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Since 1984, Congress has passed three omnibus crime control bills. The Comprehensive Crime Control Act of 1984 (P. L. 98-473) overhauled the federal sentencing system and revised bail and forfeiture procedures along with other federal practices. Chapter IV (the Justice Assistance Act) of the 1984 Act established DOJ's leading grant-making administrative agency, the Office of Justice Programs (OJP). Headed by an Assistant Attorney General, OJP coordinates the activities of the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, and the Office of Juvenile Justice and Delinquency Prevention. The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides for the development of guidelines that will fu rther the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process. The Act contains detailed instructions as to how this determination should be made, the most important of which directs the Commission to create categories of offense behavior and offender characteristics. An offense behavior category might consist, for example, of "bank robbery/committed with a gun/$2500 taken." An offender characteristic category might be "offender with one prior conviction not resulting in imprisonment." The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons determined by coordinating the offense behavior categories with the offender characteristic categories. Where the guidelines call for imprisonment, the range must be narrow: the m aximum of the range cannot exceed the minimum by more than the greater of 25 percent or six months. 28 U.S.C. § 994(b)(2). Pursuant to the Act, the sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. § 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. § 3742. The Act also abolishes parole, and substantially reduces and restructures good behavior adjustments. The Commission's initial guidelines were submitted to Congress on April 13, 1987. After the prescribed period of Congressional r eview, the guidelines took effect on November 1, 1987, and apply to all offenses committed on or after that date. The Commission has the authority to submit guideline amendments each year to Congress between the beginning of a regular Congressional session and May 1. Such amendments automatically take effect 180 days after submission unless a law is enacted to the contrary. 28 U.S.C. § 994(p). The initial sentencing guidelines and policy statements were developed after extensive hearings, deliberation, and consideration of substantial public comment. The Commission emphasizes, however, that it views the guideline-writing process as evolutionary. It expects, and the governing statute anticipates, that continuing research, experience, and analysis will result in modifications and revisions to the guidelines through submission of amendments to Congress. To this end, the Commission is established as a permanent agency to monitor sentencing practices in the federal courts.
Prior to enactment of The Comprehensive Crime Control Act of 1984, bail determinations were governed by The Bail Reform Act of 1966, w hich was codified into law at 18 U.S.C. §3146-3151. Generally speaking, these provisions provided that all persons accused of violating federal law would be released from custody without having to post any bond with the Court unless the Government could demonstrate that the defendant was likely to flee the jurisdiction of the Court to avoid prosecution. The fact that a given defendant might pose a danger to the community was not a factor a magistrate could consider in determining whether a defendant should be released from custody. Indeed, under The Bail Reform Act of 1966, magistrates were required to release those accused of violating federal law without requiring any financial bond unless it was determined from the facts of a given case that additional conditions of release were necessary.
In determining which conditions of release would reasonably assure the defendant’s appearance at all Court appearances during the pendency of his case (which was the true litmus test of The Bail Reform Act), the magistrate was required to take into account 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 other Court proceedings.
If, after examination of these facts, it was determined that certain conditions of release were necessary to assure the defendant’s appearance at future Court appearances, the magistrate could order that some sort of secured bond be posted. Even in this instance, however, the Court could not under The 1966 Bail Reform Act order imposition of a financial bond unless he first found that other conditions of release would not assure the defendant’s appearance at all Court proceedings. Accordingly, the reviewing magistrate was to consider whether pre-trial service supervision, travel restrictions, reporting requirements or other alternative conditions of release would guarantee the defendant’s appearance.
Only if a magistrate found that no such conditions would serve to guarantee the defendant’s appearance could he order a financial bond. Even here, he was first to consider an appearance bond secured by a refundable percentage deposit. For example, bond could be set in the amount of $10,000.00 with the defendant being required to post $1,000.00 with the Court prior to release. As an incentive to the defendant, this amount would be refunded if he kept all scheduled Court appearances. After considering all of these alternatives, if a magistrate nonetheless concluded that a security or cash bond was required to assure the defendant’s appearance, only then could he impose this requirement as a condition of release. As is apparent, the emphasis of The Bail Reform Act of 1966 was on release and a person’s financial ability to post a monetary bond was of secondary importance.
If John Doe, our hypothetical bank robber, was arrested prior to October 12, 1984, there existed a presumption in favor of his release on an unsecured bond, commonly referred to as an O.R. bond. Literally speaking, he would be presumed to be entitled to release on his own recognizance (O.R.), said release being effectuated merely by signing a bond, promising to appear in Court as scheduled and promising to pay a certain amount of money should he fail to do so.
The fact that he might pose a danger to the community at large should he be released was legally irrelevant. Because bank robbery carries a substantial penalty upon conviction, however, a magistrate might properly infer a risk of flight from the consequences a defendant faced upon conviction. On the other hand, if Doe had no record, and had substantial ties to the community, these factors, when coupled with the legal pre sumption favoring his unsecured release, might lead a magistrate to allow him to sign an O.R. bond. As indicated, even if Doe had a prior record, only if the magistrate considered after a review of all available information that a financial bond was necessary to secure his attendance in Court, could the magistrate legally impose such a condition of pre-trial release.
Under the provisions of the 1966 Bail Reform Act, the Government was free to present evidence to the Court that indicated that the law’s presumption in favor of release was rebutted by other competent information. Again, an allegation that the defendant robber posed a danger to the community was not competent information pertinent to this issue. Usually, the Government would cite to the Court the strength of its evidence, the defendant’s record, if any, use of aliases, lack of ties to the community, and so forth, in asking for a high monetary bond. Absent a strong showing that evidence did exist which mandated such a bond, the vast majority of all Pre-Act federal defendants were released on an O.R. bond at their initial appearance.
Before ena ctment of The Comprehensive Crime Control Act of 1984, legal scholars debated the wisdom of The Bail Reform Act. Some argued that the terms of the Act were too liberal and that immediate release of all defendants engendered disrespect for the law and served to undercut the deterrent effect of the penal aspects of the criminal code. Many felt that the Act reflected a basic philosophical approach to crime, while laudatory in purpose, was nonetheless hopelessly unrealistic and, in fact, a contributing cause to the problem of crime in general. Others contended that the Act reflected basic notions of fairness and was consistent with the presumption of innocence that attaches to all criminal defendants at the time of arrest. Additionally, it was contended that through elimination of the common use of financial bonds, the Bail Reform Act effectively curtailed a means of invidious discrimination wherein money was used to establish a dual system of justice for the rich and the poor.< br>The record of The Bail Reform Act was somewhat mixed which probably is but a reflection of both its strengths and weaknesses. While the vast majority of all federal defendants released on bond pursuant to its provisions appeared for trial, the number of fugitives from justice was a persistent problem as many would “jump bail” rather than face prosecution. Additionally, public confidence in the law was often shaken when a defendant, while on release or bond from one offense, would commit yet another offense. Finally, and for law enforcement in particular, it was particularly distressing to see a person believed to be a criminal go free under The Bail Reform Act’s provisions without any consideration whatsoever of his possible danger to the community.
With the enactment of The Comprehensive Crime Control Act of 1984, the proverbial pendulum seems to have swung slightly to the right. Under its provisions, which are in effect today, federal magistrates are now free to cons ider whether a given defendant might pose a danger to the community should he be released on bail. Additionally, certain defendants are presumed to be a danger to the community and concomitantly not entitled to presumptive release. Although the ideological and the legal debates continue over the wisdom of the current law versus the past, whatever differences of opinion may exist, the fact is the law has changed. Thus, when examining what bail provisions will govern John Doe’s fate at his initial appearance with respect to his application for bail, we must turn to the amendments of the law created by The Bail Reform Act of 1984. All of the provisions of the new Act are specified in Title 18, United States Code Sections 3141-3151.
The principal provisions of The Bail Reform Act of 1984 are found in Section 3142 of Title 18 of The United States Code. As indicated therein, there are two release provisions under post Act law. First, a magistrate may and should order the relea se of a defendant on an O.R. bond if the facts of the case indicate that the defendant is not likely to flee the Court’s jurisdiction upon release and will not pose a physical danger to the community upon his release:
“The judicial officer shall order the pretrial release of the person on his 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 his 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.”
Secondly, and as specified in 3142(c), the magistrate may order that a secured appearance or surety bond be posted if either are necessary to assure the defendant’s appearance and the safety of the community. As was the case under The Bail Reform Act of 1966, the new Act also permits the magistrate to consider special conditions of release in either instance such as travel restrictions, pre-trial supervi sion, reporting requirements and the like. Whatever conditions, if any, are imposed, the litmus test of the new Act is that they be designed to assure the defendant’s appearance and the safety of other persons upon his release
Whether a defendant is released with conditions pursuant to 3142(c) or without, pursuant to 3142(b), the new Act requires that the Court impose certain mandatory conditions of release. In all cases where release is granted, a magistrate must impose a condition of release that the defendant will not violate any state or federal law while on release. Moreover, a magistrate must in any order of release specify for and advise the defendant of criminal penalties provided for by the Act which will be triggered by a violation of law while on pre-trial release. Thus, and pursuant to Section 3142(h), a magistrate must advise the defendant in a release order of the newly enacted provisions of Title 18 United States Code Section 3147 which provide that persons convicted of an offense while on pre-trial release shall be imprisoned for not less than two nor more than ten years if the new offense is a felony, or for not less than ninety days nor more than one year if the new offense is a misdemeanor.
Additionally, if released, a defendant will be advised of the criminal penalties which would apply if he failed to appear in Court as scheduled (18 U.S.C. §3146) and will be specifically admonished against and advised of the penalties provided for witness or jury tampering and obstruction of justice (18 U.S.C. §1503, 1510, 1512, 1513). Finally, the released defendant will be advised of the sanctions and penalties which could attach should he violate any condition of release (e.g. a travel or reporting requirement), which could include his immediate arrest, revocation of bond and prosecution for contempt of Court. These punitive provisions are contained in Section 3148 of the new Act.
As is apparent, the main difference in the rele ase provisions today as opposed to those previously in force is the permissible consideration by the magistrate of the defendant’s possible danger to the community when setting special conditions of bond. Even where a magistrate concludes that release is proper under the facts of the case before him, as a condition of release the magistrate may require that the defendant refrain from certain activity and submit himself to certain supervisory restraints that not only will be designed to assure his appearance at trial, but also assure that he will not pose a threat to the safety of others.