Excerpted from: Bail, 40 Georgetown Law Journal Annual Review of Criminal Procedure 339 (2011) (86 footnotes Omitted)

The Eighth Amendment states that “[e] xcessive bail shall not be required,” a provision the Supreme Court has assumed applies to the states. This provision prohibits excessive bail where bail is offered, but does not create a right to bail. Bail is excessive when higher than reasonably necessary to ensure a defendant's appearance at trial or promote other compelling government interests.

The Bail Reform Act of 1984 governs release and detention determinations in federal criminal proceedings. The Bail Reform Act applies to defendants and material witnesses in criminal proceedings, but does not apply to extradition cases, where there is a presumption against bail. Courts have found that the Bail Reform Act creates a presumption against bail pending appeal, but allows release if certain conditions are met. Section 3143(b) of the Bail Reform Act has been applied to individuals requesting a writ of certiorari from the Supreme Court. Other statutes may govern release or detention determinations of alien defendants.

Under the Bail Reform Act, an authorized judicial officer may order the release or detention of a defendant pending trial. A detention hearing must be held when a defendant first appears before a judicial officer, unless the defendant or governmentseeks a continuance. Deviation from the statutory procedure for continuances, however, does not mandate release. On motion of the government, or sua sponte by the judicial officer, a detention hearing will also be held when a serious risk exists that the defendant will flee or will “obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.”

A judicial officer may release a defendant on personal recognizance, on unsecured appearance bond, or subject to conditions. Alternatively, the officer may temporarily detain a defendant pending revocation of a conditional release, deportation, or exclusion. The officer may also detain a defendant pending trial.

Pretrial Release. There is a presumption in favor of pretrial release. A judicial officer may impose conditions of release to reasonably ensure the defendant's appearance at trial or to protect the safety of the community or any person. Conditions of release may not be excessive within the meaning of the Eighth Amendment. Courts may set bail that defendants cannot meet but only if that particular financial condition is an indispensable term of release. As an exception, certain defendants may be temporarily detained for a maximum of ten working days to facilitate deportation or revocation of conditional release.

Pretrial Detention. The Bail Reform Act allows courts to detain an arrestee pending trial if the government demonstrates by clear and convincing evidence after an adversarial hearing that no release conditions will reasonably ensure the safety of the community. In United States v. Salerno, the Supreme Court held that pretrial detention of a defendant based solely on the risk of danger to the community does not violate due process. Nor does pretrial detention on the ground of dangerousness constitute “excessive bail” under the Eighth Amendment; the prohibition against excessive bail applies only to cases where it is appropriate to grant bail.

A judicial officer may also detain a defendant if the government proves by a preponderance of the evidence that the defendant poses a risk of flight such that no condition or combination of conditions will reasonably assure the defendant's presence at trial. In assessing risk of flight, courts consider a variety of factors, including the defendant's ties to the community, past criminal history, and availability of assets. To detain a defendant, a judicial officer must find the defendant to be either a risk of flight or a danger to the community; proof of both is not necessary.

Due Process challenges brought by pretrial detainees are properly reviewed under the Due Process Clause of the Fourteenth Amendment, not under the Cruel and Unusual Punishment Clause of the Eighth Amendment. Because pretrial detainees by definition have not been found guilty of a crime, the power to punish under the Eighth Amendment has not been implicated. A detention long enough to constitute punishment may be held to violate due process. Due process requires statutes imposing pretrial detention to serve a compelling government interest and not impose punishment before adjudication of guilt. Moreover, government action that deprives an individual of life, liberty, or property must be implemented in a fair, nonarbitrary manner.

Mistreatment of detainees violates due process. The “deliberate indifference” standard determines whether a prison officials' alleged neglect or mistreatment violated a detainee's Fourteenth Amendment due process rights. An official acts with “deliberate indifference” by recklessly disregarding a risk of which the official was aware, thus jeopardizing a detainee's safety. A detention facility's policy implemented with “deliberate indifference” to the rights of detainees violates the detainees' due process rights.

Rebuttable Presumptions of Dangerousness. A rebuttable presumption of dangerousness arises when: (1) a judicial officer finds that a defendant is charged with a crime of violence, a capital offense, or a drug felony that carries a maximum term of imprisonment of ten years or more; and (2) the defendant was previously convicted of, or released from prison for, a similar offense not more than five years before the judicial finding. A rebuttable presumption of both dangerousness and risk of flight arises when: (1) a defendant is charged with a drug felony that carries a maximum term of imprisonment of ten years or more, or with the use or possession of a firearm during the commission of any crime of violence or drug trafficking; and (2) the judicial officer finds probable cause to believe the defendant committed the offense charged. An indictment for any other crime enumerated in the Bail Reform Act is also enough to trigger the presumption. The presumption shifts the burden of production to the defendant, but the government retains the burden of persuasion. If the defendant successfully rebuts the presumption, the presumption still may be considered in release or detention determinations.

Detention Hearings. The Federal Rules of Evidence do not apply at detention hearings. Evidence inadmissible at trial, such as hearsay, may be used in a detention hearing, but not all categories of evidence are admissible. A defendanthas the right to have counsel present, to testify on his or her own behalf, to cross-examine witnesses, and to present evidence. A defendant's remarks at a detention hearing are admissible in a subsequent trial on the same charge without violating the defendant's Fifth Amendment privilege against self-incrimination. Rule 9 of the Federal Rules of Appellate Procedure requires district courts to “state in writing, or orally on the record,” their reasons for detaining or releasing a defendant.

Amendment and Review of Detention and Release Orders. The judicial officer who originally imposed conditions of pretrial release may, at any time, amend the order and impose additional or different conditions. Pretrial conditions of release remain in effect during trial unless the court determines that custody or imposition of other conditions is necessary to assure the defendant's presence during the trial or to assure that the defendant's conduct will not obstruct the orderly and expeditious progress of the trial. The government or the defendant may appeal the entry of any such order by a district court.

When reviewing a contested pretrial order of a magistrate, a district court is not limited to the magistrate's findings and may conduct a second evidentiary hearing to make a de novo determination. Some circuits review the district court's decision under a deferential standard; others undertake an independent review with some deference to the district court's findings.

Release Pending Appeal. The Bail Reform Act creates a presumption against release pending appeal. Once a defendant is convicted, the court must order detention unless it makes two findings. First, the defendant must show by clear and convincing evidence that he or she is not likely to flee or pose a danger to the safety of any person or the community. Second, the court must find that the defendant's appeal is not for the purpose of delay and raises a “substantial question of law or fact” likely to result in a reversal, a new trial, a sentence with no imprisonment, or a sentence less than the total already served, including the expected length of the appeal process. Courts need only determine whether a new trial, reversal, or reduced sentence is likely if the defendant prevails; they need not determine whether it is likely that the defendant actually will prevail. Most circuits have interpreted a “substantial question of law or fact” to mean a close question that could be decided either way, not necessarily requiring the trial judge to determine whether the ruling is actually likely to be reversed.

For crimes of violence, capital offenses, and drug offenses with a maximum imprisonment of ten years or more, the Bail Reform Act directs the court to detain the defendant pending appeal. The court may release the defendant only if it finds “exceptional reasons” as to why the defendant's detention pending appeal would be inappropriate. The standard of review for bail determinations pending appeal is not specified in the Bail Reform Act, but courts that have considered the issue have used standards similar to those used in reviewing pretrial bail determinations.

Violation of Release Conditions. A defendant who violates a condition of release is subject to revocation of release, order of detention, or prosecution for contempt of court. If a defendant released on bond violates a bond condition, the government may begin a civil proceeding against the defendant by petitioning the court to declare a forfeiture of the bond. The bond forfeiture subsequently may be set aside or enforced, and the court may remit bail in whole or in part to the surety. Appellate courts review forfeiture orders for abuse of discretion.

A defendant who knowingly fails to appear as required is subject to fine, imprisonment, or both. The defendant may assert an affirmative defense for failure to appear by showing that: (1) uncontrollable circumstances prevented the defendant's appearance or surrender; (2) the defendant did not contribute to such circumstances in reckless disregard of the appearance requirement; and (3) the defendant appeared or surrendered as soon as these circumstances ceased to exist. The penalty for failure to appear depends on the severity of the punishment for the underlying offense with which the defendant is charged.

If the defendant commits a crime while on release, a mandatory additional sentence is imposed upon conviction with a maximum of ten years imprisonment for a felony and a maximum of one year for a misdemeanor. A finding of probable cause to believe that the defendant committed a felony while on release gives rise to a rebuttable presumption that no condition or combination of conditions will assure the safety of the community in a subsequent determination of pretrial detention.