TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 46, N.D.R.Crim.P., Release from Custody
The Governors Task Force on Violent and Sexual Offenders has offered a proposed amendment to Rule 46 that would add a detention hearing requirement in some cases. The proposed amendment is based on language in 18 U.S.C. 3142, the federal Bail Reform Act. A copy of Rule 46 containing the proposed new language is attached, as is a copy of 18 U.S.C. 3142.
Judge Steven McCullough has submitted a comment on Rule 46 that is relevant to the detention hearing proposal. Judge McCullough's comment is attached. He suggests that Rule 46's existing preventive detention language is unconstitutional under art. 1, § 11 of the North Dakota Constitution and that the language should be reviewed by the Committee.
The Committee discussed Rule 46's existing preventive detention language over the course of three meetings (September 1993, January and April 1994). The minutes of the Committee's discussions are attached. In January 1994, the Committee rejected the language on a 6-7 vote, but in April 1994 the Committee approved adding preventive detention language to the rule, apparently on a voice vote. The language became part of the rule effective January 1, 1995.
During the course of the Committee's 1993-1994 discussions on preventive detention, opposing viewpoints emerged. On the one hand, committee members pointed out that preventive detention was probably unconstitutional under art. 1, § 11. On the other hand, committee members suggested that public safety was a legitimate concern and something that judges were already taking into account when making release decisions and imposing release conditions.