The procedures and standards governing pretrial detention in federal court were modified substantially in 1984 with the Bail Reform Act of 1984 (18 U.S.C. § 3142). The modification was made to give courts adequate authority to make pre-trial decisions that consider the dangers of an individual’s release in lieu of pretrial detention. The Supreme Court has limited the circumstances in which pre-trial detention can be sought by the government to some of the most serious federal criminal offenses.
The Bail Reform Act presumes federal criminal defendants should be released pending trial or sentencing in their case, unless narrowly drawn categories of potential pre-trial detainees. However, the presumption of release pretrial still allows for strict conditions of pretrial release to ensure the safety of the community and the defendant’s return to court. The language of the act itself gives preference to pretrial release for federal criminal defendants.
Detention Hearings pursuant to the Bail Reform Act
As stated previously, the Bail Reform Act sets careful boundaries, in which pre-trial detention may be ordered. It is widely accepted that only six circumstances exist that permit a court to even hold a pretrial detention hearing, let alone place a federal criminal defendant into pretrial detention:
- Cases with a maximum sentence of life imprisonment or death;
- Cases involving federal violent crime;
- Cases involving serous drug offenses, i.e. 10 years or more in federal prison;
- Defendants considered recidivist offenders, i.e. two or more relevant felony convictions involving violence or drug offenses
- Defendant poses a serious risk of flight, not returning to court;
- Defendant poses a serious risk of obstructing justice.
Consideration of Defendant’s Danger to the Community
The first four categories of offenses provide a rebuttal presumption that no combination or conditions of pretrial release will assure the defendant’s appearance in court or the safety of the community. The government must seek pretrial detention; however, it is a much lower hurdle to convince a federal judge that pretrial detention is appropriate in federal criminal cases involving these crimes.
Additionally, the Federal Rules of Evidence are not applicable in detention hearings. The existence of the indictment against the defendant alone creates a rebuttal presumption that no condition or combination of conditions will ensure the safety of the community or witnesses in the criminal case and no conditions can ensure the defendant’s appearance for trial.
In order to rebut the presumption, the defendant must produce sufficient evidence that the he or she is not a danger to the community and his or her presence can be guaranteed in court. The government retains the burden of proof that the risk of flight and/or danger to the community exists; however, the standard is preponderance of the evidence for risk of flight and clear and convincing for danger to the community.
Eligibility for Pretrial Release Factors
Federal judges must consider the factors listed in 3142(g) in order to make a proper determination regarding eligibility of a defendant to receive pretrial release. The factors for consideration of pretrial release are as follows:
- The nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics);
- The weight of the evidence against the person;
- The history and characteristics of the person – 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;
- 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
- The nature and seriousness of the danger to any person or to the community that would be posed by the person’s release.
Additionally, the federal judge may consider any property offered for potential forfeiture or as collateral to secure bond. The federal judge may refuse the designation of collateral or property as security for a bond, if the federal judge decides the collateral is not sufficient to assure the appearance of the defendant as required.
Serious Flight Risk Factors
In federal criminal cases where the risk of flight is a serious consideration, more than the alleged commission of a serious crime is required to support the court’s finding of a serious flight risk. The relevant factors to support a serious risk of flight includes the following:
- The defendant’s use and number of aliases;
- The defendant’s lack of substantial ties to the community;
- The defendant’s efforts to avoid arrest or apprehension;
- Identification of hidden assets held by the defendant; and
- Evidence of an intent to flee the country subsequent to the federal indictment.
Additionally, in crimes involving economic fraud the government must present more than evidence of serious economic crimes / access to substantial sums of ill-gotten financial gains. Access to substantial funds is insufficient on its own to grant pretrial detention. Rather, in crimes involving economic fraud, evidence of strong family or business ties outside of the United States is necessary to support pretrial detention even with the presence of high monetary bond.
Categories of Pretrial Release and Pretrial Detention
Upon consideration of the relevant factors, the judge will enter an order designating a defendant’s custodial status under one of four categories:
- Release on personal recognizance or execution of an unsecured appearance bond;
- Release upon a condition or a combination of conditions of pretrial release as identified in §3142(c);
- Temporary detainment to allow for revocation of conditions of release, exclusion under §3142(d), or deportation; and
- Pretrial detention pursuant to the guidance of §3142(e).
Category I: Release on Personal Recognizance or Execution of an Unsecured Appearance Bond
Federal judges are authorized to order pre-trial release of federal defendants on their own personal recognizance or execution of an unsecured appearance bond, at an amount specified by the Court. These release orders are conditioned upon the federal defendant’s promise to not commit any federal, state, or municipal crimes during their pretrial release.
However, if the federal judge considering pretrial detention believes personal recognizance or an unsecured appearance bond is not sufficient to guarantee the federal defendant’s appearance at future court proceedings, i.e. a flight concern or release without conditions will not protect the community from the defendant, the federal judge will order additional conditions of pretrial release or order pretrial detention.
Category II: Release upon a Condition or a Combination of Conditions of Pretrial Release as Identified in §3142(c)
Federal judges must impose the least restrictive condition or combination that will reasonably assure the defendant will appear as required by the court and reasonably assure the safety of the community and any party involved in the case. The following conditions are available to federal judges for pretrial conditions of release:
- Electronic monitoring;
- Employment or actively seeking employment;
- Abide by restrictions concerning association, travel, residency;
- Avoid all contact with alleged victims and potential witnesses in the case;
- Refrain from possession of firearms and weapons;
- Refrain from the excessive use of alcohol, narcotic, and controlled substances;
- Participate in available psychological, psychiatric treatment, drug and alcohol treatment, and/or medical treatment; and
- Abide by curfew restrictions set by the Court.
Federal judges are prohibited from imposing financial conditions, which force pretrial detention of the defendant. The federal judge may amend conditions of pretrial release, including additional conditions or different conditions of pretrial release, at any time.
When does a federal Detention Hearing take place?
As soon as possible, federal detention hearings occur when the defendant’s first appears before the Court. However, if a federal defendant does not have representation at the initial appearance, the detention hearing will be delayed until federal criminal defense counsel can be present. Typically, a three-day delay of the detention hearing is allowed upon a motion of the government. Alternatively, the defendant may request a delay of five days for good cause. Until the detention hearing takes place the defendant will be remanded to federal custody with the United States Marshal.
Can I appeal a federal detention order?
When a detention order is entered by a federal magistrate judge, the decision may be appealed or reconsidered by a federal district judge. The district court is required to review the issue of pretrial detention De Novo, meaning a review of the facts and issues before the Court and after an independent conclusion.
Bail Motion following Pretrial Detention Order
Defendants in federal court may move for release, if detention is ordered. In reconsideration of a detention order, i.e. a motion for Bail following Pretrial Detention, the federal court judge must consider the following factors:
- The length of pretrial detention;
- The prosecutor’s involvement in or responsibility for the delay; and
- The strength of the evidence that the prior pretrial detention order is based.
Length of Pretrial Detention: the longer pretrial detention occurs, the greater the danger of a denial of due process. Therefore, excessive or lengthy pretrial detention will weight in favor of a defendant’s motion for bail. However, this factor alone does not form the basis for the grant of bail and the opportunity to participate in pretrial release.
Cause of the Delay: the progress or lack of progress in a criminal case is a consideration in granting a motion for bail and pretrial release subsequent to a detention order. Additionally, motions for continuance, discovery challenges, plea discussions, and other causes for delay, especially by the prosecution can form the basis for bail to be established after an order of pretrial detention.
Finally, the Court will grant your federal criminal defense attorney the opportunity to present any relevant information for its consideration in granting or potentially denying pretrial release in your federal criminal case. As is the case is state court criminal proceedings, it is presumed that you have committed the alleged offenses in the indictment for purposes of bailment and pretrial release. However, an experienced federal criminal defense attorney may be able to assist you in obtaining pretrial release by telling a compelling story to support you are not a threat to the community and will not flee the jurisdiction or country.
Contact – Cannon & Associates: Federal Defense Advocates
Experience matters when you are facing a federal indictment by a grand jury on a detention hearing in your pending federal criminal case. It is important to know the federal criminal defense lawyer you hire is dedicated to your cause and versed in all aspects of federal criminal law and federal detention proceedings. Cannon & Associates is dedicated to Fierce Advocacy and will fight for your rights.