By Dan Portnov
Last week convicted and newly accused sex offender Jeffrey Epstein was found injured in his cell in the Metropolitan Correctional Center (MCC), while awaiting his trial. This came shortly after his attorneys lost their bid to have him freed on bail or, in the alternative, kept under “house arrest” in his Manhattan mansion. Although we at Grand Jury Target do not have much sympathy for Epstein, there’s no question that incarceration, including pre-trial detention, is a difficult existence.
What are the alternatives? Without going too far down the prison reform rabbit hole, this post examines the different forms of pre- and post-sentencing types of release. If anything, we hope it will educate the reader on the range of outcomes that face a criminal defendant, both in the federal and state criminal justice systems.
The federal system, as well as all 50 states, have procedures that allow for the release of a defendant before and during trial. Pre-trial release is determined very early in the criminal justice process, usually at an initial appearance or arraignment.
In federal court, 18 U.S.C. § 3142 provides that pretrial release must be available unless there is a) a risk of flight or b) danger to the community. If either factor exists, the judge must still consider whether any release conditions will mitigate these risks. Conditions such as GPS monitoring, passport surrender, local travel restrictions, or hefty appearance bonds might suffice.
Pre-trial release may last through conviction, sentencing, and all the way up to when the Bureau of Prisons (BOP) schedules a sentenced defendant to report to one of its facilities to begin serving their sentence of incarceration. However, pre-trial release may be revoked for bad behavior, as in the case of Martin Shkreli who, while awaiting sentencing, made a Facebook post seemingly soliciting the assault of Hillary Clinton.
Bail and Bond
The difference between bail and bond comes from who pays the money to secure the defendant’s release from custody. If the defendant or her family pays, this is bail. If she then fails to appear at her next court hearing, she will forfeit this amount and be subject to detention (again).
Bond is when a third party, usually a bail bondsman, pays a certain amount, a fraction of the full bond, to secure the future appearance of the defendant. If the defendant disappears, the securing party forfeits the full of amount of bond.
In cases where the defendant poses little threat to her community or to abscond, an unsecured appearance bond may be allowed. This is where the defendant promises to pay a certain amount if she fails to appear at any subsequent hearing or trial. If she fails to do so, she may be both civilly and criminally liable.
Finally, in cases where the judge feels a defendant poses no threat under 18 U.S.C. § 3142, the defendant might be released on “personal recognizance,” nothing more than a promise to show up for the next court hearing.
Non-Incarceration Sentence Alternatives
Both federal and state justice systems have a variety of non-incarceration alternatives. These include:
- Drug treatment and community supervision
All 50 states and the District of Columbia have at least some form of drug courts or diversion program for non-violent, non-repeat drug offenders. Each state or locality has its own eligibility requirements, and a criminal judge will usually refer a defendant to the drug court. Defendants may be sentenced to drug treatment counseling, random testing, meetings with a probation officer and regular court reporting. Successful completion of the program may result in the dropping of charges and a clean record.
Unfortunately, the federal criminal justice system does not have a system akin to state drug courts and diversion programs for low-level drug offenders.
Probation is a common non-incarceration alternative in both the state and federal systems. While the offender remains free and is allowed to live in her community, a sentence of probation may last for several years and could include many stringent conditions. Such conditions include regular meetings with a probation officer, curfews, random drug testing, maintaining continuous employment and participating in counseling. Failure to meet the conditions of probation may land the offender in prison to serve out the remainder of the original probation term.
- Home confinement
…is just what it sounds like. The offender is required to stay in their home, report to a probation officer, submit to electronic monitoring and drug testing, etc. Home confinement is available in both the federal and state criminal justice systems. The 2019 First Step Act expanded the availability of home confinement in the federal system, much to the approval of prison reform advocates.
- Fines and restitution
Very common in white collar cases, fines and restitution can, in some cases, help a defendant avoid incarceration. Nearly all offenses require the offender to pay supervision fees, court costs and fixed fines. Economic offenses – think fraud or insider trading – very often involve orders of restitution. It goes a long way when a defendant is able to make her victims whole by restoring their financial losses, as well as paying fines.
In conclusion, avoiding pre-trial detention is not only good for a defendant’s physical and emotional health, it aids immeasurably in their own defense effort. Staying out of prison after sentencing may be a bit more difficult, but not impossible. If you have any questions about pre-trial detention or how we can assist white collar defendants, please get in touch.