TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 46, N.D.R.Crim.P., Release from Custody
Judge McLees recently pointed out a problem with subdivision (b) of this rule. The language of the subdivision is not clear regarding the procedure to be followed when a person seeks amendment of conditions of release.
The subdivision reads as follows:
"A person who is detained, or whose release on a condition requiring such person to return to custody after specified hours is continued, after review of the person's application pursuant to Subsection (a)(1)(4) or (a)(1)(5) by a magistrate other than a magistrate of the trial court in the jurisdiction in which the offense was committed, may apply to the latter magistrate to amend the order. The motion shall be determined promptly."
This subdivision was never part of Fed.R.Crim.P. 46. Instead, it is a unique provision devised by the original North Dakota Criminal Rules Committee. It was based on the language of a version of 18 U.S.C. 3147 (a) that was repealed in 1984.
The language of repealed 18 U.S.C. 3147 (a) is relatively clear:
"A person who is detained, or whose release on a condition requiring him to return to custody after specified hours is continued, after review of his application pursuant to section 3146 (d) or section 3146 (e) by a judicial officer, other than a judge of the court having original jurisdiction over the offense with which he is charged or a judge of a United States court of appeals or a Justice of the Supreme Court, may move the court having original jurisdiction over the offense with which he is charged to amend the order. Said motion shall be determined promptly."
This federal provision seems to allow an accused who had release conditions imposed by an officer other than the trial judge to petition the trial judge for an amendment of the release order.
N.D.R.Crim.P. 46 (b) is not as clear as the repealed federal statute it was based on. In drafting a rule that excluded the unique federal provisions contained in 18 U.S.C. 3147 (a), something seems to have been lost. In using the term "the latter magistrate," the language of N.D.R.Crim.P. 46(b) seems to imply involvement of two magistrates in a review decision--however, only one magistrate is specified in the text.
The original explanatory note for N.D.R.Crim.P. 46(b) seems to provide some insight on how the subdivision should be interpreted: "Subdivision (b) provides a person with a right to reapply for a change of conditions of release to a magistrate other than the magistrate who imposed the original conditions." This explanatory note suggests that N.D.R.Crim.P. 46(b) was designed to allow a person the chance to have a second magistrate take a second look at release conditions.
N.D.R.Crim.P. 46(b) has remained essentially unchanged since originally adopted in the early 1970s. However, the explanatory note language quoted above was removed in 1984 during a general revision of the criminal procedure explanatory notes and replaced with a reference to the soon to be repealed statute. It is not clear why this change was made--perhaps the Committee reasoned that reference to specific federal code sections would be more useful than generalized guidance.
Two alternative proposed amendments for subdivision (b) are provided: Alternative A specifies that an accused seeking review can apply to have a review done by a magistrate outside the district where the offense was committed--this seems to be what the language of the current subdivision allows; Alternative B specifies that an accused seeking review of a release decision made by someone other than the trial judge can apply to the trial judge for review--this seems to be what the original federal statute allowed.
Fed. R. Crim. P. 46 was amended in December 2003 as part of the form and style amendments to the criminal rules. It does not contain a provision analogous to North Dakota's subdivision (b). Further, as noted above, the federal statute on which subdivision (b) was based was repealed almost 20 years ago. Therefore, as a third alternative, the Committee may wish to consider whether subdivision (b) should be retained at all.