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So your probably sitting in federal detention after your initial appearance and the magistrate judge ordered you held without bond. Maybe prosecutors claimed your a flight risk. Maybe there alleging danger to the community. Or maybe your facing charges with rebuttable presumption against release. Look, we get it. Your ABSOLUTELY PANICKING about staying in jail until trial. And you should be TERRIFIED! Because federal pretrial detention rates are INCREASING and trials can be 2+ years away!
Let me explain the system designed to keep you locked up. 18 USC 3142 governs federal pretrial release and detention – it’s supposed to presume release but actually favors detention!
The law requires “least restrictive conditions” to ensure appearance and protect community! Sounds good until you see how prosecutors twist it! They claim EVERYTHING is danger to community! White collar fraud? “Continuing to defraud victims”! Drug charges? “Ongoing drug dealing”! We’ve seen prosecutors argue nonviolent defendants are dangerous!
Since 1984, federal detention rate has been steadily increasing! More defendants detained pretrial now than ever! System designed for release actually imprisons thousands of presumptively innocent people for years!
Here’s what’s really scary – federal detention means harsh conditions! Metropolitan Detention Centers, Federal Detention Centers – overcrowded, dangerous, limited visits, terrible food! Your trapped for YEARS awaiting trial! We’ve had clients spend 3 years detained before acquittal!
Prosecutors need to prove only ONE of two grounds!
Flight risk means likelihood you won’t appear for court! Factors include: ties to community, employment history, family, financial resources, passport, foreign connections! But prosecutors exaggerate everything! Own property overseas? Flight risk! Wealthy? Can afford to flee! Poor? Nothing keeping you here!
Danger to community is even more abusive! Any alleged criminal conduct = danger! Drug charges? Danger of selling drugs! Fraud? Danger of defrauding! Gun charges? Obviously dangerous! Even DUI becomes “danger to motorists”!
The standard is “clear and convincing evidence” for danger, “preponderance” for flight! But in practice, prosecutors meet burden with speculation! “Defendant MIGHT flee” becomes clear and convincing! “COULD pose danger” satisfies preponderance! We’ve seen detention based on pure conjecture!
Worst part – hearsay is ADMISSIBLE at detention hearings! Prosecutor reads police reports! Proffers “information and belief” statements! Defendant can’t cross-examine! DEA agent says “reliable informant told me defendant is dangerous” – that’s enough! Its star chamber proceedings!
Certain charges create PRESUMPTION of detention – you must prove you should be released!
Presumption applies to: serious drug offenses (10+ year maximum), firearms offenses under 18 USC 924(c), terrorism charges, crimes against minors! Burden SHIFTS to defendant to prove your not flight risk or danger!
This presumption is DEVASTATING! Normal burden on prosecutor becomes burden on you! Must produce evidence rebutting both flight risk AND danger! Defendants facing presumption detained at much higher rates – over 80% detained versus 35% without presumption!
How do you rebut? Show strong community ties, stable employment, family support, health issues requiring treatment, conditions that would ensure appearance! But judges are SKEPTICAL! They think “if Congress created presumption, must be good reason”! We’ve seen strong rebuttal packages rejected!
Drug quantity for presumption is LOW! Conspiracy involving 1kg cocaine triggers it! That’s street-level dealing amounts! Kingpins AND street dealers face same presumption! 100 grams of heroin? Presumption! Its net that catches everyone!
Federal release conditions are INCREDIBLY restrictive!
Standard conditions: appear for all hearings, not commit crimes, surrender passport, restrict travel! Seems reasonable until additional conditions pile on!
GPS ankle monitor – 24/7 electronic tracking! Costs defendant money! Malfunction? Violation! Battery dies? Warrant issued! Home detention – can only leave for court, lawyer, medical! Essentially house arrest! Curfew – home by 8 PM every night! Miss curfew once? Detention!
Third-party custodian requirements are BRUTAL! Must find someone to supervise you, be responsible for your appearance, put up their property! Elderly parents mortgage homes as bond security! Flee and they lose everything! Its hostage-taking!
Substance abuse testing, mental health treatment, location monitoring, firearm prohibitions, no-contact orders, employment requirements – each condition creates violation opportunity! Fail one drug test? Back to detention! Miss counseling appointment? Violation! The conditions are designed for failure!
Magistrate detention orders can be appealed to district court!
Must file motion for revocation or amendment of release order – basically asking district judge to overrule magistrate! Hearing usually held within days! Can present new evidence, new conditions package, changed circumstances!
But here’s the problem – district judges are DEFERENTIAL to magistrates! “Magistrate saw witnesses, evaluated credibility, I defer to that finding”! Overturning magistrate detention is difficult! We’ve won some by presenting information magistrate didn’t have – medical conditions, family emergencies, strengthened bond package!
District court detention orders appealable to Circuit Court! Appeals of detention orders take priority and must be decided promptly! But “promptly” still means weeks or months! Your detained entire time!
Circuit appeals are HARD! Standard is abuse of discretion! Must show district court’s decision was unreasonable! Not just wrong – UNREASONABLE! Very deferential standard! Circuit rarely reverses detention! We’ve seen obviously wrong detentions affirmed!
Can file multiple release motions based on changed circumstances! New evidence of innocence, medical emergency, strengthened conditions! Some defendants file monthly release motions! Judges get annoyed but its constitutional right!
Violations lead to IMMEDIATE detention!
Pretrial services officer reports violation, warrant issued, your arrested and brought before magistrate! Prosecutor argues detention now appropriate! Burden on YOU to show you should remain released!
Technical violations common – missed check-in, GPS malfunction, curfew violation, positive drug test! Even minor violations used to detain! We’ve seen defendants detained for being 5 minutes late to check-in because traffic!
New criminal conduct = automatic detention! Even arrest without conviction enough! DUI while on release? Detained! Shoplifting? Detained! Traffic ticket becomes detention opportunity! Prosecutors watch release defendants for ANY slip-up!
Violation hearing is quick – same day or next! No time to prepare! Pretrial services testifies about violation! You explain! Judge decides immediately! Once detained for violation, almost IMPOSSIBLE to get re-released! Your stuck until trial!
Federal pretrial detention can last YEARS!
Speedy Trial Act requires trial within 70 days of indictment – but excludable delays pause the clock! Pretrial motions, discovery disputes, competency evaluations, continuances – ALL excludable! We’ve seen cases where 3 years pass with only 40 “non-excludable” days!
Average pretrial detention in federal system is 6-12 months – but complex cases go 2-3 years! White collar fraud trials? 3+ years detained! RICO cases? 4-5 years! Your sitting in detention longer than some sentences!
Sixth Amendment speedy trial right provides some protection – but standard is VERY flexible! Courts balance length of delay, reason for delay, defendant’s assertion of right, prejudice! “Complex case” excuses long delays! We’ve seen 4-year pretrial detention found constitutional!
The psychological toll is DEVASTATING! Missing children growing up, losing jobs and homes, marriages ending, health deteriorating! We’ve had pretrial detainees attempt suicide! Some plead guilty to sentences LESS than time already served just to end detention!
Serious medical conditions CAN support release!
Terminal illness, cancer requiring treatment, serious heart conditions, disabilities requiring specialized care – all potentially support release! Federal detention facilities often lack adequate medical care!
But government fights medical release! Claims defendant exaggerating! Argues BOP can provide treatment! Says release despite health is “special treatment”! We’ve seen cancer patients denied release for chemotherapy!
COVID-19 created some openings – detention facilities were hotspots! Some defendants got compassionate release during pandemic! But now courts less sympathetic! “Vaccines available” ends that argument!
Must present detailed medical evidence – doctor affidavits, treatment records, prognosis! Show detention threatens life or causes serious deterioration! Even then, judges often impose strict conditions – hospitalization only for treatment, return to detention after!
Look, we’re not your typical lawyers who show up at detention hearings unprepared. We’re former federal prosecutors who know EXACTLY what magistrates and district judges want to see in conditions packages!
We understand how to rebut presumptions – which evidence matters, which arguments work, how to present strongest case! We know which third-party custodians judges trust! We can craft creative conditions packages judges actually accept! Most importantly, we fight detention appeals to Circuit and win releases others couldn’t!
Other lawyers accept detention as inevitable! File perfunctory motions! Don’t aggressively fight! Give up after one denial! We file motion after motion, appeal after appeal, presenting new evidence and conditions until we WIN release! We’ve gotten “un-bondable” defendants released!
Call us RIGHT NOW at 212-300-5196
Detention hearings happen IMMEDIATELY – within days of arrest!
Former federal prosecutors – Bail specialists – Available 24/7!
Don’t wait to fight detention! Initial hearing is CRITICAL – first impression matters! Strong presentation at first hearing can mean release! Weak presentation means years detained! Have conditions package ready, third-party custodians lined up, medical evidence gathered!
Remember – federal pretrial detention isn’t temporary inconvenience, its years of imprisonment before conviction. One weak detention hearing, one unprepared lawyer, one missed argument can mean losing job, family, health while presumptively innocent. You need someone who’s won hundreds of detention fights. Call us NOW before you spend years waiting for trial in federal lockup!
Very diligent, organized associates; got my case dismissed. Hard working attorneys who can put up with your anxiousness. I was accused of robbing a gemstone dealer. Definitely A law group that lays out all possible options and best alternative routes. Recommended for sure.
- ROBIN, GUN CHARGES ROBIN
NJ CRIMINAL DEFENSE ATTORNEYS