Federal Bail

Congress enacted the Bail Reform Act of 1984 (18 U.S.C. § 3142) to modify the procedures and standards governing pretrial detention in the federal courts hoping to give the courts adequate authority to make pre-trial release decision that give appropriate recognition to the danger a person may pose to others if released.  According to the Supreme Court, the Bail Reform Act carefully limits the circumstances under which pre-trial detention may be sought by the government to the most serious of crimes.  The Bail Reform Act presumes that but for those persons falling within its narrowly drawn categories of potential pre-trial detainees, charged individuals should be permitted to be released, albeit in some situations with added conditions.  By its very language, the Bail Reform Act demonstrates a favorable inclination toward pre-trial release of federal criminal defendants.

As mentioned above, the Bail Reform Act carefully limits the circumstances under which pre-trial detention may be sought.  It is uniformly accepted that there are only 6 instances that permit a court to hold a detention hearing:

1. Cases involving crimes of violence;
2. Cases involving a maximum sentence of life imprisonment or death;
3. Cases involving serious drug offenses (those involving maximum sentences of 10 years or more);
4. Cases involving recidivist offenders (those with 2 or more relevant felonies involving violence and/or drugs);
5. Cases involving a serious risk of flight; or
6. Cases involving a serious risk that a defendant will obstruct justice.

The first 4 categories of offenses that trigger detention not only give the government the right to seek detention, but in most circumstances there is a rebuttable presumption that no combination or conditions will reasonably assure either the defendant's appearance or the safety of any other person or the community.

The Federal Rules of Evidence do not apply in a detention hearing and the indictment alone is sufficient to raise the rebuttable presumption that no condition (or combination of conditions) will ensure the defendant's appearance for trial and that no conditions of release will ensure the safety of the community.

To rebut the presumption, the defendant must produce sufficient evidence.  The government bears the burden of persuasion to prove risk of flight by a preponderance of the evidence and danger to the community by clear and convincing evidence.

When making a determination regarding the eligibility of a defendant for pretrial release (whether personal recognizance , unsecured appearance bond, or release on conditions), the judge must consider the factors listed in § 3142(g), including:

1. the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics);
2. the weight of the evidence against the person;
3. the history and characteristics of the person --
   1. character -- including physical and mental condition), family ties, employment, financial resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and
   2. whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
4. the nature and seriousness of the danger to any person or to the community that would be posed by the person's release.

In addition, the court may conduct an inquiry into the source of any property to be designated for potential forfeiture or offered as collateral to secure any bond.  If the court determines that any such collateral or property, because of its source, will not reasonably assure the appearance of the defendant as required, the designation or use of the collateral or property as security for a bond will be refused.

In cases where only a serious risk of flight is at issue, it is generally accepted that more than evidence of the commission of a serious crime and the fact of a potentially long sentence is required to support a finding of serious risk of flight.  Relevant factors that support a serious risk finding include:

1. The use of a number of aliases;
2. Unstable residential ties to a community;
3. Efforts to avoid arrest;
4. Hidden assets; and
5. An intent to flee the country in response to an indictment.

In economic fraud cases, it is particularly important that the government proffer more than the fact of a serious economic crime that generated great sums of ill-gotten gains.  Merely having access to significant funds is not enough; evidence of strong foreign family or business ties is necessary to detain a defendant even in the face of a high monetary bond.

Upon consideration of the relevant factors, the judge will enter an order designating a defendant's custodial status under one of four categories:

1. Released on personal recognizance or upon execution of an unsecured appearance bond;
2. Released on a condition or combination of conditions as defined by § 3142(c);
3. Temporarily detained to permit revocation of conditional release, deportation, or exclusion under § 3142(d); or
4. Detained pursuant to the provisions of § 3142(e).

The judge is authorized to order the pre-trial release of a defendant on "personal recognizance" or upon the defendant's execution of an "unsecured appearance bond" in an amount specified by the court.  The release order must be conditioned on a defendant's agreement to "not commit a Federal, State, or local crime during the period of release."

If, however, the judge determines that the release of a defendant on "personal recognizance" or "unsecured appearance bond" would not "reasonably assure" the defendant's appearance at future court proceedings or safety to the community, the judge may order additional conditions of release to apply.

The judge must impose the least restrictive condition or combination of conditions necessary to "reasonably assure" the defendant's appearance as required and to "reasonably assure" the safety of any person and the community," including:

1. Electronic monitoring;
2. Maintain or actively seek employment;
3. Abide by specified restrictions on personal associations, residency, or travel;
4. Avoid all contact with an alleged victim of the crime and with a potential witness who may testify;
5. Report on a regular basis to pre-trial services;
6. Comply with a specified curfew;
7. Refrain from possessing a firearm or other weapons;
8. Refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance; and
9. Undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency.

A judge is not permitted to impose any financial conditions of release which result in the pretrial detention of a defendant. The conditions of release imposed on a defendant may be amended at any time to impose additional or different conditions of release.

The detention hearing is supposed to take place immediately upon the defendant's first appearance before the judge. However, given the fact that a defendant may lack representation at the initial appearance, the detention hearing is not likely to go forward unless the court has made other arrangements for the defendant to be represented by counsel. A 3 day delay of the detention hearing is also allowable upon the motion of the government attorney. A defendant may request a continuance of up to 5 days, for good cause shown. Between the time the detention motion is filed and the actual detention hearing is held, the defendant will remain in the custody of the United States Marshal's Office.

If the magistrate judge enters an order for pre-trial detention the defendant may appeal to the district court for reconsideration.  When a defendant seeks review of an order of detention, the district court is bound to review the matter de novo, and undertake a complete review of the matter for the purpose of arriving at its own "independent conclusion."

A defendant may also make a motion for release if detention is ordered.  When a defendant moves for release on bail following pre-trial detention, the court must consider three factors:

1. The length of the pretrial detention;
2. The extent to which the prosecution is responsible for the delay of the trial; and
3. The strength of the evidence upon which the pretrial detention was based.

Regarding the length of pre-trial detention, there is no doubt that the longer the pretrial detention the more likely the denial of due process. Typically, this factor weighs in favor of the moving defendant. This factor by itself, however, is not determinative of a defendant's bail application.

Regarding the reason or "responsibility" for delay factor, the court will consider information relating to pretrial events such as motions for continuance, discovery disputes, complexity of the case, plea discussions, and other matters relating to the progress (or lack thereof) of the case.

Regarding the reasons for the pretrial detention, the court will examine the findings from the detention hearing.

If you are facing pre-trial detention for federal criminal charges, you need an attorney with a record of proven success. Federal criminal defense attorney Ann Fitz has the experience and strategic abilities to fight to keep you released during your federal criminal case.

Call us today at 561-932-1690 to schedule a free, confidential consultation to discuss your case. We are also available by email.