceration even though he may later be found not guilty."

Second, it feared that the existing bail system permit had no real means of holding those charged with a crime whose release would pose a danger to the community or someone in the community. Congress addressed the first concern in the Bail Reform Act of 1966, but was unable to reach consensus on the second, preventive detention, until several years later. "This legislation does not deal with the problem of the prevention detention of the accused because of the possibility that his liberty might endanger the public, either because of the possibility of the commission of further acts of violence by the accused during the pretrial period, or because of the fact that he is at large might result in the intimidation of witnesses or the destruction of evidence.... Obviously, the problem of preventive detention is closely related to the problem of bail reform. A solution goes beyond the scope of the present proposal and involves many difficult and complex problems which require deep study and analysis. The present problem of reform of existing bail procedures demands an immediate solution. It should not be delayed by consideration of the question of preventive detention."

The 1966 Bail Reform Act amended federal law to require the pretrial release of an individual charged with a noncapital federal offense upon personal recognizance or an unsecured appearance bond, unless the court determined they were likely to be insufficient to assure the appearance of the accused at trial. The court was to assess the risk of flight by considering

the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

Should the court conclude that an accused would otherwise pose a risk of flight, it was to impose the least restrictive of a series of conditions that included first, third-party custody; then, travel and associational limitations; then, cash or secured bail; and, finally, nighttime incarceration. The accused was given an explicit right to appeal the imposition of any such conditions.

Release was also required in capital cases and following conviction, unless the court concluded that no condition or series of conditions could overcome the risk of flight or danger to the community posed by the defendant.

For several years thereafter, debate continued over the wisdom and constitutionality of pretrial preventive detention in noncapital cases. Some found preventive detention incompatible with the right to bail they considered implicit in either the Eighth Amendment's excessive bail clause or the Fifth Amendment's due process clause or in both. Others felt the right was subject to reasonable legislative regulation.

History seemed to provide support for either view. On one hand, the excessive bail clause in the English Bill of Rights was clearly enacted to prevent judges from frustrating the right to bail by requiring excessive bail. ("Unfortunately, the [Habeas Corpus] Act closed one loophole and opened another. The acknowledgment of discretion in clause III allowed bail to be set at prohibitively high amounts.... The Bill of Rights corrected the practice of setting excessive bail in criminal cases ..."). Moreover, until the mid-20 th century, Congress and the vast majority of state constitutions had consistently recognized a right to bail in noncapital cases save only when the accused posed a risk of flight. On the other hand, both the English and the federal right to bail had always been a matter of statute—that is, a matter subject to reasonable legislative regulation.

Dicta in various Supreme Court cases seemed equally conflicted. In Stack v. Boyle , the Court noted that "this traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.... Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Yet shortly thereafter it observed in Carlson v. Landon that

the [excessive] bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.

In 1984, Congress amended federal bail law to permit the use of preventive detention in certain limited instances when the accused posed a danger to the public or particular members of the public. Three years later, the Supreme Court in Salerno held that the legislation offended neither the Eighth Amendment's Excessive Bail Clause nor the Fifth Amendment's Due Process Clause:

In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing. We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government—a concern for the safety and indeed the lives of its citizens—on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment.

The Court explained that the regulatory character of the regime immunized it from substantive due process assault:

Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on whether an alternative purpose to which the restriction may rationally be connected is assignable for it and whether it appears excessive in relation to the alternative purpose assigned to it. We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history ... indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal. Nor are the incidents of pretrial detention excessive in relation to the regulatory goal Congress sought to achieve.

Its tailored procedural safeguards shielded it from procedural due process ("Finally, we may dispose briefly of respondents' facial challenge to the procedures of the Bail Reform Act.... We think [its] extensive safeguards sufficient to repel a facial challenge"), and excessive bail challenges ("Nothing in the text of the Bail Clause limits permissible Government considerations solely to questions of flight. The only arguable substantive limitation of the Bail Clause is that the Government's proposed conditions of release or detention not be excessive in light of the perceived evil.... We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail"). Three Justices—Marshall, Brennan, and Stevens—found the majority's arguments unpersuasive.

The basic structure of federal bail law is as the 1984 Bail Reform Act left it, although Congress has made a number of adjustments in the years since, most notably relating to the rebuttable presumption of flight and dangerousness.

Pretrial

Overview

An individual released prior to trial remains free under the same conditions throughout the trial until conviction or acquittal, subject to modification or revocation by the court. For that reason, the term pretrial release is understood to include all preconviction release, both before and during trial. Under existing federal law, an individual arrested under federal authority must be brought before a magistrate without unnecessary delay. Any federal or state judge or magistrate may qualify. The magistrate may order an individual accused of a federal crime either released or detained prior to trial and conviction.

The law affords the judge or magistrate four options, which it places in descending order of preference. First, he may release the accused on personal recognizance or under an unsecured appearance bond, subject only to the condition that the accused commit no subsequent federal, state, or local crime and that he submit a sample for DNA analysis. Second, he may release the accused subject to certain additional conditions. Third, he may order the accused detained for bail revocation, parole revocation, probation revocation, or deportation proceedings. Fourth, he may order the accused detained prior to trial.

If the magistrate does not initially release the accused on personal recognizance or conditions, a hearing on the release of the accused must be held "immediately" upon the individual's first appearance before the judge or magistrate. The accused or the government may request that the hearing be postponed for up to five days—up to only three days when the postponement is granted at the government's behest. The accused is entitled to assistance of counsel at the hearing and to the appointment of counsel if necessary. The accused may testify at the hearing and present and cross-examine witnesses. Evidence may be introduced at the hearing without deference to the rules that apply at a criminal trial.

Personal Recognizance

The decision to release an accused on personal recognizance or unsecured appearance bond rests upon a determination that the accused poses no risk of flight and no risk of danger to the community or any of its inhabitants. The decision requires consideration of four factors:

"The nature and circumstances of the offense …"; "The weight of the evidence against the person"; "The history and characteristics of the person …"; and "The nature and seriousness of the danger to any person or the community that would be posed by the person's release…"

Conditional Release

If the judge or magistrate concludes that personal recognizance or an unsecured appearance bond is insufficient to overcome the risk of flight or to community or individual safety, he may condition the individuals' release on a refrain from criminal activity, collection of a DNA sample, and the least restrictive combination of 14 conditions. Under the appropriate circumstances, the "community" whose safety is the focus of the judge or magistrate's inquiry need not be limited geographically to either the district or even the United States. The 14 statutory conditions are

third-party supervision; seeking or maintaining employment; meeting education requirements; observing residency, travel, or associational restrictions;* avoiding contact with victims or witnesses;* maintaining regular reporting requirements;* obeying a curfew;* adhering to firearms limitations;* avoiding alcohol or controlled-substance abuse; undergoing medical treatment; entering into a personally secured appearance agreement; executing a bail bond; submitting to afterhours incarceration; and complying with any other court-imposed condition.

Section 3142 requires the judge or magistrate to impose electronic monitoring and several of these conditions (noted with an asterisk above) when the accused is ineligible for release on personal recognizance or an unsecured bond and is charged with one of several sex-related offenses against children. Several defendants have successfully challenged this mandatory requirement on Due Process Clause or Excessive Bail Clause grounds.

Notwithstanding the explicit conditions that seem to contemplate requiring an accused to post security for his release or face detention, Section 3142 provides that "the judicial officer may not impose a financial condition that results in the pretrial detention of the person." The courts have resolved the apparent conflict by essentially construing the provision to apply when the financial condition is not calculated to result in pretrial detention but is a collateral consequence of the court's determination of the amount necessary for safety and to prevent flight. As the Ninth Circuit explained:

Several other circuits have addressed the apparent violation of §3142(c)(2) that arises when, as in Fidler's case, a defendant is granted pretrial bail, but is unable to comply with a financial condition, resulting in his detention. It may appear that detention in such circumstances always contravenes the statute. We agree, however, with our sister circuits that have concluded that this is not so. These cases establish that the de facto detention of a defendant under these circumstances does not violate §3142(c)(2) if the record shows that the detention is not based solely on the defendant's inability to meet the financial condition, but rather on the district court's determination that the amount of the bond is necessary to reasonably assure the defendant's attendance at trial or the safety of the community. This is because, under those circumstances, the defendant's detention is not because he cannot raise the money, but because without the money, the risk of flight [or danger to others] is too great.

Rebuttable Presumption

The accused, however, may have to overcome the statutory rebuttable presumption of flight or dangerousness to secure his release on personal recognizance or an unsecured appearance bond. A rebuttable presumption attaches under either of two circumstances. The first occurs when, following a hearing, the judge finds probable cause to believe that the accused has committed one of the serious crimes classified as either

a 10-year drug offense; an offense involving possession of a firearm in furtherance of a crime of violence or serious drug offense; a 10-year federal crime of terrorism; a 20-year human trafficking offense; or a designated sex offense committed against a child.

The second set of circumstances giving rise to a rebuttable presumption occurs when, following a hearing, the judge finds probable cause to believe that the accused previously committed a qualifying offense, much like those just described, while on bail, and for which he was convicted or released from imprisonment within the last five years.

"[T]he presumption reflects Congress' substantive judgment that particular classes of offenders should ordinarily be detained prior to trial." An accused must present some rebuttal evidence, no matter how slight, in order to the escape the presumption. Nevertheless, the prosecution bears the ultimate burden of establishing that no series of conditions is sufficient to negate the risk of the accused's flight or dangerousness—by a preponderance of the evidence in the case of flight and by clear and convincing evidence in the case of dangerousness.

Unless he holds the accused for revocation or deportation proceedings, the judge or magistrate may decline to release the accused on conditions only if he finds that no condition or series of conditions will provide reasonable assurance against flight or dangerousness.

Detain for Revocation or Deportation

The third option available to the judge or magistrate if the accused poses a flight or safety risk is to order him detained for up to 10 days to allow for a transfer of custody for purposes of bail, probation or parole, or deportation revocation proceedings. Otherwise applicable bail provisions come into play if the accused has not been transferred within the 10-day deadline.

Pretrial Detention

Finally, having exhausted the other options—release of personal recognizance, release under conditions, and release for other proceedings—the judge or magistrate may order the accused detained prior to trial. Although pretrial detention is the least statutorily favored alternative in the federal pretrial bail scheme, 72.7% of those accused of federal crimes and presented to a federal judge or magistrate are detained prior to trial.

The judge or magistrate may order pretrial detention upon determining, after a hearing, that no combination of conditions will be sufficient to protect against the risk of flight or threat to safety. The government has the option of petitioning for pretrial detention under two different sets of circumstances. The first consists of instances in which the accused is charged with one or more designated serious federal offenses, that themselves create a rebuttable presumption that no set of conditions will guarantee public safety or prevent the flight of the accused. The second consists of instances in which the defendant poses a serious safety or flight risk, regardless of the crime with which he is charged.

Offense-Driven Detention

The government may seek pretrial detention when the accused is charged with any of nine categories of federal crime:

crimes of violence; sex trafficking involving a child or the use of force, fraud, or coercion; federal crimes of terrorism with a maximum term of imprisonment of 10 years or more; offenses punishable by death or one punishable by life imprisonment; controlled substance offenses with a maximum term of imprisonment of 10 years or more; felonies, if the accused has previously been convicted of two or more of such crimes of violence, crimes of terrorism, capital offenses, controlled substance violations, or their equivalents under state law; nonviolent felonies committed against a child; felonies involving the use of firearms, explosives, or other dangerous weapons; failure to register as a sex offender.

The categories obviously overlap and reinforce each other. For example, many of the federal crimes of terrorism are also crimes punishable by life imprisonment or death. (A list of the federal crimes of terrorism with a maximum penalty of imprisonment of 10 years or more is appended, as is a list of the federal crimes with a maximum penalty of death or of imprisonment for life.)

In some instances the apparent duplication provides clarification. Absent a separate specific category, crimes of violence might not be understood to include felonies involving the use of firearms, explosives or other dangerous weapons, as was often the case prior to creation of the explicit firearm category. By the same token, listing offenses punishable by death or life imprisonment makes it clear that espionage is covered without the necessity of inquiring whether a particular offense in fact involved the risk of violence which would qualify it as a crime of violence.

Section 3156 provides still further clarification. It defines "crimes of violence" for purposes of Section 3142 and several other provisions of the bail chapter to mean not only a crime with a violent element and a crime that involves the risk of violence, but also various federal sex offenses including interstate prostitution and possession or distribution of child pornography—that is, any felony under chapter 109A (sexual abuse), 110 (sexual exploitation of children), or 117 (interstate travel of illicit sexual purposes).

Risk-Driven Detention

The judge or magistrate may also order pretrial detention when the accused is charged with other offenses, but the judge or magistrate finds, after a hearing, that the accused poses a serious risk of flight or obstruction of justice.

Detention and Release Orders

Section 3142 dictates what the judge or magistrate must include within his release or detention order. Release orders, whether issued following a detention hearing or upon conditional release without such a hearing, provide the accused with written notification of the conditions of his release, the consequences of violating a condition of release, and of the prohibitions on obstruction of justice. Detention orders contain written findings and justifications. They also direct custodial authorities to hold the accused apart from other detainees to the extent possible, to permit him to consult with his attorney, and to deliver him up for subsequent judicial proceedings.

After the issuance of an order, the court is free (1) to amend a release or detention order; (2) to reopen the detention hearing to consider newly discovered information or changed circumstances; or (3) to permit an accused under a detention order to assist in the preparation of his defense or to be temporarily released for other compelling reasons. Release orders and detention orders are final orders for appellate purposes, and either the government or the accused may appeal them.

Bail Pending Sentencing

Federal law treats bail following conviction but prior to sentencing in one of three ways depending upon the crime of conviction. First, a defendant may not be detained prior to sentencing for an offense for which the U.S. Sentencing Guidelines do not recommend a sentence of imprisonment. Second, when the defendant has been convicted of a capital offense, a 10-year federal crime of terrorism, a 10-year controlled substance offense, a crime of violence, or a violation of 18 U.S.C. §1591 (commercial sex trafficking), the defendant must be detained unless the court finds that the defendant is not likely to flee or pose a safety concern and either that a motion for acquittal or a new trial is likely to be granted, or that the prosecution has recommended no sentence of imprisonment be imposed, or that exceptional reasons exist for granting bail. Third, in any other case, the defendant must be detained, unless the court concludes that the defendant is unlikely to flee or pose a safety concern if released conditionally or on his own recognizance.

Bail Pending Appeal

When a defendant appeals following conviction, the judge or magistrate may release him on condition or recognizance, if the judicial official is convinced that the defendant poses neither a flight risk nor a safety concern and that his appeal raises substantial questions that offer the prospect of success. "A question is substantial if the defendant can demonstrate that it is 'fairly debatable' or is 'debatable among jurists of reason.'"

An additional requirement applies when the defendant has been sentenced to prison upon conviction for a capital offense, a 10-year federal crime of terrorism, a 10-year controlled substance offense, or a crime of violence. In such cases, bail is available only under exceptional circumstances. The circumstances considered exceptional have variously been described as uncommon, unusual, unique, and rare.

When the government alone appeals, the pretrial bail provisions of Section 3142 apply, unless the government is simply appealing the sentence imposed. When the government appeals the sentence imposed, the defendant must be detained if he has been sentenced to a term of imprisonment; otherwise, Section 3142 applies.

Consequences of Failure to Appear or Otherwise Honor Conditions

A number of consequences flow from an individual's failure to appear or to honor the conditions imposed upon his release. He may be prosecuted for contempt of court; he may be prosecuted separately for failure to appear; his release order may be revoked or amended; security pledged for his compliance may be forfeited; he may be subject to arrest by his surety; and he may prosecuted for any crimes that constituted a violation of his bail conditions.

Criminal Penalties

It is a separate federal crime to fail to appear for required judicial proceedings or for service of sentence. "To establish a violation of 18 U.S.C. §3146, the government ordinarily must prove that the defendant (1) was released pursuant to Title 18, Chapter 207 of the U.S. Code, (2) was required to appear in court, (3) knew he was required to appear, (4) failed to appear as required, and (5) was willful in his failure to appear." An individual enjoys an affirmative defense if he fails to appear through no fault of his own. An individual who fails to appear for his supervised release revocation hearing is liable only if he was released on bail in anticipation of the hearing. The penalty for violation of Section 3146, which ranges from imprisonment for not more than one year to imprisonment for not more than 10 years, is calibrated to reflect the seriousness of the underlying offense. When an individual is convicted for failure to appear for a supervised release revocation hearing, the sentence for violation of Section 3146 is governed by the offense with respect to which supervised release was granted. An individual who violates a condition of his release on bail may also be prosecuted for contempt of court under 18 U.S.C. § 401.

When an individual commits a crime while on bail, federal law provides an additional penalty: "A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense, to (1) a term of imprisonment of not more than 10 years if the offense is a felony; or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor." The lower federal appellate courts have held that the penalty enhancement under Section 3147 may be imposed based on a failure to appear in violation of Section 3146. It may also be imposed when the post-bail offense was a continuation of the offense that occasioned the individual's original release on bail.

Amended or Revoked Release Orders

Faced with failure to comply with a condition of release, the judge or magistrate may amend an individual's release order amending existing conditions or adding new ones. The judge or magistrate may also order revocation of the release order and detention of the individual after a hearing, if he finds either probable cause to believe that the individual has committed a new offense or by clear and convincing evidence that the individual has breached some other condition of his release. The new detention order must be premised on a finding that the individual is unlikely to abide by the conditions imposed for his release or that there is no combination of conditions sufficient to guard against the individual's flight or danger to the public or any member of the public. A finding of probable cause that the individual has committed a new offense triggers a presumption that no combination of conditions will dispel concerns for public safety.

Forfeiture of Security

The judge or magistrate may order any bail bond or other security forfeited, if the individual fails to appear at judicial proceedings as required or fails to appear to begin service of his sentence. The court must do so if he fails to abide by any condition imposed for his release. The prosecution begins the process with a motion to enforce. If the surety returns the individual to the custody of the court, or if not contrary to interests of justice, the court may set aside, mitigate, or remit the forfeiture or may exonerate the surety and release the bail. A surety on an appearance bond is entitled to notice and to be heard on any material amendment to the conditions of release.

Pretrial Service Agency

The U.S. Probation and Pretrial Service Office conducts preliminary investigations and otherwise assists the courts in their administration of federal bail law. Its officers enjoy statutory authority to

provide judges and magistrates with information relevant to initial bail determinations; prepare reports relevant for the review of release and detention orders; supervise bailees released into its custody; operate halfway houses, treatment facilities, and the like for those released on bail; inform the court and prosecutors of release order violations; advise the court on the availability of third-party custodians; help bailees secure employment, medical, legal, and social services; prepare reports on supervision of pretrial detainees; prepare reports on the bail system; prepare pretrial diversion reports for prosecutors; contract for the performance of its responsibilities; supervise and report on prisoners conditionally released following hospitalization for mental disease or defect; carry firearms; provide services for juveniles; and perform other functions assigned to it by the bail laws.

Material Witnesses

Federal law authorizes the arrest and detention or bail of individuals with evidence material to the prosecution of a federal offense. With limited variations, federal bail laws apply to material witnesses arrested under Section 3144. Thus, arrested material witnesses are entitled to the assistance of counsel during bail proceedings and to the appointment of an attorney when they are unable to retain private counsel. Release is generally favored; if not, release with conditions or limitations is preferred, and finally as a last option detention is permitted. An accused is released on his word (personal recognizance) or bond unless the court finds such assurances insufficient to guarantee his subsequent appearance or to ensure public or individual safety. A material witness, however, need only satisfy the appearance standard. A material witness who is unable to do so is released under such conditions or limitations as the court finds adequate to ensure his later appearance to testify. If neither word nor bond nor conditions will suffice, the witness may be detained. The factors a court may consider in determining whether a material witness is likely to remain available include his deposition, character, health, and community ties.

Extradition

Federal bail laws make no mention of bail in extradition cases. The federal courts instead adhere to the doctrine announced by the Supreme Court over a century ago that "bail should not ordinarily be granted in cases of foreign extradition" except under "special circumstances." The doctrine has withstood constitutional challenge.

There is no precise definition of what constitutes "special circumstances"; the category is reserved for those extraordinary characteristics of a case which the court feels merit the designation. In the past, they have included, singularly or in some combination, factors such as

unusual delays prior to extradition; the likelihood that extradition may not be granted; the likelihood that the individual will prevail following extradition; the ill health of the individual; the availability of bail under the laws of both countries for the offense for which extradition was sought; the adverse impact on third parties of a refusal to grant bail; the fact that the individual was a minor; religious prerogatives lost if bail was not granted; and lack of urgency to prosecute previously evidenced by the requesting nation.

On the other hand, a partial list of what have not been found to be "special circumstances" includes

a significant bond and an unblemished record; requesting country would grant release on bail; United States would grant bail for comparable offense; relatively short delay between the alleged offense and the request for extradition; length of delay measured against the seriousness of the alleged offense; anticipation of lengthy extradition proceedings; need for dependents' financial and emotional support; need to confer with counsel; prison conditions; defendant's health; defendant being likely to prevail in foreign trial; the defendant being a highly trained doctor available to administer to the public; character evidence; need to consult with counsel and assist in gathering evidence to support defense; release of defendant's brother; and advanced age or infirmity.

In addition, the individual must establish that if released he will not flee or pose a danger and may be made subject to whatever relevant conditions the court deems to impose.

Appendix A. Federal Crimes with a Maximum Penalty of Death or Life Imprisonment

7 U.S.C. § 2146 (murder of a federal animal transportation inspector)

8 U.S.C. § 1324 (death resulting from smuggling aliens into the United States)

15 U.S.C. § 1825(a)(2)(C) (killing those enforcing the Horse Protection Act)

18 U.S.C. § 32 (death resulting from destruction of aircraft or their facilities)

18 U.S.C. § 33 (death resulting from destruction of motor vehicles or their facilities used in U.S. foreign commerce)

18 U.S.C. § 36 (murder by drive-by shooting)

18 U.S.C. § 37 (death resulting from violence at international airports)

18 U.S.C. § 38 (fraud involving aircraft or space vehicle parts resulting in death)

18 U.S.C. § 43 (force or violence involving animal enterprises where death results)

18 U.S.C. § 81 (life-threatening arson in the U.S. special maritime or territorial jurisdiction)

18 U.S.C. § 115(a)(1)(A) (murder of a family member of a U.S. officer, employee or judge with intent to impede or retaliate for performance of federal duties)

18 U.S.C. §115(a)(1)(B) (murder of a former U.S. officer, employee, or judge, or any member of their families, in retaliation for performance of federal duties)

18 U.S.C. § 175 (biological weapons)

18 U.S.C. § 175c (variola virus (smallpox))

18 U.S.C. § 225 (continuing financial enterprise)

18 U.S.C. § 229 (chemical weapons)

18 U.S.C. § 241 (death resulting from conspiracy against civil rights)

18 U.S.C. § 242 (death resulting from deprivation of civil rights under color of law)

18 U.S.C. § 245 (death resulting from deprivation of federally protected activities)

18 U.S.C. § 247 (death resulting from obstruction of religious beliefs)

18 U.S.C. § 248 (freedom of access to clinic entrances where death results)

18 U.S.C. § 249 (hate crime where death results)

18 U.S.C. § 351 (killing a Member of Congress, cabinet officer, or Supreme Court justice)

18 U.S.C. § 794 (espionage)

18 U.S.C. § 831 (nuclear materials)

18 U.S.C. § 832 (participant in foreign program involving nuclear or weapons of mass destruction)

18 U.S.C. § 844(d) (death resulting from the unlawful transportation of explosives in U.S. foreign commerce)

18 U.S.C. § 844(f) (death resulting from bombing federal property)

18 U.S.C. § 844(i) (death resulting from bombing property used in or used in an activity which affects U.S. foreign commerce)

18 U.S.C. § 924(c) (death resulting from carrying or using a firearm during and in relation to a crime of violence or a drug trafficking offense)

18 U.S.C. § 930(c) (use of a firearm or other dangerous weapon in a federal facility)

18 U.S.C. § 956 (conspiracy to commit overseas murder or kidnapping)

18 U.S.C. § 1030 (computer damage resulting in death)

18 U.S.C. § 1038 (false information or hoax resulting in death)

18 U.S.C. § 1091 (genocide when the offender is a U.S. national)

18 U.S.C. § 1111 (murder within the special maritime jurisdiction of the United States)

18 U.S.C. § 1114 (murder of a federal employee, including a member of the U.S. military, or anyone assisting a federal employee or member of the United States military during the performance of (or on account of) the performance of official duties)

18 U.S.C. § 1116 (murder of an internationally protected person)

18 U.S.C. § 1117 (conspiracy to commit murder proscribed under §§ 1111, 1114, 1116, or 1119)

18 U.S.C. § 1118 (murder by a federal prisoner)

18 U.S.C. § 1119 (murder of a U.S. national by another outside the United States)

18 U.S.C. § 1120 (murder by a person who has previously escaped from a federal prison)

18 U.S.C. § 1121(a) (murder of another who is assisting or because of the other's assistance in a federal criminal investigation or killing (because of official status) a state law enforcement officer assisting in a federal criminal investigation)

18 U.S.C. § 1201 (kidnapping where death results)

18 U.S.C. § 1203 (hostage taking where death results)

18 U.S.C. § 1347 (health care fraud where death results)

18 U.S.C. § 1365 (tampering with consumer products where death results)

18 U.S.C. § 1366 (destruction of energy facility property where death results)

18 U.S.C. § 1503 (murder to obstruct federal judicial proceedings)

18 U.S.C. § 1512 (tampering with a federal witness or informant where death results)

18 U.S.C. § 1513 (retaliatory murder of a federal witness or informant)

18 U.S.C. § 1581 (peonage involving killing, kidnapping, rape, or attempt to commit such offenses)

18 U.S.C. § 1583 (enticement into slavery involving killing, kidnapping, rape, or attempt to commit such offenses)

18 U.S.C. § 1584 (sale into involuntary servitude involving killing, kidnapping, rape, or attempt to commit such offenses)

18 U.S.C. § 1589 (forced labor involving killing, kidnapping, rape, or attempt to commit such offenses)

18 U.S.C. § 1590 (human trafficking involving killing, kidnapping, rape, or attempt to commit such offenses)

18 U.S.C. § 1591 (trafficking in children for sexual purposes)

18 U.S.C. § 1651 (piracy)

18 U.S.C. § 1652 (piracy)

18 U.S.C. § 1653 (piracy)

18 U.S.C. § 1655 (seaman laying violent hands upon a commander)

18 U.S.C. § 1658 (plunder of distressed vessel)

18 U.S.C. § 1661 (robbery ashore by pirates)

18 U.S.C. § 1716 (death resulting from mailing injurious items)

18 U.S.C. § 1751 (murder of the President, Vice President, or a senior White House official)

18 U.S.C. § 1864 (hazardous or injurious devices on federal law where death results)

18 U.S.C. § 1952 (interstate travel in aid of racketeering where death results)

18 U.S.C. § 1958 (murder for hire in violation of U.S. law)

18 U.S.C. § 1959 (murder in aid of racketeering)

18 U.S.C. § 1962 (RICO where the predicate offense is punishable by imprisonment for life)

18 U.S.C. § 1992 (attacks on railroad and mass transit systems engaged in interstate or foreign commerce resulting in death)

18 U.S.C. § 2113 (murder committed during the course of a bank robbery)

18 U.S.C. § 2118 (killing during the course of a controlled substance robbery or burglary)

18 U.S.C. § 2119 (death resulting from carjacking)

18 U.S.C. § 2155 (destruction of defense material where death results)

18 U.S.C. § 2199 (stowaways where death results)

18 U.S.C. § 2241 (aggravated sexual abuse within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. § 2242 (sexual abuse within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. §§ 2243, 2245 (sexual abuse of a minor or ward within the special maritime and territorial jurisdiction of the United States where death results)

18 U.S.C. §§ 2244, 2245 (abusive sexual contact within the special maritime and territorial jurisdiction of the United States where death results)

18 U.S.C. § 2251 (murder during the course of sexual exploitation of a child)

18 U.S.C. § 2252A(g) (child exploitation enterprises)

18 U.S.C. § 2261 (interstate domestic violence where death results)

18 U.S.C. § 2261A (interstate stalking where death results)

18 U.S.C. § 2262 (interstate violation of a protective order where death results)

18 U.S.C. § 2272 (destruction of a vessel by its owner)

18 U.S.C. § 2280 (killing resulting from violence against maritime navigation)

18 U.S.C. § 2280a (a killing resulting from violence against maritime navigation)

18 U.S.C. § 2281 (death resulting from violence against fixed maritime platforms)

18 U.S.C. § 2281a (additional offenses against fixed maritime platforms)

18 U.S.C. § 2282A (murder using devices or dangerous substances in U.S. waters)

18 U.S.C. § 2283 (transportation of explosives, biological, chemical, radioactive, or nuclear materials for terrorist purposes on the high seas or aboard a U.S. vessel or in U.S. waters)

18 U.S.C. § 2284 (transporting a terrorist)

18 U.S.C. § 2291 (murder in the destruction of vessels or maritime facilities)

18 U.S.C. § 2320 (trafficking in counterfeit goods where death results)

18 U.S.C. § 2332 (killing an American overseas)

18 U.S.C. § 2332a (death resulting from use of weapons of mass destruction)

18 U.S.C. § 2322b (multinational terrorism involving murder)

18 U.S.C. § 2332f (death resulting from bombing of public places, government facilities, public transportation systems, or infrastructure facilities)

18 U.S.C. § 2332g (anti-aircraft missiles)

18 U.S.C. § 2332h (radiological dispersal devices)

18 U.S.C. § 2332i (acts of nuclear terrorism)

18 U.S.C. § 2339A (providing material support to terrorists where death results)

18 U.S.C. § 2339B (providing material support to terrorist organizations where death results)

18 U.S.C. § 2340A (death resulting from torture committed outside the United States)

18 U.S.C. § 2381 (treason)

18 U.S.C. § 2422 (use of the mail or interstate commerce to coerce or entice a child to engage in sexual activity)

18 U.S.C. § 2423 (interstate transportation of a child for sexual purposes)

18 U.S.C. § 2441 (war crimes)

18 U.S.C. § 2442 (recruitment or use of children as soldiers where death results)

18 U.S.C. § 3261 (murder committed by members of the United States armed forces or accompanying or employed by the United States armed forces overseas)

21 U.S.C. § 461(c) (murder of federal poultry inspectors during or because of official duties)

21 U.S.C. § 675 (murder of federal meat inspectors during or because of official duties)

21 U.S.C. § 841 (trafficking in substantial amounts of a controlled substance)

21 U.S.C. § 848 (drug kingpin)

21 U.S.C. § 860(b) (trafficking in controlled substance near a school by a repeat offender)

21 U.S.C. § 960 (importing substantial amounts of a controlled substance)

21 U.S.C. § 960a (narco-terrorism)

21 U.S.C. § 1041(c) (murder of an egg inspector during or because of official duties)

42 U.S.C. § 2000e-13 (killing EEOC personnel during or because of official duties)

42 U.S.C. §§ 2077, 2272 (prohibitions governing atomic weapons)

42 U.S.C. §§ 2122, 2272 (prohibitions governing atomic weapons)

42 U.S.C. §§ 2131, 2272 (prohibitions governing atomic weapons)

42 U.S.C. § 2274 (communication of restricted data to injure the United States or aid a foreign nation)

42 U.S.C. § 2275 (receipt of restricted data to injure the United States or aid a foreign nation)

42 U.S.C. § 2276 (tampering with restricted data to injure the United States or aid a foreign nation)

42 U.S.C. § 2283 (killing federal nuclear inspectors during or because of official duties)

42 U.S.C. § 2284 (sabotage of nuclear facilities or fuel)

42 U.S.C. § 3631 (Fair Housing Act offenses involving killing, kidnapping, rape, or attempt to commit such offenses)

46 U.S.C. §§ 70503, 70506 (Maritime Drug Law Enforcement offenses track the penalties for violations of 21 U.S.C. § 960)

49 U.S.C. § 46502 (aircraft piracy if death results)

49 U.S.C. § 46503 (interference with a screening personnel using a dangerous weapon)

49 U.S.C. § 46504 (assault on a flight crew with a dangerous weapon)

49 U.S.C. § 46505 (carrying a weapon or explosive device aboard an aircraft if death results)

49 U.S.C. § 46506 (murder aboard an aircraft)

49 U.S.C. § 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility if death results)

Appendix B. Federal Crimes of Terrorism (18 U.S.C. § 2332b(g)(5)(B)) with a Maximum Penalty of 10 Years' Imprisonment or More

18 U.S.C. § 32 (destruction of aircraft or aircraft facilities) (other than 32(c) (threats)

18 U.S.C. § 37 (violence at international airports)

18 U.S.C. § 81 (arson within special maritime and territorial jurisdiction)

18 U.S.C. § 175 (biological weapons)

18 U.S.C. § 175b (transfer of biological weapons to restricted persons)

18 U.S.C. § 175c (variola virus)

18 U.S.C. § 229 (chemical weapons)

18 U.S.C. § 351(a) (b) (c) or (d) (congressional, cabinet, and Supreme Court assassination and kidnapping)

18 U.S.C. § 831 (nuclear materials)

18 U.S.C. § 832 (participation in nuclear and weapons of mass destruction threats to the United States)

18 U.S.C. §§ 842(m) or (n), 844(a) (plastic explosives)

18 U.S.C. § 844(d) (interstate transportation of explosives with intent to injure or destroy where death results)

18 U.S.C. § 844(f)(2) or (3) (arson and bombing of government property risking or causing death)

18 U.S.C. § 844(i) (arson and bombing of property used in interstate commerce)

18 U.S.C. § 930(c) (murder or conspiracy to murder during an attack on a Federal facility with a dangerous weapon)

18 U.S.C. § 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad)

18 U.S.C. § 1030(a)(1) (computers espionage to injure the United States or aid a foreign nation)

18 U.S.C. § 1030(a)(5)(A) (computer damage resulting in death or serious injury)

18 U.S.C. § 1114 (murder of officers and employees of the United States)

18 U.S.C. § 1116 (murder of foreign officials, official guests, or internationally protected persons)

18 U.S.C. § 1203 (hostage taking)

18 U.S.C. § 1347 (heath care fraud resulting in death)

18 U.S.C. § 1361 (destruction of government property valued at $1,000 or more)

18 U.S.C. § 1362 (destruction of a communications lines or facilities)

18 U.S.C. § 1363 (destruction of a dwelling in a federal enclave)

18 U.S.C. § 1366(a) (destruction of an energy facility)

18 U.S.C. § 1751(a) (b) (c) or (d) (presidential and presidential staff assassination and kidnapping)

18 U.S.C. § 1992 (terrorist attacks and other acts of violence against railroad carriers and against mass transportation systems on land, on water, or through the air)

18 U.S.C. § 2155 (destruction of national defense materials, premises, or utilities)

18 U.S.C. § 2156 (production of defective national defense material)

18 U.S.C. § 2280 (violence against maritime navigation) (other than § 2280(a)(2)(threats))

18 U.S.C. § 2280a (violence against maritime navigation involving weapons of mass destruction) (other than § 2280a(a)(2)(threats))

18 U.S.C. § 2281 (violence against maritime fixed platforms) (other than § 2281(a)(2)(threats))

18 U.S.C. § 2281a (violence against maritime fixed platforms involving weapons of mass destruction) (other than § 2281a(a)(2)(threats))

18 U.S.C. § 2332 (murder, attempted murder, or conspiracy to murder U.S. nationals overseas)

18 U.S.C. § 2332a (use of weapons of mass destruction)

18 U.S.C. § 2332b (acts of terrorism transcending national boundaries)

18 U.S.C. § 2332f (bombing of public places and facilities)

18 U.S.C. § 2332g (missile systems designed to destroy aircraft)

18 U.S.C. § 2332h (radiological dispersal devices)

18 U.S.C. § 2332i (nuclear terrorism)

18 U.S.C. § 2339 (harboring terrorists)

18 U.S.C. § 2339A (providing material support to terrorists)

18 U.S.C. § 2339B (providing material support to terrorist organizations)

18 U.S.C. § 2339C (financing of terrorism)

18 U.S.C. § 2339D (military-type training from a foreign terrorist organization)

18 U.S.C. § 2340A (torture)

21 U.S.C. § 960a (narco-terrorism)

42 U.S.C. § 2122 (prohibitions governing atomic weapons)

42 U.S.C. § 2284 (sabotage of nuclear facilities or fuel)

49 U.S.C. § 46502 (aircraft piracy)

49 U.S.C. § 46504 (second sentence) (assault on a flight crew with a dangerous weapon)

49 U.S.C. § 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft)

49 U.S.C. § 46506 if homicide or attempted homicide is involved (application of certain criminal laws to acts on aircraft)

49 U.S.C. § 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility)

Appendix C. Controlled Substance Offenses with a Maximum Penalty of 10 Years' Imprisonment or More

21 U.S.C. § 841(a), (b) (trafficking in schedule I or II controlled substances)

21 U.S.C. § 841(c) (trafficking in listed chemicals)

21 U.S.C. § 841(d) (boobytraps on federal property)

21 U.S.C. § 841(g) (Internet sale of date rape drugs)

21 U.S.C. § 843(a)(6),(7), (d)(2)(possession or manufacture of methamphetamine manufacturing paraphernalia)

21 U.S.C. § 844(a) (possession of crack cocaine)

21 U.S.C. § 846 (conspiracy to commit a 10-year controlled substances offense)

21 U.S.C. § 848 (drug kingpin)

21 U.S.C. § 849 (trafficking in schedule I, II, or III controlled substance at a truck stop)

21 U.S.C. § 854 (investment of illicit drug profits)

21 U.S.C. § 856 (maintaining drug-involved premises)

21 U.S.C. § 858 (dangerous production of illicit controlled substances)

21 U.S.C. § 859 (trafficking in schedule I, II, or III controlled substance to a child)

21 U.S.C. § 860 (trafficking in schedule I, II, or III controlled substance using a child or near a school)

21 U.S.C. § 861 (trafficking in schedule I, II, or III controlled substance using a child)

21 U.S.C. § 865 (smuggling methamphetamine or its precursors into the United States)

21 U.S.C. § 960 (& 46 U.S.C. § 70506) (illegal import or export of schedule I or II controlled substance)

21 U.S.C. § 960a (narco-terrorism)

46 U.S.C. § 70503 (Maritime Drug Law Enforcement Act violations)

Appendix D. Child-Victim Offenses That Qualify as Predicate Offenses for Bail Purposes

18 U.S.C. § 1201 (kidnapping of a child)

18 U.S.C. § 1591 (trafficking children for sexual purposes)

18 U.S.C. § 2241 (aggravated sexual abuse of a child)

18 U.S.C. § 2242 (sexual abuse of a child)

18 U.S.C. § 2244(a)(1) (abusive sexual conduct by force or threat of a child)

18 U.S.C. § 2245 (certain sex offense resulting in the death of a child)

18 U.S.C. § 2251 (sexual exploitation of children)

18 U.S.C. § 2251A (selling or buying children)

18 U.S.C. § 2252(a)(1) (transporting child sexual exploitive material)

18 U.S.C. § 2252(a)(2) (receiving or distributing child sexual exploitive material)

18 U.S.C. § 2252(a)(3) (possessing child sexual exploitive material with intent to sell)

18 U.S.C. § 2252A(a)(1) (transporting child pornography)

18 U.S.C. § 2252A(a)(2) (receiving or distributing child pornography)

18 U.S.C. § 2252A(a)(3) (promoting child pornography)

18 U.S.C. § 2252A(a)(4) (possessing child pornography with intent to sell)

18 U.S.C. § 2260 (overseas production of sexual explicit depiction of children)

18 U.S.C. § 2421 (interstate transportation of illicit sexual purposes)

18 U.S.C. § 2422 (coercing or enticing interstate travel for illicit sexual purposes)

18 U.S.C. § 2423 (interstate travel to engage in illicit sexual activities with a child)

18 U.S.C. § 2425 (interstate transmission of information relating to a child with the intent to engage in illicit sexual activities