Bail in federal criminal court is governed by the Bail Reform Act, chapter
207 of Title 18 of the United States Code (that is, 18 USC §3141-3156).
When you are arrested on federal charges, you will first be taken before
a U.S. magistrate judge.
There are three different things the magistrate judge can do to you
as far as bail is concerned: release you without conditions; release
you with conditions; or detain you. The decision is made based on two
factors: will your release reasonably assure your appearance in court;
and will your release endanger the safety of any other person or the
community.
Release without conditions
Unless the judge determines that you will be a flight risk or danger
to the community, she must release on your own recognizance or upon
execution of an unsecured appearance bond.
Release on conditions
If the judge determines that you will be a flight risk or danger to
the community if released without conditions, she must release you subject
to the least restrictive further conditions that she determines
will reasonably assure your appearance and the safety of others and
the community. The statute lists fourteen potential conditions:
- Remain in the custody of a designated person who agrees to assume
supervision (for example, remain in the custody of your father);
- Maintain employment or seek employment (keep your job or, if you're
unemployed, actively seek a job);
- Maintain or commence an educational program (for example, stay in
school or get your GED);
- Abide by specified restrictions on personal associations, place
of abode, or travel (for example, refrain from associating with codefendants
in this case, live at a certain address, and don't travel outside
the court's district);
- Avoid all contact with an alleged victim of or witness to the crime;
- Report regularly to a designated agency (for example, report to
pretrial services);
- Comply with a specified curfew;
- Refrain from possessing a firearm, destructive device, or other
dangerous weapon (defendants are commonly ordered not to possess any
firearms or stay anywhere that firearms are kept);
- Refrain from excessive use of alcohol, or any use of a controlled
substance without a prescription;
- Undergo medical, psychological, or psychiatric treatment, and remain
in a specified institution if required for that purpose;
- Execute an agreement to forfeit property upon failure to appear
(for example, promise to forfeit a certificate of deposit if you don't
appear in court);
- Execute a bail bond with solvent sureties (for example, use a bonding
company to make a bail bond -- a promise to pay a certain amount if
you don't appear in court);
- Return to custody for specified hours following release for employment,
schooling, or other limited purposes; and
- Satisfy any other condition that is reasonably necessary to assure
your appearance and the safety of the community (for example, electronic
monitoring, surrender of passports).
Detention
If the judge determines, after a detention hearing ,
that no condition or combination of conditions will reasonably assure
your appearance and the safety of the community, she must order you
detained before trial.
The statute specifically states that, if the judge finds there is probable
cause to believe that you committed a drug offense with a maximum
penalty of ten years or more, there is a presumption that no
condition or combination of conditions will reasonably assure your appearance
and the safety of the community.
The detention hearing
Even if you will be presumed a flight risk and a danger to the community,
your lawyer should (in most cases) insist on a detention hearing before
you are detained. There are several reasons for this:
- You might actually win and get released on conditions.
- The detention hearing is an opportunity for your lawyer to cross-examine
an agent who knows something about the case, to determine the extent
of the behavior the Government believes you engaged in and the limits
of the evidence the Government has against you. Your lawyer most lilkely
won't get another chance to do this until the trial.
- The first days of the case set the tone for the rest of the case.
If the lawyer doesn't put up a fight at the detention hearing, it'll
be a while before he gets another opportunity to convince the Government
that he's going to fight for you.
The most common issues at the detention hearing are:
- Probable cause (if you haven't been indicted);
- Risk of flight; and
- Danger to the community.
Probable cause is important because whether the Government can continue
restraining you at all depends on whether there is probable cause to
believe that you have committed a crime. If there is no probable cause,
the case against you is dismissed and you go home (but the Government
can come back and file a case on you again if they develop more evidence).
Also, if you are charged with a drug crime, whether there is probable
cause affects whether you are presumed to be a flight risk and a danger
to the community. Once you have been indicted by a grand jury, though,
there is a finding of probable cause that is exceedingly difficult to
overcome.
Whether you are a risk of flight depends in part on your ties to the
community. A person with stronger ties (property, family, employment)
to the community is viewed as less likely to flee than someone with
weaker ties. The question of flight risk also involves the strength
of the evidence against you -- if the magistrate judge sees that the
Government's evidence is sketchy, she will be less likely to find that
you are a flight risk than if it appears that the Government has a lock
on putting you in prison.
Whether you are a danger to the community usually depends on the specific
circumstances of the crime alleged by the government (the worse the
crime, the more likely it is that you will be found to be a danger to
the community) and your criminal history (previous convictions increase
your chances of being deemed a danger to the community).
At the detention hearing, the Government puts a witness or witnesses
on the stand to explain the case against you. Your lawyer gets to cross-examine
these witnesses, and gets to see the papers they used to prepare to
testify. When the government has put on its witnesses, your lawyer gets
an opportunity to present evidence that you are not a flight risk or
a danger to the community. This evidence often includes the people who
know and love you testifying that you are a law-abiding person who has
lots of reasons not to skip town.
After hearing from the witnesses and hearing argument from the lawyers,
the judge decides whether to detain you or release you.
If you are indicted, you will return before the magistrate judge for
arraignment -- that is, for the judge to ascertain whether you understand
the charges against you and enter a plea of "not guilty."
Appeal of detention hearing
If the magistrate judge orders you detained, you can ask her to reconsider
this decision, and you can appeal the decision to the district court
judge. District judges will often hear such appeals only on the record
of the hearing below -- that is, they will not hear additional evidence.
Your best shot at bail is to win the first time around, before the
magistrate judge.
--
Mark.
This page is a work in progress. If you'd like to discuss bail in federal
criminal court, please contact
me
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