§ 3142. — Release or detention of a defendant pending trial.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC3142]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART II--CRIMINAL PROCEDURE
CHAPTER 207--RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS
Sec. 3142. Release or detention of a defendant pending trial
(a) In General.--Upon the appearance before a judicial officer of a
person charged with an offense, the judicial officer shall issue an
order that, pending trial, the person be--
(1) released on personal recognizance or upon execution of an
unsecured appearance bond, under subsection (b) of this section;
(2) released on a condition or combination of conditions under
subsection (c) of this section;
(3) temporarily detained to permit revocation of conditional
release, deportation, or exclusion under subsection (d) of this
section; or
(4) detained under subsection (e) of this section.
(b) Release on Personal Recognizance or Unsecured Appearance Bond.--
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, 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.
(c) Release on Conditions.--(1) If the judicial officer determines
that the release described in subsection (b) of this section will not
reasonably assure the appearance of the person as required or will
endanger the safety of any other person or the community, such judicial
officer shall order the pretrial release of the person--
(A) subject to the condition that the person not commit a
Federal, State, or local crime during the period of release; and
(B) subject to the least restrictive further condition, or
combination of conditions, that such judicial officer determines
will reasonably assure the appearance of the person as required and
the safety of any other person and the community, which may include
the condition that the person--
(i) remain in the custody of a designated person, who agrees
to assume supervision and to report any violation of a release
condition to the court, if the designated person is able
reasonably to assure the judicial officer that the person will
appear as required and will not pose a danger to the safety of
any other person or the community;
(ii) maintain employment, or, if unemployed, actively seek
employment;
(iii) maintain or commence an educational program;
(iv) abide by specified restrictions on personal
associations, place of abode, or travel;
(v) avoid all contact with an alleged victim of the crime
and with a potential witness who may testify concerning the
offense;
(vi) report on a regular basis to a designated law
enforcement agency, pretrial services agency, or other agency;
(vii) comply with a specified curfew;
(viii) refrain from possessing a firearm, destructive
device, or other dangerous weapon;
(ix) refrain from excessive use of alcohol, or any use of a
narcotic drug or other controlled substance, as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802),
without a prescription by a licensed medical practitioner;
(x) undergo available medical, psychological, or psychiatric
treatment, including treatment for drug or alcohol dependency,
and remain in a specified institution if required for that
purpose;
(xi) execute an agreement to forfeit upon failing to appear
as required, property of a sufficient unencumbered value,
including money, as is reasonably necessary to assure the
appearance of the person as required, and shall provide the
court with proof of ownership and the value of the property
along with information regarding existing encumbrances as the
judicial office may require;
(xii) execute a bail bond with solvent sureties; who will
execute an agreement to forfeit in such amount as is reasonably
necessary to assure appearance of the person as required and
shall provide the court with information regarding the value of
the assets and liabilities of the surety if other than an
approved surety and the nature and extent of encumbrances
against the surety's property; such surety shall have a net
worth which shall have sufficient unencumbered value to pay the
amount of the bail bond;
(xiii) return to custody for specified hours following
release for employment, schooling, or other limited purposes;
and
(xiv) satisfy any other condition that is reasonably
necessary to assure the appearance of the person as required and
to assure the safety of any other person and the community.
(2) The judicial officer may not impose a financial condition that
results in the pretrial detention of the person.
(3) The judicial officer may at any time amend the order to impose
additional or different conditions of release.
(d) Temporary Detention To Permit Revocation of Conditional Release,
Deportation, or Exclusion.--If the judicial officer determines that--
(1) such person--
(A) is, and was at the time the offense was committed, on--
(i) release pending trial for a felony under Federal,
State, or local law;
(ii) release pending imposition or execution of
sentence, appeal of sentence or conviction, or completion of
sentence, for any offense under Federal, State, or local
law; or
(iii) probation or parole for any offense under Federal,
State, or local law; or
(B) is not a citizen of the United States or lawfully
admitted for permanent residence, as defined in section
101(a)(20) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(20)); and
(2) such person may flee or pose a danger to any other person or
the community;
such judicial officer shall order the detention of such person, for a
period of not more than ten days, excluding Saturdays, Sundays, and
holidays, and direct the attorney for the Government to notify the
appropriate court, probation or parole official, or State or local law
enforcement official, or the appropriate official of the Immigration and
Naturalization Service. If the official fails or declines to take such
person into custody during that period, such person shall be treated in
accordance with the other provisions of this section, notwithstanding
the applicability of other provisions of law governing release pending
trial or deportation or exclusion proceedings. If temporary detention is
sought under paragraph (1)(B) of this subsection, such person has the
burden of proving to the court such person's United States citizenship
or lawful admission for permanent residence.
(e) Detention.--If, after a hearing pursuant to the provisions of
subsection (f) of this section, the judicial officer finds that no
condition or combination of conditions will reasonably assure the
appearance of the person as required and the safety of any other person
and the community, such judicial officer shall order the detention of
the person before trial. In a case described in subsection (f)(1) of
this section, a rebuttable presumption arises that no condition or
combination of conditions will reasonably assure the safety of any other
person and the community if such judicial officer finds that--
(1) the person has been convicted of a Federal offense that is
described in subsection (f)(1) of this section, or of a State or
local offense that would have been an offense described in
subsection (f)(1) of this section if a circumstance giving rise to
Federal jurisdiction had existed;
(2) the offense described in paragraph (1) of this subsection
was committed while the person was on release pending trial for a
Federal, State, or local offense; and
(3) a period of not more than five years has elapsed since the
date of conviction, or the release of the person from imprisonment,
for the offense described in paragraph (1) of this subsection,
whichever is later.
Subject to rebuttal by the person, it shall be presumed that no
condition or combination of conditions will reasonably assure the
appearance of the person as required and the safety of the community if
the judicial officer finds that there is probable cause to believe that
the person committed an offense for which a maximum term of imprisonment
of ten years or more is prescribed in the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21
U.S.C. 951 et seq.), the Maritime Drug Law Enforcement Act (46 U.S.C.
App. 1901 et seq.), or an offense under section 924(c), 956(a), or 2332b
of title 18 of the United States Code.
(f) Detention Hearing.--The judicial officer shall hold a hearing to
determine whether any condition or combination of conditions set forth
in subsection (c) of this section will reasonably assure the appearance
of such person as required and the safety of any other person and the
community--
(1) upon motion of the attorney for the Government, in a case
that involves--
(A) a crime of violence;
(B) an offense for which the maximum sentence is life
imprisonment or death;
(C) an offense for which a maximum term of imprisonment of
ten years or more is prescribed in the Controlled Substances Act
(21 U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law
Enforcement Act (46 U.S.C. App. 1901 et seq.); or
(D) any felony if such person has been convicted of two or
more offenses described in subparagraphs (A) through (C) of this
paragraph, or two or more State or local offenses that would
have been offenses described in subparagraphs (A) through (C) of
this paragraph if a circumstance giving rise to Federal
jurisdiction had existed, or a combination of such offenses; or
(2) upon motion of the attorney for the Government or upon the
judicial officer's own motion in a case, that involves--
(A) a serious risk that such person will flee; or
(B) a serious risk that such person will obstruct or attempt
to obstruct justice, or threaten, injure, or intimidate, or
attempt to threaten, injure, or intimidate, a prospective
witness or juror.
The hearing shall be held immediately upon the person's first appearance
before the judicial officer unless that person, or the attorney for the
Government, seeks a continuance. Except for good cause, a continuance on
motion of such person may not exceed five days (not including any
intermediate Saturday, Sunday, or legal holiday), and a continuance on
motion of the attorney for the Government may not exceed three days (not
including any intermediate Saturday, Sunday, or legal holiday). During a
continuance, such person shall be detained, and the judicial officer, on
motion of the attorney for the Government or sua sponte, may order that,
while in custody, a person who appears to be a narcotics addict receive
a medical examination to determine whether such person is an addict. At
the hearing, such person has the right to be represented by counsel,
and, if financially unable to obtain adequate representation, to have
counsel appointed. The person shall be afforded an opportunity to
testify, to present witnesses, to cross-examine witnesses who appear at
the hearing, and to present information by proffer or otherwise. The
rules concerning admissibility of evidence in criminal trials do not
apply to the presentation and consideration of information at the
hearing. The facts the judicial officer uses to support a finding
pursuant to subsection (e) that no condition or combination of
conditions will reasonably assure the safety of any other person and the
community shall be supported by clear and convincing evidence. The
person may be detained pending completion of the hearing. The hearing
may be reopened, before or after a determination by the judicial
officer, at any time before trial if the judicial officer finds that
information exists that was not known to the movant at the time of the
hearing and that has a material bearing on the issue whether there are
conditions of release that will reasonably assure the appearance of such
person as required and the safety of any other person and the community.
(g) Factors To Be Considered.--The judicial officer shall, in
determining whether there are conditions of release that will reasonably
assure the appearance of the person as required and the safety of any
other person and the community, take into account the available
information concerning--
(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence or involves a
narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including--
(A) the person's character, physical and mental condition,
family ties, employment, financial resources, length of
residence in the community, community ties, past conduct,
history relating to drug or alcohol abuse, criminal history, and
record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest,
the person was on probation, on parole, or on other release
pending trial, sentencing, appeal, or completion of sentence for
an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or
the community that would be posed by the person's release. In
considering the conditions of release described in subsection
(c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial
officer may upon his own motion, or shall upon the motion of the
Government, conduct an inquiry into the source of the property to be
designated for potential forfeiture or offered as collateral to
secure a bond, and shall decline to accept the designation, or the
use as collateral, of property that, because of its source, will not
reasonably assure the appearance of the person as required.
(h) Contents of Release Order.--In a release order issued under
subsection (b) or (c) of this section, the judicial officer shall--
(1) include a written statement that sets forth all the
conditions to which the release is subject, in a manner sufficiently
clear and specific to serve as a guide for the person's conduct; and
(2) advise the person of--
(A) the penalties for violating a condition of release,
including the penalties for committing an offense while on
pretrial release;
(B) the consequences of violating a condition of release,
including the immediate issuance of a warrant for the person's
arrest; and
(C) sections 1503 of this title (relating to intimidation of
witnesses, jurors, and officers of the court), 1510 (relating to
obstruction of criminal investigations), 1512 (tampering with a
witness, victim, or an informant), and 1513 (retaliating against
a witness, victim, or an informant).
(i) Contents of Detention Order.--In a detention order issued under
subsection (e) of this section, the judicial officer shall--
(1) include written findings of fact and a written statement of
the reasons for the detention;
(2) direct that the person be committed to the custody of the
Attorney General for confinement in a corrections facility separate,
to the extent practicable, from persons awaiting or serving
sentences or being held in custody pending appeal;
(3) direct that the person be afforded reasonable opportunity
for private consultation with counsel; and
(4) direct that, on order of a court of the United States or on
request of an attorney for the Government, the person in charge of
the corrections facility in which the person is confined deliver the
person to a United States marshal for the purpose of an appearance
in connection with a court proceeding.
The judicial officer may, by subsequent order, permit the temporary
release of the person, in the custody of a United States marshal or
another appropriate person, to the extent that the judicial officer
determines such release to be necessary for preparation of the person's
defense or for another compelling reason.
(j) Presumption of Innocence.--Nothing in this section shall be
construed as modifying or limiting the presumption of innocence.
(Added Pub. L. 98-473, title II, Sec. 203(a), Oct. 12, 1984, 98 Stat.
1976; amended Pub. L. 99-646, Secs. 55(a), (c), 72, Nov. 10, 1986, 100
Stat. 3607, 3617; Pub. L. 100-690, title VII, Sec. 7073, Nov. 18, 1988,
102 Stat. 4405; Pub. L. 101-647, title X, Sec. 1001(b), title XXXVI,
Secs. 3622-3624, Nov. 29, 1990, 104 Stat. 4827, 4965; Pub. L. 104-132,
title VII, Secs. 702(d), 729, Apr. 24, 1996, 110 Stat. 1294, 1302.)
References in Text
The Controlled Substances Act, referred to in subsecs. (e) and
(f)(1)(C), is title II of Pub. L. 91-513, Oct. 27, 1970, 84 Stat. 1242,
as amended, which is classified principally to subchapter I (Sec. 801 et
seq.) of chapter 13 of Title 21, Food and Drugs. For complete
classification of this Act to the Code, see Short Title note set out
under section 801 of Title 21 and Tables.
The Controlled Substances Import and Export Act, referred to in
subsecs. (e) and (f)(1)(C), is title III of Pub. L. 91-513, Oct. 27,
1970, 84 Stat. 1285, as amended, which is classified principally to
subchapter II (Sec. 951 et seq.) of chapter 13 of Title 21. For complete
classification of this Act to the Code, see Short Title note set out
under section 951 of Title 21 and Tables.
The Maritime Drug Law Enforcement Act, referred to in subsecs. (e)
and (f)(1)(C), is Pub. L. 96-350, Sept. 15, 1980, 94 Stat. 1159, as
amended, which is classified generally to chapter 38 (Sec. 1901 et seq.)
of Title 46, Appendix, Shipping. For complete classification of this Act
to the Code, see section 1901 of Title 46, Appendix, and Tables.
Prior Provisions
A prior section 3142, acts June 25, 1948, ch. 645, 62 Stat. 821;
June 22, 1966, Pub. L. 89-465, Sec. 5(c), 80 Stat. 217, set forth
provisions relating to surrender by bail, prior to repeal in the
revision of this chapter by section 203(a) of Pub. L. 98-473.
Amendments
1996--Subsec. (e). Pub. L. 104-132, Sec. 702(d), inserted ``,
956(a), or 2332b'' after ``section 924(c)'' in concluding provisions.
Subsec. (f). Pub. L. 104-132, Sec. 729, in concluding provisions,
inserted ``(not including any intermediate Saturday, Sunday, or legal
holiday)'' after ``five days'' and after ``three days''.
1990--Subsec. (c)(1)(B)(xi). Pub. L. 101-647, Sec. 3622, amended cl.
(xi) generally. Prior to amendment, cl. (xi) read as follows: ``execute
an agreement to forfeit upon failing to appear as required, such
designated property, including money, as is reasonably necessary to
assure the appearance of the person as required, and post with the court
such indicia of ownership of the property or such percentage of the
money as the judicial officer may specify;''.
Subsec. (c)(1)(B)(xii). Pub. L. 101-647, Sec. 3623, amended cl.
(xii) generally. Prior to amendment, cl. (xii) read as follows:
``execute a bail bond with solvent sureties in such amount as is
reasonably necessary to assure the appearance of the person as
required;''.
Subsecs. (e), (f)(1)(C). Pub. L. 101-647, Sec. 1001(b), substituted
``the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)''
for ``section 1 of the Act of September 15, 1980 (21 U.S.C. 955a)''.
Subsec. (g)(4). Pub. L. 101-647, Sec. 3624, substituted ``subsection
(c)(1)(B)(xi) or (c)(1)(B)(xii)'' for ``subsection (c)(2)(K) or
(c)(2)(L)''.
1988--Subsec. (c)(3). Pub. L. 100-690 substituted ``the order'' for
``order''.
1986--Subsec. (a). Pub. L. 99-646, Sec. 55(a), (c)(1), in par. (1)
struck out ``his'' after ``released on'' and substituted ``under
subsection (b) of this section'' for ``pursuant to the provisions of
subsection (b)'', in par. (2) substituted ``under subsection (c) of this
section'' for ``pursuant to the provisions of subsection (c)'', in par.
(3) substituted ``under subsection (d) of this section'' for ``pursuant
to provisions of subsection (d)'', and in par. (4) substituted ``under
subsection (e) of this section'' for ``pursuant to provisions of
subsection (e)''.
Subsec. (b). Pub. L. 99-646, Sec. 55(c)(2), struck out ``his'' after
``person on'' and ``period of''.
Subsec. (c). Pub. L. 99-646, Sec. 55(c)(3), designated existing
provision as par. (1) and redesignated former pars. (1) and (2) as
subpars. (A) and (B), in provision preceding subpar. (A) substituted
``subsection (b) of this section'' for ``subsection (b)'' and ``such
judicial officer'' for ``he'', in subpar. (B) redesignated subpars. (A)
to (N) as cls. (i) to (xiv), in provision preceding cl. (i) substituted
``such judicial officer'' for ``he'', in cl. (i) substituted ``assume
supervision'' for ``supervise him'', in cl. (iv) substituted ``on
personal'' for ``on his personal'', in cl. (x) substituted ``medical,
psychological,'' for ``medical'', designated provision relating to the
judicial officer not imposing a financial condition that results in the
pretrial detention of a person as par. (2), and designated provision
permitting the judicial officer to impose at any time additional or
different conditions of release as par. (3), and in par. (3) struck out
``his'' after ``amend''.
Subsec. (d). Pub. L. 99-646, Sec. 55(c)(4), in pars. (1) and (2)
substituted ``such person'' for ``the person'' and in concluding
provisions substituted ``such person'' for ``the person'' in four
places, ``such judicial officer'' for ``he'', ``paragraph (1)(B) of this
subsection'' for ``paragraph (1)(B)'', and ``such person's United States
citizenship or lawful admission'' for ``that he is a citizen of the
United States or is lawfully admitted''.
Subsec. (e). Pub. L. 99-646, Sec. 55(c)(5), in introductory
provisions inserted ``of this section'' after ``subsection (f)'' and
substituted ``such judicial officer'' for ``he'', ``before'' for ``prior
to'', ``described in subsection (f)(1) of this section'' for ``described
in (f)(1)'', and ``if such judicial officer'' for ``if the judge'', in
par. (1) inserted ``of this section'' after ``subsection (f)(1)'' in two
places, and in pars. (2) and (3) inserted ``of this section'' after
``paragraph (1)''.
Subsec. (f). Pub. L. 99-646, Sec. 72, in par. (1)(D) substituted
``any felony if the person has been convicted of two or more offenses''
for ``any felony committed after the person had been convicted of two or
more prior offenses'' and inserted ``, or a combination of such
offenses'', in par. (2)(A) inserted ``or'' after ``flee;'', and in
concluding provisions, inserted provision permitting the hearing to be
reopened at any time before trial if the judicial officer finds that
information exists that was unknown to the movant at the time of the
hearing and that has a material bearing on whether there are conditions
of release that will reasonably assure the appearance of the person as
required and the safety of any other person and the community.
Pub. L. 99-646, Sec. 55(c)(6), substituted ``such person'' for ``the
person'' wherever appearing, in introductory provision inserted ``of
this section'' after ``subsection (c)'' and struck out ``in a case''
after ``community'', in par. (1) inserted ``in a case'' and in subpar.
(D) of par. (1) inserted ``of this paragraph'' in two places, in par.
(2) substituted ``upon'' for ``Upon'' and inserted ``in a case'', and in
concluding provisions, substituted ``sua sponte'' for ``on his own
motion'', ``whether such person is an addict'' for ``whether he is an
addict'', and ``financially'' for ``he is financially'', and struck out
``for him'' after ``appointed'' and ``on his own behalf'' after
``witnesses''.
Subsec. (g). Pub. L. 99-646, Sec. 55(c)(7), in par. (3)(A)
substituted ``the person's'' for ``his'', in par. (3)(B) substituted
``the person'' for ``he'', and in par. (4) inserted ``of this section''.
Subsec. (h). Pub. L. 99-646, Sec. 55(a), (c)(8), in introductory
provision substituted ``under'' for ``pursuant to the provisions of''
and inserted ``of this section'' and in par. (2)(C) struck out ``the
provisions of'' before ``sections 1503''.
Subsec. (i). Pub. L. 99-646, Sec. 55(a), (c)(9), in introductory
provision substituted ``under'' for ``pursuant to the provisions of''
and inserted ``of this section'' and in par. (3) struck out ``his''
after ``consultation with''.
Effective Date of 1990 Amendment
Amendment by sections 3622 to 3624 of Pub. L. 101-647 effective 180
days after Nov. 29, 1990, see section 3631 of Pub. L. 101-647, set out
as an Effective Date note under section 3001 of Title 28, Judiciary and
Judicial Procedure.
Effective Date of 1986 Amendment
Amendment by Pub. L. 99-646 effective 30 days after Nov. 10, 1986,
see section 55(j) of Pub. L. 99-646, set out as a note under section
3141 of this title.
Abolition of Immigration and Naturalization Service and Transfer of
Functions
For abolition of Immigration and Naturalization Service, transfer of
functions, and treatment of related references, see note set out under
section 1551 of Title 8, Aliens and Nationality.
Section Referred to in Other Sections
This section is referred to in sections 2263, 3041, 3042, 3062,
3143, 3144, 3146, 3148, 3156, 3264, 3265, 3582, 4014 of this title;
title 8 sections 1536, 1537; title 28 section 636.
