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Department of Justice Publishes Report on Federal Pretrial Release

In November 2012, the U.S. Department of Justice's Bureau of Justice statistics published a report on pretrial release of criminal defendants in federal district courts between 2008 and 2010. The report analyzed how many defendants were released, the type of release, the conditions of release and how much misconduct they committed while on pretrial release.

The report covered the period including all of Fiscal Years 2008, 2009 and 2010. During that period, there were 283,358 criminal defendants in the federal district courts. 36% of those defendants were released prior to trial.

Prior to 1966, most federal criminal defendant who were released pretrial were required to post a financial bond by either using their own money or property as a guarantee or paying a bondsman a percentage of the bond to act as bail surety. The Bail Reform Acts of 1966 and 1982 established four possible outcomes when a federal criminal defendant first appeared before a judge: (1) release on personal recognizance or unsecured bond; (2) release subject to court-imposed conditions; (3) temporary detention to allow deportation; and (4) detention pending the outcome of a detention hearing. "At a detention hearing, the government is required by the act to prove by clear and convincing evidence that no condition of release would reasonably ensure that the defendant would appear for trial and not pose a risk to the community."

During the report period, 36% of federal criminal defendants were released pretrial. The type of criminal case pending against the defendant made a difference in the probability of being released. The percentages of pretrial release ranged from a high of 71% for defendants charged with property crimes to a low of 12% for those charged with criminal immigration violations.

Of those federal criminal defendants released pretrial, 19% committed some type of misconduct during the release period, 90% of the misconduct involved technical violations of conditions imposed by the court. 4% of released defendants committed new offenses during the release period. and 1% missed a court appearance.

71% of persons whose charges involved property crimes were released pretrial, compared to 65% who were charged with public-order crimes, 38% charged with drug offenses, 32% charged with weapons violations, 30% charged with crimes of violence and 12% with criminal immigration charges. Defendants charged with violent offenses were less likely to be released at initial judicial appearance (13%) than at a subsequent court event (16%). Likewise, 20% of defendants charged with drug crimes were released after detention while only 18% were released at initial appearance.

Defendants charged with public-order offenses or property crimes were at least four times more likely to be released at an initial appearance than after detention. For public-order offenses, 65% were released before detention and 13% after some detention while 59% of those charged with property crimes were released at initial appearance compared to 12% released after detention.

The federal courts allowed pretrial release for 55% of U.S. citizens, 43% of legal aliens and only 10% of those persons not legally in the country. Two-thirds of those released were released at the time of their initial appearance. The remaining third were initially detained, but released during subsequent court proceedings. 91% of the defendants who were not released were held on court-ordered detention or were unable to meet conditions imposed by the court. 9% were unable to meet financial obligations for their bond.

Almost three-quarters (71%) of the federal criminal defendants who were released pretrial were released using nonfinancial methods such as personal recognizance or unsecured bond while 12% were released on a deposit bond, 8% on surety bond and 7% on collateral bond. Courts imposed conditions--such as travel restrictions, mandatory substance abuse treatment, weapons prohibitions or employment requirements--on 79% of those released pretrial.

A little over half (51%) of federal criminal defendants with no prior arrest history were released pretrial. About a third (34%) of those with 2 to 4 prior arrests and 21% of those with 10 or more prior arrests were released.

Federal courts released a lower percentage (36%) of criminal defendants than the state courts of the 75 most populous counties in the nation

(58%). This is partially due to the federal policy of not releasing defendants NIto are in the country illegally and the fact that criminal immigration cases comprise 35% of the federal criminal docket, but 0% of the state docket. Of the defendants detained in those counties, 86% were held because of inability to meet the financial obligations of their bonds.

"n.‘ of federal pretrial releasees had conditions imposed on their release. This included 95% of those charged with weapon offenses, 92% of drug defendants, 90% of violent offense defendants, 80% of those awaiting disposition of property charges and 79% of public-order defendants. The most common conditions were travel restrictions, which were imposed on 99% of all released defendants, followed by substance abuse testing or treatment (72%), weapons restrictions (62%), employment conditions (49%), home detention or electronic monitoring (32%) and victim contact prohibitions (29%).

The average length of detention following booking rose from 112 days in 2008 to 121 days in 2010. The greatest increases were for immigration and drug defendants while the average detention for property defendants fell slightly.

65% of female defendants were released compared to 31% of males. Defendants 17 or younger (50%) were released more often than those 18-19 (37%), 20-29 (31%), 30-39 (31%) or 40 or older (47%). White defendants (65%) were more likely to be released pretrial than blacks (43%), Hispanics (20%), or Native Americans (54%), but less likely to be released than Asians (66%).

Pretrial releases according to the economic circumstances of the defendant were not reported. However, it can be expected that the rich rarely see jail while the poor often remain there for long periods.

Source: Pretrial Release and Misconduct in Federal District Courts, 2008-2010, Report No. NCJ 239243, available at

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