The release and detention of defendants pending judicial proceedings is governed by the Due Process Clause of the Fifth Amendment, the Excessive Bail Clause of the Eighth Amendment, and the Bail Reform Act of 1984. The Bail Reform Act of 1984 provides procedures to detain a dangerous offender, as well as an offender who is likely to flee pending trial or appeal. See United States v. Salerno, 481 U.S. 739 (1987).

As with all prosecutorial decisions, a determination as to whether to advocate for detention, or instead to advocate for or agree to a particular set of release conditions, should be case- and defendant-specific. See JM 9-27.110. There are many cases in which detention pending trial or a hearing is warranted to protect the public and/or to ensure that the defendant appears as required. Prosecutors should request a detention hearing and seek detention in such cases, as authorized by statute, see 18 U.S.C. §§ 3142(e), (f)(1)-(2), and do so vigorously, consistent with the Constitution, the Bail Reform Act, case law, and our obligation to the public. There also are cases in which detention is not warranted. Prosecutors should not seek detention merely because the Bail Reform Act permits such an argument to be made or presumes that detention, based on the charges, is appropriate (as it does for many drug charges, see 18 U.S.C. § 3142(e)(3)). Nor should prosecutors seek detention based solely on the fact that the alleged violation is of the conditions of post-conviction supervision. Rather, a weighing of all the facts and circumstances, including but not limited to what charges or violations a defendant presently faces, and the strength of the evidence in support of those charges or violations, is required. In all cases, prosecutors should continue to be aware that, where applicable, victims have the right to be reasonably heard at any public proceeding involving release. See 18 U.S.C. § 3771(a)(4); Fed. R. Crim. P. 60(a)(3); see also Attorney General Guidelines for Victim and Witness Assistance.

[updated January 2023]