Navigating the Federal Bail and Bond Process

Navigating the Federal Bail and Bond Process

The bail system in federal court is complex and can be confusing to navigate without an experienced federal criminal defense lawyer. This article provides an overview of federal bail to help make sense of the process.

What is Bail?

Bail is money or property given to the court as security to ensure a defendant will appear for future court proceedings. If the defendant makes all required court appearances, the bail money is returned at the end of the case. But if the defendant fails to appear, the court keeps the bail money.

Bail serves two main purposes – to ensure the defendant’s appearance in court, and to protect public safety by keeping potentially dangerous defendants detained pre-trial. Judges have to weigh these factors in setting bail.

No Bail Bondsmen in Federal Court

A major difference between federal and state bail is that the commercial bail bond system used in state courts does not exist in federal court. Federal defendants must post the full bail amount themselves in cash or property. They cannot use a bail bondsman who posts a percentage of the bond for a fee.

This means federal defendants need to have significant assets to put up for bail. Those without means face a much tougher road to pretrial release. An experienced federal defense lawyer can argue for lower bail based on inability to pay.

The Bail Reform Act of 1984

The main law governing federal bail is the Bail Reform Act of 1984. This law established new protections for defendants while also expanding the government’s power to detain defendants pre-trial. Key provisions include:

• Presumption of Release – The law states defendants should be released pre-trial unless the government shows clear evidence they are a flight risk or danger. This established a presumption of release.
• Preventive Detention – However, the law also gave judges new authority to detain defendants pre-trial based on danger to the community. This was the beginning of preventive detention in federal court.
• Consideration of Factors – The law requires judges to consider factors like family ties, employment, financial resources, and criminal history when setting bail. But it does not create a right to affordable bail.
• Appeals – It provides a process for appealing bail decisions to district and circuit courts. An experienced attorney can pursue bail appeals.

How Bail is Set

After arrest, a federal defendant appears before a judge or magistrate for an initial appearance and bail hearing. The judge considers arguments from prosecutors and defense counsel in deciding bail.

Judges have wide discretion in setting bail, but normally consider factors like:

• Flight Risk – Defendants with strong community ties may get lower bail. Those with foreign citizenship or assets abroad may be viewed as higher flight risks.
• Danger to Community – Defendants accused of violent crimes or who have a history of violence may be viewed as too dangerous for release.
• Criminal History – First-time offenders often get lower bail than those with lengthy records.
• Evidence Against Defendant – Strong evidence may indicate need for higher bail.
• Severity of Charges – More serious charges equal higher bail.

Bail can be a fixed amount, like $100,000. Or judges can order release with certain conditions, like home detention or GPS monitoring.

The Bail Decision

There are three basic outcomes from a bail hearing:

1. 1. Release on Personal Recognizance

The defendant is released without needing to post any bail, but must follow standard conditions like appearing for court dates. This is common for low-level crimes and defendants not viewed as risks.

1. 1. Release After Posting Bail

The judge sets a bail amount, and the defendant must pay it to get released. The bail money serves as security they will keep returning to court. This is common for mid-level crimes or some risk factors.

1. 1. Detention Without Bail

The judge denies bail and orders the defendant detained pre-trial. This occurs when the judge finds the defendant is too dangerous or too much of a flight risk for any form of release. Pretrial detention is becoming more common in federal cases.

Posting Bail Money

If bail is set, federal defendants have limited options for posting bond:

• Cash – The defendant or family/friends can deposit the full bail amount in cash with the court.
• Property Bond – Real estate or other valuable property can be pledged to secure the bail amount.
• Corporate Surety – An insurance company promises to pay the bail if the defendant flees. This is rarely used in federal court.

Compared to state court, it is much harder to post bail in federal cases without paying the full amount in cash or property. Federal defendants without significant assets often remain detained pre-trial.

Seeking Lower Bail

Experienced federal defense lawyers can file motions seeking bail reductions or changes in bail terms. Arguments may include:

• Defendant’s limited financial means
• Strong family/community ties
• Steady employment record
• No prior failure to appear in court
• No prior convictions or arrests
• Charges overstated by prosecution

If the judge denies a bail reduction, the lawyer can pursue an emergency appeal to district and circuit courts. But bail appeals are difficult to win without clear abuses of discretion.

Violating Bail Conditions

Any violation of bail conditions can cause bail to be revoked resulting in detention. Common violations include:

• Failure to Appear in Court – Missing a court date often leads to immediate bail revocation.
• New Crimes – Committing a new offense while on pretrial release may result in bail revocation.
• Contacting Victims/Witnesses – Communication bans are common bail conditions.
• Drug/Alcohol Use – Sobriety and drug testing are often required.
• Travel Outside Jurisdiction – Many defendants are restricted from leaving their city or state.

An experienced attorney can advise on strictly following all conditions to avoid detention.

Getting Bail Money Back

If the defendant adheres to all conditions and appears for all court dates, the bail money or property is returned at the end of the case. However, if the defendant is convicted and sentenced to prison, the money may be kept and applied to pay fines, fees and restitution.

Using Bail Bonds

While federal bail bonds are not allowed, they are an option in state court cases. A state defendant only has to post about 10% of the total bail amount. A bail bondsman posts the rest, for a non-refundable fee. If the defendant fails to appear, the bondsman is on the hook for the remaining 90% of bail.

Federal bail is more restrictive with fewer options. Having an experienced attorney argue for pretrial release or reasonable bail is critical. The complex federal bail system can seem daunting, but taking a proactive approach with skilled legal counsel can help lead to the most favorable outcome.