Bail Hearings in Federal Criminal Courts
When someone is arrested by federal law enforcement, one of their first questions is when they can get released from custody. In most state arrests, a defendant commonly posts a cash bond through a bail bondsman. In federal courts, however, cash bonds are not used. Pretrial detention without bond is much more common.
Disputes between the prosecution and the defense about the appropriate amount or conditions of bail necessitate a bond hearing. A federal bail hearing is also called a detention or bond hearing.
In federal court, the bond issue is not simply one of setting a dollar amount. The judge must consider the risk to public safety and the defendant's risk of flight when addressing a bond.
When defendants are released pending trial, they are either released upon their promise to return to court or required to provide sureties. This is for individuals willing to post collateral in the form of substantial-value land, property, etc., which guarantees the defendant's return to court.
If the defendant flees, the sureties will forfeit the posted collateral to the government, providing a strong incentive for both the defendant and the sureties to ensure that the defendant complies with his or her responsibilities to the federal court.
Our federal criminal defense attorneys are providing a closer review below to help readers better understand federal bail hearings.
What is a Pretrial Services Report?
One crucial document judges in the federal system rely on in making bail determinations is a report prepared by the pretrial services department in federal court. The pretrial services report will provide the judge with information about the defendant's:
- Residency,
- Work History,
- Connections to the community.
It will also include other factors that help the judge assess the individual defendant's public safety or flight risk. In federal court, pretrial services typically interview the defendant when preparing the report.
Once the judge has decided on an unfavorable bail for the defendant, there may still be an opportunity to revisit the issue. In federal court, a defendant initially detained without bond can request reconsideration of the bond decision by the judge who ultimately handles the case. A United States magistrate judge makes the preliminary determination.
What is the Federal Process from Arrest to Bail Hearing?
There are numerous steps between getting arrested and a federal trial. The federal criminal process is infamous for taking many months to resolve cases.
A federal bail hearing will determine where a defendant will spend their time during this process, either remanded to a federal prison facility or granted pretrial release. If the federal judge grants the defendant pretrial release, the bond amount will be decided at a federal bail hearing.
Arrest & arraignment
Once a defendant has been arrested for a federal offense, they are held in custody by the United States Marshals until their arraignment in court, typically within 72 hours. The federal court system's first court hearing after an arrest is called an “arraignment.”
This is where the prosecutor reads the criminal charges against the defendant in open court, and the defendant enters a plea. Next, there will be a federal bail hearing. The bail hearing could occur at the arraignment or be scheduled for a later date.
What Factors Are Considered for Pretrial Release in Federal Court?
Federal statutes determine the factors for a pretrial release. 18 U.S.C. 3142, enacted by the Bail Reform Act of 1984, gives federal judges some discretion to grant a defendant pretrial release.
The federal prosecutor is responsible for proving that the defendant should be remanded to custody before their trial because they are a danger to the community or a flight risk. The federal judge will use the “totality of circumstances” to decide on bail and pretrial release.
Defendant's “danger to the community”
Under 18 U.S.C. 3142, a federal judge must determine that the defendant is NOT a danger to the community to grant a pretrial release. To make this decision, they will consider many different factors:
- Type and strength of the alleged federal offense,
- Whether the federal crime included violence,
- Alleged motivation for the offense,
- Defendant's criminal record,
- Defendant's physical and emotional condition.
Many defendants who have profound gang connections are commonly considered too dangerous to release before trial, especially if there is evidence they could seek revenge against a witness. A federal judge can impose specific pretrial release conditions that could make them less dangerous to the community.
Defendant's “flight risk”
The phrase “flight risk” simply means the defendant will likely leave the state or country before trial in federal court. The federal criminal court system would like to have the defendant remanded to pretrial detention to prevent them from fleeing prosecution.
Most federal criminal defendants have the financial ability to flee the jurisdiction and not appear in federal court.
The judge must determine whether the defendant has a motive and financial ability to flee.
18 U.S.C. 3142 addresses the issue of whether a defendant has the contacts, resources, and motive to leave the area before their court hearings. Conversely, a defendant's federal criminal lawyer can present evidence showing their client has connections to the community, family and business obligations, church membership, or charitable giving to persuade the judge to grant a pretrial release.
What Conditions Will the Judge Set for Federal Pretrial Release?
Pretrial release always depends on a defendant's ability to post bail. The federal judge can impose conditions for release based on the information presented at their federal bail hearing.
The judge's decision on what conditions to impose is often based on suggestions by the defendant's criminal lawyer and the federal prosecutor. Still, they are required by federal law to set conditions that minimize flight risk and danger to the community. Some common conditions of a defendant's federal pretrial release include:
- Treatment in drug or alcohol program.
- Monthly drug testing.
- Participation in counseling or educational courses.
- Participation in mental health treatment or psychological evaluation.
- Turn in your passport or stop or limit travel.
- Regular check-in with federal authorities.
- Prohibited from contacting the victim or their family.
- Prohibited from possessing or owning a firearm.
It should be noted these are the most common conditions imposed for pretrial release, but the judge has broad discretion in setting the conditions for the defendant.
What Does the Actual Bail Hearing Look Like in a Federal Court?
The federal prosecutor convinces the judge that pretrial detention is warranted. They must show significant evidence that the defendant is a danger to the community or a flight risk. The defendant's federal criminal defense lawyer must make counterarguments with facts and evidence.
The prosecutor will often use testimony from federal law enforcement agents and witnesses. Of course, the defense lawyer is allowed to cross-examine all witnesses. It should be noted there are no rules against “hearsay,” which gives the prosecutor a chance to present a broader range of evidence.
Once the federal prosecutor has presented all their evidence, the defense can offer evidence and arguments. In most cases, the defendant will not provide any testimony during a federal pretrial release hearing.
After both sides have completed all the evidence and arguments, the federal judge typically decides quickly. If the judge grants pretrial release, bail is determined, which often leads to further debate over the amount required for release.
Why Do You Need a Federal Criminal Defense Lawyer for a Bail Hearing?
The bail hearing is a crucial first step in the criminal case process if you have been charged with a federal crime. You will need an experienced federal criminal defense lawyer familiar with the bail process to have the best chance at a favorable outcome.
Your lawyer will know the federal laws on the requirements for setting bail and understand compelling arguments for persuading the judge to grant a pretrial release. It would be best to have a federal criminal lawyer who is also familiar with the prosecutor and judge in the federal court where your case is being held.
This means they will know the judge's prior decisions for granting pretrial release, which will help them prepare for your bail hearing with a better chance of success. It would be best if you had a federal defense lawyer who can:
- Arrange for witness testimony on your behalf.
- Gather evidence to challenge the prosecutor's request for detention.
- Guide you through the federal bail hearing process.
The outcome of your federal bail hearing can be life-altering because the judge is deciding whether you can go home to your family or be remanded to custody in a federal prison.
Presenting a solid and aggressive argument for federal pretrial release is crucial. If granted, you will remain out of custody during the criminal case process, often taking many months to resolve. The earlier our federal criminal defense lawyers become involved in your case, the better your chances of a favorable outcome.
After you learn you are under a criminal investigation by the Federal Bureau of Investigation (FBI) or other federal law enforcement, you should contact our law firm immediately to review the details.
Your freedom is at stake. You need a federal criminal lawyer who has experience in federal courts and has some knowledge about the federal judge assigned to your case.
Eisner Gorin LLP is a nationally recognized criminal defense law firm in Los Angeles, California. Contact our office for an immediate consultation.
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