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Bail and Pretrial Release in Federal Cases

What is Bail or Pretrial Release?

After a person is arrested, he or she is detained and held in jail. Pretrial release, or bail, is the release of the individual until the resolution of the underlying case. 

Detention Hearings

A detention hearing may happen very quickly after arrest, even as soon as the defendant’s initial appearance, which is within days of the arrest. During a detention hearing, both the Government and the defendant’s attorney will present evidence and make arguments to establish whether the defendant is or is not a danger to the community or a flight risk. The judge will subsequently make a decision as to whether to release the defendant and, if so, what conditions will be required. If a defendant is released with conditions, it is important that he or she consult with his or her attorney to ensure a complete understanding of the conditions of pretrial release. 

Applicable Law ­­– The Bail Reform Act of 1984 

In federal cases, there is a specific statutory scheme that governs when an individual will be released pretrial – the Bail Reform Act of 1984. See 18 U.S.C. § 3141, et seq. The Bail Reform Act provides that a defendant must be released pretrial unless the defendant presents a danger to the community or there is a risk that the defendant will not appear in court when required.  If any of these issues is present – and the Government bears the burden of establishing them – the judge will then consider whether a condition, or set of conditions, will reasonably assure that the defendant will not be a danger and/or will not be a flight risk. Notably, “reasonably assure” does not mean “guarantee.” In assessing whether a defendant should be released pretrial, a judge will consider a number of factors, including the defendant’s criminal history, nature of the charges, family ties, ties to the community, and employment history. See 18 U.S.C. § 3142(g). 

The prosecutor, or the federal government has the burden of establishing that either, or both, of the risk factors above is present. However, in some cases, the Bail Reform Act provides a rebuttable presumption against release that the defendant must be prepared to overcome.  

Presumptions in Favor of Detention

In general, the Bail Reform Act seeks to prevent unnecessary detention of pretrial defendants and favors pretrial release. However, in some cases, the Bail Reform Act provides a rebuttable presumption against release. These presumptions arise in cases involving serious drug charges, firearms offenses, and crimes against minors. See 18 U.S.C. § 3142(e)(2); 18 U.S.C. § 3142(e)(3). If these presumptions apply, the defendant must be prepared to present evidence to sufficiently rebut the presumption and show that he or she is neither a danger to the community or a flight risk. 

Potential Pretrial Release Conditions 

If there is a condition, or combination of conditions, that will reasonably assure the defendant’s presence at trial and the safety of the community, there are a variety of conditions that could be put in place. These conditions range from a simple promise to show up to court (personal recognizance), to GPS monitoring, to even requiring the criminal defendant to be placed with a third-party custodian and have 24/7 cameras around his or her home. One conditions that is virtually standard across the board is that the defendant must refrain from committing any violation of State or Federal law while on pretrial release. A list of potential conditions is set forth in the Bail Reform Act, 18 U.S.C. § 3142(c)(1)(B).

How Can an Experienced Attorney Help Secure Pretrial Release? 

The detention hearing, although early in the process, is an important step in a federal prosecution. It is much easier for a defendant to fight the charges against him while out on pre-trial release. An experienced attorney is able to help a defendant compile evidence from family members, members of the community, and others about the defendant in an effort to show that the defendant is not a danger to the community or a flight risk. As discussed above, a court may require that a defendant be released only to a third-party custodian, and there are some judges that simply refuse to release a defendant to third-party custodian that was living with the defendant at the time the alleged crime(s) took place. Your attorney will be able to assist you in navigating potential landmines and help you locate an appropriate custodian, which will help secure your release. 

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