Don’t you just hate it when you walk into that initial appearance and the government hands you that piece of paper titled, “Notice of Request for Detention”? And isn’t it especially annoying that they do it in what seems like 90% of the cases? And you know how there’s two boxes for them to choose whether to check? One for detention based on flight risk? And the other for detention based on danger to the community? And they check both boxes in 99% of those 90% of the cases?

In fact, it’s not only annoying; it reflects a fundamental misunderstanding of the detention provisions of the Bail Reform Act. In two different ways.

First, this pattern reflects a gross misunderstanding of the frequency with which detention without bail was to be used. There’s some very interesting commentary on the Bail Reform Act in the Senate Report on the Comprehensive Crime Control Act, of which the Bail Reform Act was one part. The report is reprinted at 1984 U.S.C.C.A.N. 3184 and at 1983 WL 25404 and has some language that it’s worth reminding prosecutors and judges about. At page 3189, for example, it says:

There is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the power to deny release pending trial.

(Emphasis added.) Then on the next page, the report speaks of “a preventive detention statute that is appropriately narrow in scope.” (Emphasis added.) And on the other side of the coin, the report suggests that not just some sort of bond, but a personal recognizance or unsecured appearance bond, is appropriate in the majority of cases. At page 3195 of the U.S.C.C.A.N. republication, the Senate report states:

The judicial officer . . . may release the person on his personal recognizance, or upon his execution of an unsecured appearance bond, pursuant to section 3142(b), he may release the person subject to one or more of the conditions listed in subsection (c); he may, if the arrested person is already on a form of conditional release or may be subject to deportation or exclusion order, temporarily detained [sic] the person pursuant to subsection (d); or he may pursuant to subsection (e), order the detention of the person. The first two forms of pretrial release are like those now set forth in the [old] Bail Reform Act. [Footnote citing former 18 U.S.C. § 3146.] It is anticipated that they will continue to be appropriate for the majority of defendants.

In sum, the legislative history suggests two things. First, it’s only a very small, limited group of defendants who should be detained without any bond at all. Second, it’s personal recognizance and unsecured bonds that are favored. Related to this, don’t forget 18 U.S.C. § 3142(c)(1)(B) which instructs courts to impose “the least restrictive . . . condition or combination of conditions, that . . . will reasonably assure the appearance of the person as required and the safety of any other person or the community.”

Now one could argue that the Senate report isn’t controlling and who’s to say our district isn’t different and there’s nothing in the statute itself that says how often detention can be used. At least I guess one could argue that. But the seeking of detention in almost every case based on dangerousness in addition to flight risk does flatly violate the statute. The type of cases in which detention can be sought based on danger to community arelimited by the statute. And it’s a limitation the government completely ignores in its bail and detention practice.

The statutory language isn’t a model of clarity, but the case law interpreting it – including Ninth Circuit case law – is clear. The relevant statutory provision is 18 U.S.C. § 3142(f), which limits when the government can even ask for detention. Subsection (f)(1) lists five relatively narrow categories of crimes – the most important of which are drug offenses, crimes of violence, and offenses involving firearms or a minor victim – in which the government can ask for detention no matter what. Subsection (f)(2) then allows the government to ask for detention in other cases only when there is “a serious risk that such person will flee” or “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.” Notably absent from subsection (f)(2) is any right to ask for detention based on some more general danger to the community.

It logically follows from this that you can’t detain based on danger to the community in cases not within the categories listed in subsection (f)(1). Because how could a court detain on a ground that doesn’t let the government ask in the first place? While this isn’t expressly stated in the statute, multiple circuits outside the Ninth Circuit have so reasoned for more than 20 years.See United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992); United States v. Ploof, 851 F.2d 7, 10-11 (1st Cir. 1988);United States v. Himler, 797 F.2d 156, 160 (3rd Cir. 1986). And the Ninth Circuit followed these cases almost 10 years ago inUnited States v. Twine, 344 F.3d 987 (9th Cir. 2003). I did have one case – and I’m assuming there may be others – in which the government has argued these cases don’t mean what they say, but the government is engaging in an embarrassing stretch when it makes that argument. Attached here, here, and here are a government brief in one of my cases, my reply, and – far more authoritative than my reply – Judge Margaret M. Morrow’s order rejecting the government’s argument because it “contradictsTwine’s clear holding.”

To sum up this post, detention practice by the government in our district – and, unfortunately, in some instances, the rulings of the judges they occasionally persuade (which don’t include Judge Morrow) – reflects a fundamental misunderstanding of what was intended and what is allowed by the preventive detention provisions of the Bail Reform Act. So, two things you should always have with you when you go to court to address this misunderstanding are the Senate report on the Bail Reform Act – or at least the portions quoted above – and the Twine case.