Federal Bail Reform Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 9065 To amend title 18, United States Code, to amend provisions relating to the release or detention of a defendant pending trial, sentence, or appeal, and for other purposes. IN THE HOUSE OF REPRESENTATIVES DECEMBER 31, 2020 Mr. NADLER introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to amend provisions relating to the release or detention of a defendant pend- ing trial, sentence, or appeal, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Federal Bail Reform 4 Act of 2020’’. 5 SEC. 2. RELEASE OR DETENTION OF A DEFENDANT PEND- 6 ING SENTENCE OR APPEAL. 7 Section 3143 of title 18, United States Code, is 8 amended— 9 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 9065 IH (1) in subsection (a)— 1 (A) by striking paragraph (1) and insert- 2 ing the following: ‘‘A person who has been 3 found guilty of an offense and who is awaiting 4 imposition or execution of sentence is entitled 5 to a presumption of release if, at the time of 6 the guilt determination, the person is on release 7 and performing satisfactorily. The person is 8 also entitled to a presumption that all condi- 9 tions of release continue unchanged. If the at- 10 torney for the Government moves to detain the 11 person, the person may only be detained after 12 consideration of the factors listed in section 13 3142(f)(5).’’; and 14 (B) by striking paragraph (2); 15 (2) in subsection (b)— 16 (A) in paragraph (1), in the matter pre- 17 ceding subparagraph (A), by striking ‘‘Except 18 as provided in paragraph (2), the’’ and insert- 19 ing ‘‘The’’; 20 (B) in paragraph (1), by striking subpara- 21 graph (A), and inserting the following: 22 ‘‘(A) by a preponderance of the evidence 23 that release does not pose a high risk of inten- 24 tional non-appearance in court or a specific and 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 9065 IH substantial risk that the person will cause bod- 1 ily injury or use violent force against the person 2 of another if released under section 3142(b) or 3 (c); and’’; 4 (C) in paragraph (1)(B)(i), by striking 5 ‘‘reversal,’’ and inserting ‘‘reversal of the con- 6 viction,’’; 7 (D) by striking paragraph (2), and insert- 8 ing the following: 9 ‘‘(3) The person may file a motion requesting 10 that a judge other than the trial judge hear the mo- 11 tion for release if they are moving under paragraph 12 (1)(B)(i) or (1)(B)(ii).’’; and 13 (E) in the matter preceding paragraph 14 (2)— 15 (i) by striking ‘‘If the judicial officer 16 makes such findings’’ and inserting the fol- 17 lowing: 18 ‘‘(2) If the judicial officer makes such find- 19 ings’’; and 20 (ii) by striking ‘‘subparagraph 21 (B)(iv)’’ and inserting ‘‘paragraph 22 (1)(B)(iv)’’; and 23 (3) by striking subsection (c), and inserting the 24 following: 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 9065 IH ‘‘(c) RELEASE OR DETENTION PENDING APPEAL BY 1 THE GOVERNMENT.—In a case in which an appeal of a 2 dispositive motion has been taken by the United States 3 under section 3731, the person is entitled to a presump- 4 tion of release under section 3142(b) or (c), unless it is 5 clearly shown that there are exceptional reasons why such 6 person’s detention would be appropriate. For cases in 7 which an appeal of a person’s sentence has been taken 8 by the United States under section 3742, if the person 9 is already on release and performing satisfactorily, the 10 person is entitled to a presumption that all conditions of 11 release continue unchanged; if the person is already de- 12 tained, the judicial officer shall— 13 ‘‘(1) if the person has been sentenced to a term 14 of imprisonment of 120 months or more, continue 15 the order of detention; or 16 ‘‘(2) if the person has been sentenced to a term 17 of imprisonment of less than 120 months, release or 18 detain the person under section 3142.’’. 19 SEC. 3. RELEASE OR DETENTION OF A DEFENDANT PEND- 20 ING TRIAL. 21 Section 3142 of title 18, United States Code, is 22 amended as follows: 23 (1) By striking subsection (a) and inserting the 24 following: 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 9065 IH ‘‘(a) PRESUMPTION OF INNOCENCE.—Nothing in this 1 section shall be construed as modifying or limiting the pre- 2 sumption of innocence.’’. 3 (2) By striking subsection (b) and inserting the 4 following: 5 ‘‘(b) PRESUMPTION OF RELEASE WITHOUT CONDI- 6 TIONS.—In all cases, the judicial officer shall apply a pre- 7 sumption of release on personal recognizance subject to 8 subsections (c), (e), and (f).’’. 9 (3) By striking subsection (c) and inserting the 10 following: 11 ‘‘(c) IMPOSING CONDITIONS OF RELEASE.— 12 ‘‘(1) If at the initial appearance hearing or the 13 pretrial release hearing the judicial officer deter- 14 mines by a preponderance of the evidence, based on 15 individualized facts, that the person’s release on per- 16 sonal recognizance under subsection (b) creates a 17 high risk of intentional non-appearance in court, or 18 a specific and substantial risk that the person will 19 cause bodily injury or use violent force against the 20 person of another, and the judicial officer deter- 21 mines that a combination of conditions under this 22 subsection would reasonably mitigate any risk posed 23 by the person, such judicial officer shall nevertheless 24 order the pretrial release of the person— 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 9065 IH ‘‘(A) subject to the condition that the per- 1 son not commit a Federal, State, or local crime 2 during the period of release; and 3 ‘‘(B) subject to the least restrictive further 4 condition or combination of conditions that 5 could reasonably mitigate the risk identified, 6 which may include the condition that the per- 7 son— 8 ‘‘(i) remain in the custody of a des- 9 ignated person, who agrees to assume su- 10 pervision and to report any violation of a 11 release condition to the court; 12 ‘‘(ii) maintain employment, or, if un- 13 employed, actively seek employment; 14 ‘‘(iii) maintain or commence an edu- 15 cational program; 16 ‘‘(iv) abide by specified restrictions on 17 personal associations, place of abode, or 18 travel; 19 ‘‘(v) avoid all contact with an alleged 20 victim of the crime and with any potential 21 witness who may testify concerning the of- 22 fense; 23 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 9065 IH ‘‘(vi) report on a regular basis to a 1 designated law enforcement agency, pre- 2 trial services agency, or other agency; 3 ‘‘(vii) comply with a specified curfew; 4 ‘‘(viii) refrain from possessing a fire- 5 arm, destructive device, or other dangerous 6 weapon; 7 ‘‘(ix) refrain from excessive use of al- 8 cohol, or any use of a narcotic drug or 9 other controlled substance, as defined in 10 section 102 of the Controlled Substances 11 Act (21 U.S.C. 802), without a prescrip- 12 tion by a licensed medical practitioner; 13 ‘‘(x) undergo available medical, psy- 14 chological, or psychiatric treatment, includ- 15 ing treatment for drug or alcohol depend- 16 ency, and remain in a specified institution 17 if required for that purpose; 18 ‘‘(xi) return to custody for specified 19 hours following release for employment, 20 schooling, or other limited purposes; and 21 ‘‘(xii) satisfy any other condition that 22 is necessary to avoid a high risk of inten- 23 tional nonappearance in court, or a specific 24 and substantial risk that the person will 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 9065 IH cause bodily injury or use violent force 1 against the person of another. 2 ‘‘(2) In any case where the person is charged 3 with an offense that involves a minor victim under 4 section 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 5 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 6 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 7 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425, or 8 a failure to register offense under section 2250, ex- 9 cluding receipt of child pornography, any release 10 order shall contain a condition of electronic moni- 11 toring and each of the conditions specified at clauses 12 (iv) through (viii) of paragraph (1)(B). 13 ‘‘(3) The judicial officer may not impose any 14 condition of release that imposes a financial burden 15 on the person released. Prohibited financial condi- 16 tions include requiring payment of cash bail, requir- 17 ing a secured bond, requiring proof of ability to pay 18 an unsecured bond, requiring execution of a bail 19 bond or corporate surety bond, requiring a solvent 20 surety to co-sign a secured or unsecured bond, and 21 requiring posting of real property. 22 ‘‘(4) Any person who is deemed financially un- 23 able to obtain adequate representation and qualifies 24 for appointed counsel pursuant to other provisions of 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 9065 IH this section or section 3006A is not required to pay 1 any costs associated with pretrial release or pretrial 2 supervision including costs of pretrial supervision, 3 electronic monitoring, global positioning systems 4 monitoring, medical, psychological, or psychiatric 5 treatment, and costs associated with any of the 6 other conditions of release in this subsection. 7 ‘‘(5) To facilitate appearance in court and ad- 8 herence to these conditions of release, the judicial of- 9 ficer shall instruct United States Pretrial Services to 10 provide individual court reminders, such as remind- 11 ers via phone call or two-way text message. 12 ‘‘(6) The judicial officer may at any time 13 amend the release order to impose additional or dif- 14 ferent conditions of release. Before the conditions 15 are modified, the person is entitled to notice of the 16 proposed modification and an opportunity to be 17 heard.’’. 18 (4) By striking subsection (d) and inserting the 19 following: 20 ‘‘(d) NO SHACKLING.—No person shall be shackled 21 or otherwise physically restrained when appearing in court 22 for any hearing relating to pretrial release or detention, 23 unless the judicial officer makes a finding by clear and 24 convincing evidence, in writing or on the record, based on 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 9065 IH individualized, case-specific reasons, that the person poses 1 an imminent danger to any person in the courtroom.’’. 2 (5) By striking subsection (e) and inserting the 3 following: 4 ‘‘(e) INITIAL APPEARANCE HEARING.— 5 ‘‘(1) IN GENERAL AND TIMING.—In any initial 6 appearance before a judicial officer (but in no event 7 later than 48 hours after entering into custody), the 8 judicial officer shall conduct an initial appearance 9 hearing for purposes of advising the person of the 10 criminal complaint or information, conducting ar- 11 raignment (as appropriate), allowing consultation 12 with and appointment of counsel, and determining 13 whether the judicial officer should release or detain 14 the person. The judicial officer shall provisionally 15 appoint counsel to represent any person eligible for 16 representation under section 3006A (without regard 17 to any financial ability to secure representation) by 18 not later than the beginning of the initial appear- 19 ance hearing if that person is not otherwise rep- 20 resented by counsel. If at the initial appearance 21 hearing the person is temporarily detained under 22 paragraph (3), the judicial officer shall immediately 23 thereafter, at the same initial appearance, conduct a 24 pretrial release hearing under subsection (f), unless 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 9065 IH the judicial officer grants a continuance sought by 1 the person or the attorney for the Government under 2 paragraph (1) of such subsection. 3 ‘‘(2) PRESUMPTION OF RELEASE WITHOUT 4 CONDITIONS.—At the initial appearance hearing, the 5 judicial officer shall order the pretrial release of the 6 person on personal recognizance under subsection 7 (b) unless the judicial officer determines that— 8 ‘‘(A) a condition or combination of condi- 9 tions is required under subsection (c); or 10 ‘‘(B) temporary detention is— 11 ‘‘(i) mandatory under paragraph 12 (3)(A); 13 ‘‘(ii) appropriate under paragraph 14 (3)(B); or 15 ‘‘(iii) required under paragraph (4). 16 ‘‘(3) EXCEPTIONS TO IMMEDIATE RELEASE.— 17 At the initial appearance hearing, the judicial officer 18 may temporarily detain the person until the pretrial 19 release hearing only in accordance with the fol- 20 lowing: 21 ‘‘(A) MANDATORY TEMPORARY DETENTION 22 PENDING A PRETRIAL RELEASE HEARING.—Ex- 23 cept as provided in subparagraph (D), the judi- 24 cial officer shall order temporary detention and 25 VerDate Sep 11 2014 22:10 Jan 26, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H9065.IH H9065 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 9065 IH shall hold a pretrial release hearing under sub- 1 section (f) when the person is charged with one 2 of the following offenses: 3 ‘‘(i) OFFENSES INVOLVING A MINOR 4 VICTIM.—A violation of section 1591, or 5 any felony that involves a minor victim. 6 ‘‘(ii) CERTAIN TERRORISM OF- 7 FENSES.—An offense listed in section 8 2332b(g)(5)(B) for which a maximum 9 term of imprisonment of 10 years or more 10 is prescribed. 11 ‘‘(iii) OTHER SERIOUS OFFENSES.— 12 An offense for which the maximum sen- 13 tence is life imprisonment or death, other 14 than an offense listed in subparagraph 15 (B)(i) or (B)(ii) for which the maximum 16 sentence is life imprisonment. 17 ‘‘(iv) CERTAIN REPEAT OFFENSES.— 18 Any felony if the per [Text truncated for display. 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