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:

1. Remain in the custody of a designated person who agrees to assume supervision (for example, remain in the custody of your father);
2. Maintain employment or seek employment (keep your job or, if you're unemployed, actively seek a job);
3. Maintain or commence an educational program (for example, stay in school or get your GED);
4. 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);
5. Avoid all contact with an alleged victim of or witness to the crime;
6. Report regularly to a designated agency (for example, report to pretrial services);
7. Comply with a specified curfew;
8. 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);
9. Refrain from excessive use of alcohol, or any use of a controlled substance without a prescription;
10. Undergo medical, psychological, or psychiatric treatment, and remain in a specified institution if required for that purpose;
11. 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);
12. 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);
13. Return to custody for specified hours following release for employment, schooling, or other limited purposes; and
14. 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:

1. You might actually win and get released on conditions.
2. 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.
3. 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.

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Mark.

This page is a work in progress. If you'd like to discuss bail in federal criminal court, please contact me