Bail and Pretrial Release in Federal Criminal Cases

After someone is arrested for a federal crime, they will often be held in jail until they can appear in a courtroom. Pretrial release, or “bail,” is the defendant's release from detention pending trial.

However, the federal government has procedures that must be followed to release a defendant, which a judge or magistrate judge decides. While specific procedures can vary somewhat from jurisdiction to jurisdiction, they all have some legal requirements.

Bail and Pretrial Release in Federal Criminal Cases

Federal judges have wide discretion on whether to grant or deny a request for release before trial.

Federal criminal cases have no system of bail, bail bonds, or bail bondsman; instead, they use a pretrial release program. A federal judge could grant release on personal recognizance, conditional release, temporary detention, or detention before trial.

Federal judges have discretion whether to grant or deny a request for release before trial, but to deny a request for release, they have to find that personal recognizance will not assure the defendant's appearance in court later or a release would endanger someone's safety.

Below we will review the many aspects of a pretrial release in federal criminal matters, procedures, modifications, and pretrial release conditions. Simply put, a pretrial release is the release of a defendant after their arrest based upon their promise to appear in upcoming criminal court proceedings.

Still, they must first satisfy the conditions set for their release. After arrest, the first appearance is before a federal magistrate judge, who will be shown a complaint or indictment that provides information about the charges against them. A federal public defender could be assigned if they don't have private counsel.

What is a Detention Hearing?

A detention hearing is a court proceeding where a judge determines whether to grant a pretrial release. They are typically held soon after a defendant's arrest and are often part of another hearing, such as the initial arraignment.

At the detention hearing, the defense lawyer and federal prosecutor can make their arguments and present evidence, such as the following:

Witness testimony,
Pictures,
Videos,
Related documents and reports.

Afterward, the judge will make a decision on whether to release the defendant. Suppose the judge decides to grant a release. In that case, they will have to decide on what conditions of release are imposed.

Thus, a defense lawyer's decisions on arguments and evidence at the detention hearing are crucial for overall strategy later.

What Is the Pretrial Services Department?

The Pretrial Services Department will investigate all defendants who appear before a magistrate judge. They will recommend to the judge whether the defendant should be detained or released, including recommendations regarding conditions of release defined under 18 U.S.C. 3154(1).

The Pretrial Services Department will make a recommendation to the judge about a release.

This report is heavily relied upon by the federal court and prosecutors, which will include the following information:

defendant's history and characteristics,
ties to the community,
financial situation,
employment history,
prior criminal history, and
other relevant factors.

A defendant's attorney must contact the pretrial department to explain their ties to the local community and property that might be available to post for release, along with any potential sureties who will sign a signature bond for their release.

There are two primary factors the court must consider when evaluating whether or not to release a federal defendant, including the following:

danger to the community;
flight risk if the defendant is released.

Suppose the government shows that the defendant is either a danger or a flight risk. In that case, the burden of proof is now the defense lawyer's responsibility to show mitigating factors supporting a release.

What Is a Pretrial Interview?

A Pretrial Services Officer, a federal court employee, will interview new arrestees to gather background information. These are called “pretrial interviews.”

During a pretrial interview, the officer will ask basic personal questions and might verify the information you provided them by calling people or gathering documents.

They will not usually ask any questions related to the federal crime charged. All defendants still have a Fifth Amendment right not to answer questions that could incriminate them. Suppose they ask you a question you are hesitant to answer. In that case, you have a right to first speak with your lawyer.

After the interview, the Pretrial Services Officer will complete a report summarizing the information they obtained, a recommendation on detention or release, and any conditions of release.

What Are the Pretrial Release Conditions?

Pretrial release conditions are certain conditions that a judge can impose when releasing a defendant on bail. Suppose you violate one of the terms or pretrial release. In that case, you could face harsh consequences. Some of the most common pretrial release conditions set by a federal judge include the following:

show up for all future court appearances;
supervised by a probation officer;
do not violate any laws;
execute a bond, either unsecured or secure;
wear an ankle bracelet for GPS monitoring;
drug or alcohol testing;
psychological testing;
maintain employment;
follow travel restrictions;
comply with any other conditions set by the court.

Notably, any violations of the conditions of release can be a reason for the judge to revoke your pretrial release. This means you could be held in jail for months waiting for a trial.

What Are the Types of Federal Bonds?

Sometimes, you might be permitted to sign a “signature bond,” a promise to return to court and obey all laws while on pretrial release. This means you would not have to pay any money or have collateral.

A signature bond and a property bond are the two types of bonds in the federal court system.

Other times, the court could require sureties to post collateral supporting your release. This means you will have to offer property of significant value, typically a home that could be forfeited to the government if you abscond or violate pretrial release.

Notably, your defense lawyer should negotiate an unsecured bond if possible. This means a third party can sign a promise ensuring your return to court.

The third-party surety should present in court for the bail hearing that shows the judge there is a family support system.

While out on bond, the pretrial services department monitors your activity while awaiting trial. You will have regular check-ins with a pretrial services officer. You might have to submit to electronic GPS monitoring home detention. The potential consequences of failing to follow the conditions include the following:

prosecuted for contempt of court or failure to appear,
release order revoked or amended, and
security pledged for compliance may be forfeited.

If you or a family member was charged with a federal crime and need help with the bail process in federal court, contact our federal criminal defense attorneys for a free case consultation.

We provide legal representation across the United States on federal criminal issues. The Hedding Law Firm is located in Los Angeles, CA.

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