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Pretrial detention refers to detaining of an accused person in a criminal case before the trial has taken place, either because of a failure to post bail or due to denial of release under a pre-trial detention statute. Bail Reform Act of 1984 (18 USCS § 3142) authorizes a judge to detain a federal criminal defendant pending trial. This section allows a judge to detain a defendant if the judge determines that conditions exist that raise doubt as to whether the defendant will appear at trial or whether the defendant may cause harm to the community. However, in determining whether the accused constitutes a danger to the community, each case must be considered on its own merits and a court must determine whether the need to protect the community becomes so sufficiently compelling that detention is appropriate.
Pre trial detention of juveniles is also allowed. However the court shall not direct detention unless available alternatives to detention, including conditional release, would not be appropriate, and the court finds that unless the respondent is detained: there is a substantial probability that he or she will not appear in court on the return date; or there is a serious risk that he or she may before the return date commit an act which if committed by an adult would constitute a crime.
The following is an example of a State Statute (New York) on Pre trial detention of Juveniles:
NY CLS Family Ct Act § 320.5 . The initial appearance; release or detention
1. At the initial appearance, the court in its discretion may release the respondent or direct his detention.
2. Rules of court shall define permissible terms and conditions of release. The court may in its discretion release the respondent upon such terms and conditions as it deems appropriate. The respondent shall be given a written copy of any such terms and conditions. The court may modify or enlarge such terms and conditions at any time prior to the expiration of the respondent's release.
3. (a) The court shall not direct detention unless [fig 1] available alternatives to detention, including conditional release, would not be appropriate, and the court finds [fig 2] that unless the respondent is detained:
(i) there is a substantial probability that he or she will not appear in court on the return date; or
(ii) there is a serious risk that he or she may before the return date commit an act which if committed by an adult would constitute a crime.
(b) Any finding directing detention pursuant to paragraph (a) of this subdivision made by the court shall state the facts and reasons for such finding.
(c) If the court makes a finding that detention is necessary pursuant to subparagraphs (i) and (ii) of paragraph (a) of this subdivision, the court may consider, where applicable, as a condition of release, electronic monitoring of the respondent, if such electronic monitoring would significantly reduce the substantial probability that the respondent would not return to court on the return date, or the serious risk that the respondent may before the return date commit an act that if committed by an adult would constitute a crime.
4. At the initial appearance the presentment agency may introduce the respondent's previous delinquency findings entered by a family court. If the respondent has been fingerprinted for the current charge pursuant to section 306.1, the presentment agency may also introduce the fingerprint records maintained by the division of criminal justice services. The clerk of court and the probation service shall cooperate with the presentment agency in making available the appropriate records. At the conclusion of the initial appearance such fingerprint records shall be returned to the presentment agency and shall not be made a part of the court record.
5. Upon a finding of facts and reasons which support a detention order pursuant to subdivision three of this section, the court shall also determine and state in any order directing detention:
(a) whether the continuation of the respondent in the respondent's home would be contrary to the best interests of the respondent based upon, and limited to, the facts and circumstances available to the court at the time of the initial appearance; and
(b) where appropriate and consistent with the need for protection of the community, whether reasonable efforts were made prior to the date of the court appearance that resulted in the detention order issued in accordance with this section to prevent or eliminate the need for removal of the respondent from his or her home or, if the respondent had been removed from his or her home prior to the initial appearance, where appropriate and consistent with the need for protection of the community, whether reasonable efforts were made to make it possible for the respondent to safely return home.