Bail and Pretrial Release in Federal Court​

Release/Detention of Defendant Pending Trial

California State bail procedures and requirements are significantly different from those found in federal criminal cases. Understanding the procedures for initially setting bail, modifying bail after it is initially set, and conditions of pretrial release should help give you an idea of what to expect if you or a loved one is taken into custody in connection with a federal crime.

Bail is the release of an individual following an arrest upon their promise to appear in at subsequent judicial criminal court proceedings. A defendant could be denied bail if they are unable to satisfy the conditions set for their release. Federal court refers to release on bond or conditions as “Pretrial Release.”

If the magistrate does not initially release the accused on personal recognizance or conditions, a hearing on the release of the accused must be held “immediately” upon the individual’s first appearance before the judge or magistrate.

If you’ve been subpoenaed, indicted, or you’re under investigation, you need to find and hire the right lawyer to provide the best guidance and counsel. If this is your first time dealing with the justice system, it is normal to be nervous about how you make the decision to hire a lawyer.  Criminal charges can be terrifying, and convictions can have an effect on you for the rest of your life. This article is designed to help you and your family look for and hire the right person or firm in your state.

If you have been charged with a serious state or federal crime in Southern California-Contact us now for a free consultation.

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The Detention Hearing

Defendants who the Government believes are neither a danger nor a flight risk are given the opportunity to appear voluntarily at the initial appearance.  These defendants appear via summons, which is a letter of notification to appear voluntarily in court.

A detention hearing should be held on the defendant’s initial appearance when in custody. The magistrate judge has four options available in descending order of preference.

1) The release of the defendant on personal recognizance or unsecured bond.

2) Release the defendant on conditions.

3) Temporarily detain defendant to permit deportation, exclusion or to permit revocation of conditional release; or

4) Detain the defendant in government custody.

Who is Granted Pretrial Release?

18 U.S.C. § 3142 provides that pretrial release must be available unless there is:

(1) A risk that the defendant will not appear for future hearings (“risk of flight”), or

(2) A risk that the defendant will commit additional crimes (“danger to the community”). 

If either factor is present, then the judge must consider whether some combination of release conditions (such as travel restrictions or GPS monitoring) will sufficiently mitigate the risk, so that there is a reasonable assurance the defendant will appear for future hearings and will not be a danger to the community.

The prosecutor usually has the burden of proof at a detention hearing, and unless the prosecutor meets that burden, the defendant is entitled to pretrial release. However, in some cases, such as cases involving serious drug charges, certain firearms offenses, and crimes against minors, the law imposes a rebuttable presumption against release. This means that the defendant must produce some evidence showing that he is neither a flight risk nor a danger to the community.

Here are some common factors that courts will take into consideration when deciding whether a defendant should be granted pretrial release:

  • Does the defendant have a significant criminal history? And if so, does that criminal history involve previous failures to appear for court proceedings, or the commission of violent crimes?
  • What are the nature and circumstances of the crime charged?
  • Is the evidence against the defendant strong?
  • Does the defendant have a permanent residence in the jurisdiction?
  • What kind of ties does the defendant have with the jurisdiction?
  • Is the defendant presently employed or going to school?

If the judge is persuaded that the defendant will likely show up for future court hearings and will not commit additional crimes while on pretrial release, then the judge will order pretrial release—possibly with conditions attached.

What Are Pretrial Services?

18 U.S.C. § 3154 – Functions and Powers Related to Pretrial Services

The pretrial services department conducts an initial investigation for all defendants who appear before a magistrate judge for a bond determination.

18 USC § 3154(1) dictates that pretrial services department makes the recommendation to the Judge whether the defendant should be detained or released, including specific recommendations regarding conditions of release.

This report, which carries great weight with the court and with federal prosecutors, will detail the defendant’s history and characteristics, including ties to the community, financial situation, prior criminal history if any, employment history, and other important factors.

An experienced federal criminal attorney will make sure a defendant’s family contact the pretrial department to explain the defendant’s ties to the community, any property that may be available to be posted for the bond, and any responsible sureties who are willing to sign third party signature bonds in support of defendant’s release.

After the interview, the Pretrial Services Officer will compile a report, which will summarize the information obtained, and recommend detention or release, as well as any conditions of release.   Prior to conducting a detention hearing, the judge will review the report and may to discuss that officer’s recommendation. The Pretrial Services Officer’s recommendation usually plays an important role in the judge’s decision.

If the government shows that the defendant is either a danger or a flight risk, or both, then the burden shifts to the defendant to show that there are factors that mitigate those risks, so that release with conditions are appropriate.

How Can An Attorney Help Me Obtain Pretrial Release?

An experienced attorney has many ways to build a case for pretrial release.  Here are just a few:

Interviewing Family Members, Employers, and Other Members of the Community

One of the first steps that an attorney can take is obtaining a list of witnesses with pertinent information about the defendant.  Family members, current and former employers, friends, and acquaintances, may all have information about the defendant’s character, employment, and ties to the community.  An attorney can interview these individuals to determine what information they possess and their willingness to help the defendant in obtaining pretrial release.

Obtaining Letters of Support

Live testimony is rarely presented in court at the detention hearing, and the judge will frequently rely on letters that are submitted on behalf of a defendant. Letters that confirm the defendant’s employment, or the defendant’s commitment to financially supporting his family, or describing the defendant’s good character, are all helpful to obtaining pretrial release. Letters from other members of the community, such as a letter establishing an individual’s involvement in community organizations, may go a long way to making a favorable impression with the judge.

Securing Third Party Custodians.

One condition a judge may order is that a defendant can only be released to a suitable third-party custodian. Suggesting the option of a third-party custodian to the judge may persuade the judge to grant pretrial release in a case where the judge would have otherwise ordered detention.  An experienced attorney can help you come up with suitable candidates to serve as a third-party custodian.

Pretrial release is an important consideration here at the BDN. In many criminal cases, especially serious drug crimes or white-collar crimes, the time between arrest and trial may be many months, if not years. It is important that our clients do not languish in jail during this lengthy waiting period. Furthermore, it is easier for us to meet with and represent someone who is on pretrial release.

Contact us today if you need assistance obtaining pretrial release.



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