Reforming federal bail law

Bail reform is in the wind. On any given day, an estimated half million people are detained across the U.S. because of an inability to post bail. The costs of pre-trial detention are enormous, both in terms of taxpayer money and the impact it has on the lives of detainees, their families, and their neighborhoods. The No Money Bail Act of 2017, H.R. 1437, provides the following Congressional findings:

(1) Nearly 60 percent of the inmates in jails in the United States are pretrial detainees who have not been convicted of a crime, an estimated 75 percent of whom have been charged with nonviolent crimes.

(2) Under current bail systems that use payment of money as a condition of pretrial release, nearly 50 percent of the most dangerous pretrial detainees are released without supervision, according to a study by the Arnold Foundation.

(3) Throughout the Nation, those with money can buy their freedom while poor defendants remain incarcerated awaiting trial.

(4) Pretrial detention costs State and local governments an estimated $14,000,000,000 each year.

(5) Pretrial detention should be based on whether the accused is likely to fail to appear in court or is a threat to public safety, not the ability to pay money as a condition of pretrial release.

(6) The States, the United States Department of Justice, law enforcement agencies, public officials, and community groups should collaborate to develop pretrial detention systems that improve public safety, reduce costs, and discourage criminal behavior.

And recently, S. 1593, A bill to provide grants to States and Indian tribes to reform their criminal justice system to encourage the replacement of the use of payment of secured money bail as a condition of pretrial release in criminal cases, and for other purposes, was submitted in the Senate.

With the pending federal bail reform legislation in play, the Congressional Research Service has released Bail: An Overview of Federal Criminal Law, (July 31, 2017, R40211): From the introduction:

This is an overview of the federal law of bail. Bail is the release of an individual following his arrest upon his promise—secured or unsecured; conditioned or unconditioned—to appear at subsequent judicial criminal proceedings. An accused may be denied bail if he is unable to satisfy the conditions set for his release. He may also be denied bail if the committing judge or magistrate concludes that no amount of security or any set of conditions will suffice to ensure public safety or the individual’s later appearance in court.

The federal bail statute layers the committing judge’s or magistrate’s bail options after arrest and before trial. He may release the individual upon his promise to return—that is, on personal recognizance or under an unsecured appearance bond. Alternatively, the judge or magistrate may condition the individual’s release on the least restrictive possible combination of individual or statutory conditions. The statute, however, creates a presumption against release when the individual has been charged with a serious drug, firearms, or terrorist offense. In the case of these and other serious offenses, the judge or magistrate may deny release on bail if he decides, after a hearing, that no set of conditions will guarantee public safety or the individual’s return to court. The judge or magistrate may also deny the individual bail in order to transfer him for bail, parole, or supervised release revocation proceedings. Bail is available to a more limited extent after the individual has been convicted and is awaiting a pending appeal.

Federal law also authorizes the arrest, bail, or detention of individuals with evidence material to the prosecution of a federal offense. With limited variations, federal bail laws apply to arrested material witnesses.

Although not specifically mentioned in the federal bail statute, bail is available in extradition cases under a long-standing Supreme Court precedent which holds that “bail should not ordinarily be granted in cases of foreign extradition” except under “special circumstances.”

— Joe

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