Pretrial Release & Detention

18 U.S.C. § 3142 maintains that a person who has been charged with an offense can either be released on personal recognizance or unsecured appearance bond, released on a set condition or combination of conditions, temporarily detained, or detained. The Adam Walsh Child Protection and Safety Act of 2006 introduced considerations specific to charges of child pornography and other offenses involving minor victims.[1]

[1] Adam Walsh Child Protection and Safety Act of 2006,Title II, Sec. 216: Improvements to the Bail Reform Act to Address Sex Crimes and Other Matters.

18 U.S.C. § 3142(b) outlines the conditions under which a person can be released on personal recognizance or unsecured appearance bond. In this case, a person is released under the condition that they do not commit a crime during their release and provide a DNA sample. However, if 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,” they will explore alternative possibilities for release or detention.[2] For cases involving child pornography,[3] or a failure to register as a sex offender,[4] any release order must at a minimum contain:

1. Electronic monitoring;
2. Specified restrictions on personal associations, place of living, or travel;
3. Avoidance of all contact with an alleged victim and potential witnesses;
4. Reporting on a regular basis to a designated law enforcement/pretrial services/other agency;
5. Compliance with a specified curfew; and
6. Refrain from possessing a firearm, destructive device, or other dangerous weapon.[5]

[2] 18 U.S.C. § 3142(b)

[3] § 2251, § 2251A, § 2252(a)(1), § 2252(a)(2), § 2252(a)(2), § 2252(a)(3), § 2252A(a)(1), § 2252A(a)(2), § 2252A(a)(3), § 2252A(a)(4), § 2260, § 2421, § 2422, § 2423, § 2425

[4] § 2250

[5] 18 U.S.C. § 3142(c)(1)(B)

18 U.S.C. § 3142(e)(2) establishes a rebuttable presumption that the person cannot be safely released under any circumstances in certain cases involving a minor victim. The two scenarios in which such a presumption arises are as follows:

In cases involving a minor victim or a failure to register as a sex offender, there is a rebuttable presumption that no condition or combination of conditions with reasonably assure the safety of any other person and the community such that:

1. The person has been convicted of a Federal offense, or a State or local offense that would have been an offense involving a minor victim or a failure to register as a sex offender if a circumstance giving rise to Federal jurisdiction had existed;
2. The offense was committed while the person was on release pending trial for a Federal, State, or local offense; and
3. Less than five years have passed from the date of conviction, or the release of the person from imprisonment, for the aforementioned offense (whichever is later).

If there is probable cause to believe that the person committed an offense involving a minor victim under child pornography or related offenses, there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the person and the safety of the community.

Furthermore, when determining the conditions of release, the judicial officer is instructed to consider the nature and circumstances of the charged offense, including whether it involves a minor victim.[6]

[6] 18 U.S.C. § 3142(g)(1)

There is some disagreement as to whether the Adam Walsh Child Protection and Safety Act (AWA) amendments to the Bail Reform Act,[7] which mandates the imposition of home detention and electronic monitoring as conditions of release for those charged with child pornography, violates Eighth Amendment protection against the imposition of excessive release conditions, Fifth Amendment right to procedural due process, and/or the separation of powers doctrine. This matter has resulted in mixed rulings at the district court level.[8] Multiple academic articles have argued in favor of the law’s unconstitutionality.[9]

At the appellate level, the Ninth Circuit found that the Walsh Act’s mandatory release provisions were not unconstitutional on their face because the defendant failed to establish that the Act’s mandatory release provisions were not inappropriate for all defendants charged with the knowing receipt of child pornography, and establishing that no set of circumstances exists under which the legislation would be valid is the required burden for declaring legislation unconstitutional.[10]

The Eighth Circuit likewise found that the Walsh Act’s mandating electronic monitoring and specified curfew for those pending child pornography trial did not violate Due Process or Excessive Bail Clauses because there were some cases in which the the mandates of the provision would be constitutionally valid and it does not deprive defendants of a detention hearing or an individualized determination whether detention or release would be appropriate.[11]

[7] Adam Walsh Child Protection and Safety Act of 2006,Title II, Sec. 216: Improvements to the Bail Reform Act to Address Sex Crimes and Other Matters.

[8] United States v. Karper, 847 F. Supp. 2d 350 (N.D.N.Y. 2011); United States v. Campbell, 309 F. Supp. 3d 738 (D.S.D. 2018), aff’d, No. 18-1578, 2018 WL 11392845 (8th Cir. May 4, 2018); United States v. Polouizzi, 697 F. Supp. 2d 381 (E.D.N.Y. 2010); United States v. Cossey, 637 F. Supp. 2d 881 (D. Mont. 2009); United States v. Merritt, 612 F. Supp. 2d 1074 (D. Neb. 2009), supplemented, No. 4:09 CR 3009, 2009 WL 1543306 (D. Neb. May 29, 2009); United States v. Rueb, 612 F. Supp. 2d 1068 (D. Neb. 2009), adhered to, No. 4:09 CR 3006, 2009 WL 1532502 (D. Neb. May 29, 2009); United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008); United States v. Gardner, 523 F. Supp. 2d 1025 (N.D. Cal. 2007); United States v. Blaser, 390 F. Supp. 3d 1306 (D. Kan. 2019)

[9] Michael R. Handler, A Law of Passion, Not of Principle, Nor Even Purpose: A Call to Repeal or Revise the Adam Walsh Act Amendments to the Bail Reform Act of 1984, 101 J. Crim. L. & Criminology 279 (2013); Bryan Dearinger, The Mandatory Pretrial Release Provision of the Adam Walsh Act Amendments: How “Mandatory” Is It, and Is It Constitutional?, 85 St John’s Law Review 1343 (2011).

[10] United States v. Peeples, 630 F.3d 1136 (9th Cir. 2010)

[11] United States v. Stephens, 594 F.3d 1033 (8th Cir. 2010)

In cases involving child pornography, there is a statutory presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.”[12]

This presumption is subject to rebuttal by the defendant, who must “introduce some evidence contrary to the presumed fact.”[13] However, even after a defendant introduces rebuttal evidence, the presumption is still weighed alongside other factors to be considered when deciding whether to release a defendant.[14] This presumption does not fall under the “bursting bubble” doctrine, under which if “a presumption vanishes upon the introduction of evidence which would support a finding of the nonexistence of the presumed fact” that the defendant is a flight risk or a danger to the community.[15]

However, though the presumption continues to exist, “the government retains the ultimate burden of persuasion by the lesser standard of a preponderance of the evidence that the defendant presents a risk of flight.”[16] If the defendant produces rebuttal evidence, “the burden of persuasion shifts to the government to prove that there is no condition or combination of conditions that will reasonably assure the appearance of the defendant and protect the safety of the community.”[17]

Even when the weight of the evidence against a defendant is strong, this “is the least important of the various [§ 3142(g)] factors.”[18] This is because “the statute neither requires nor permits a pretrial determination that a person is guilty,” and the court only considers evidence to the extent that it affects the likelihood that the defendant is a flight risk or a danger.[19]

Consideration of whether a defendant has successfully overcome this presumption is largely based on an individual, case-by-case evaluation based on the defendant’s unique circumstances and background. The following are examples of successful evidence for rebuttal, resulting in the defendants’ pretrial release.

United States v. Parmer, 613 F. Supp. 3d 1139, 1141 (N.D. Cal. 2020): The defendant now has access to a residential treatment facility, limiting the risk of drug use and roommate conflicts, circumstances which played a significant role in his prior infractions. The defendant avoided disciplinary issues at the facility over the past eight months. The judge placed restrictions on the defendant’s internet use, reducing the likelihood of his engaging in the distribution of online child pornography. Finally, the defendant’s trial was imminent, and COVID-related restrictions on in-person visits with counsel was problematic for trial preparation.

United States v. Gilbert, 511 F. Supp. 3d 669 (E.D. Pa. 2021): The defendant’s medical conditions placed him at an increased risk to COVID, he had substantial ties to the community, he had no prior criminal record or history of violence, and his parents were willing to house and monitor him in their child-free home. These facts in conjunction with strict bail conditions, including home confinement with GPS tracking, prohibited internet access, and prohibited contact with minors, led to his overcoming of the statutory presumption.

United States v. Cross, 389 F. Supp. 3d 140 (D. Mass. 2019): The defendant’s lack of a criminal record, community ties, stable residence, steady employment (worked at the same job for ten years), strong family support, no history of drug addiction, cooperation with the government in its prosecution of another individual, agreement to seek treatment, and Probation’s supportive recommendation sufficiently rebuts the presumption of detention. The government failed to meet its burden of proving that no condition or combination of conditions will reasonably ensure community safety, and the defendant was subject to very strict release conditions.

[12] 18 U.S.C. § 3142(e)

[13] United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991); United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991)

[14] United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991)

[15] https://www.law.cornell.edu/rules/fre/rule_301

[16] United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)

[17] United States v. Cross, 389 F. Supp. 3d 140, 142 (D. Mass. 2019)

[18] United States v. Hir, 517 F.3d 1081, 1090 (9th Cir. 2008)

[19] United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985)