Bail in the Federal System


If you are charged with a federal crime, you have no absolute right to be released on bail.  If the court determines that there are no conditions that will reasonably assure your presence at future court appearances, or that you pose a danger to the community, it can enter a “detention order” meaning that you will be held without bail pending final resolution of your case.  Certain charges such as crimes of violence or drug offenses carrying a maximum sentence of ten years or more gives rise to a presumption in favor of detention.  This means that you must persuade the court that you are neither dangerous nor a flight risk.

Hearings to determine whether you will be released on bail, called detention hearings, are held before a Magistrate Judge.  Magistrate Judges have limited powers and duties, which include detention hearings.   If the Assistant United States Attorney wants to have you detained, he or she will make a formal request for detention at your first court appearance.  The detention hearing will then be held immediately unless your attorney or the prosecutor seeks a continuance.  A continuance requested by the prosecution cannot exceed three days and a continuance requested by your attorney cannot exceed five days.  Pending the hearing, you will be held in custody.  Prior to the hearing, you will be interviewed by Pre-trial services officer, who will make a recommendation to the court as to whether you should be released and if so, under what conditions.  Your attorney should be present at the interview.  The Pretrial services officer will ask about such things as your employment history, mental health, and ties to the community.  You need to provide accurate and truthful information to the Pretrial services officer but should not discuss the offense.  

In deciding whether to release you, the Court will consider such things as employment, length of residence in the community, family ties, criminal history, substance abuse, seriousness of the offense, and the possible penalties.  The Court may decide to order you detained, release you on bail, or release you on your personal recognizance.  Personal recognizance consists of your written promise to appear without the necessity of posting bail.  If you are released, the court will impose conditions such as requiring you to remain in the district, and abstain from the use of nonprescription drugs or alcohol.  Typically, persons released are required to submit to a random urinalysis test.  The court can also require you to be placed on electronic monitoring, participate in a drug treatment program, or reside in a halfway house.  If released, you will be under the supervision Pretrial services, which is much like being on probation.  If you violate the conditions of release, you may be rearrested and detained pending trial.

People with the best chance of pretrial release include those who reside in the community, have significant community ties and are charged with relatively non-serious crimes.  Those more likely to be detained are non-citizens or are charged with offenses carrying a lengthy sentence. If the Magistrate Judge issues a detention order, you can appeal the decision to the District Court Judge who is assigned to your case.   If you lose in the District Court, you can appeal to the Court of Appeals.  You can also ask the Magistrate Judge to reconsider the decision based on new information that becomes available after the detention hearing.

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Some things are time sensitive. Do you have a hearing date scheduled? Did you just receive a grand jury subpoena? Is some detective knocking at your door and asking you to come to the police station for an interview? If so, give us a call right away.