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Federal Bail Process

January 2, 2020

If the police arrest an individual for committing a Federal offense, which is an act that is made illegal by U.S. federal legislation, he or she will be brought before a Federal Magistrate Judge. The Federal Magistrate Judge will tell the defendant what are the charges in his or her case. A bail amount will then be set at an amount that is considered to fit the details of the case and background of the defendant. There is variability in the amount, but according to the 6th Amendment of the US Constitution, the amount of bail should not be at a harsh and unjustified level.

There was a Bail Reform Act of 1984, which can be viewed at https://www.fjc.gov/sites/default/files/2012/BailAct3.pdf, which does not allow for a bail amount to be set any higher than what will assure the appearance of a defendant in court. The resources, connection, and past actions of a defendant need to be taken into account when determining bail. An additional consideration in setting a bail amount is whether the defendant poses a criminal risk to the public. There are details on what a judge must consider in Title 18, United States Code, Sections 3141-3143 that can be viewed here: https://law.justia.com/codes/us/2011/title-18/part-ii/chapter-207/section-3141.

At the defendant’s arraignment, which is a court proceeding where a criminal defendant is told formally of the charges against him or her, the court must either detain the defendant, temporarily detain the defendant depending on particular circumstances, release the defendant based on certain conditions, or release the defendant. Because of the Bail Reform Act of 1984, the judge must release the defendant if the judge does not believe that releasing him or her will cause him or her to not show up for the trial of the risk the safety of the community.

If the judge sets any conditions for release, the judge must put the least amount of restrictive covenants that will assure with a good possibility that the defendant will show up at court and not endanger others in the community. An experienced attorney will be able to make sure that the restrictions set upon the defendant are least harsh as possible. There can be conditions set by the judge to release the defendant with bail.
Some of those conditions may include: (1) limits on travel, personal associations, and manner of living (2) not committing any additional crimes that endanger the community (3) staying in the custody of an individual who agrees to supervise the defendant (4) employment (5) not contacting any witnesses or victims (6) reporting to police on a regular basis (7) having a curfew (8) entering into an education program (9) posting a bond with property (10) not using a firearm, alcohol, or drugs (11) surrendering passport/visas (12) drug testing.

If a defendant breaks any of the restrictions, the judge can order the defendant back into custody and also add additional charges for deliberately violating a judge’s order. Violating a judge’s order also would also not help the circumstances of the case if additional charges are added. Pre-trial release is not guaranteed as a judge can have concerns about endangering the community, witnesses, and victims, particularly so if the defendant has access to weapons. The chances of obtaining bail in federal court are much smaller than that in state court. The leniency in federal bail is somewhat similar to that if someone is convicted for a federal crime. If you are convicted in federal court, you will, in general, serve 85% of your sentence, while in state court, you will generally only serve 50% of your sentence. There is in general less leniency when it comes to federal processes and convictions.

To explain the bond process, one needs to understand secured vs. unsecured bonds. A secured bond involves a third party putting down money or other forms of collateral in order to secure the release of a defendant. In general, the bail amount is more than a person has, so a person will have to pay a bondsman a premium in order to obtain the money needed to secure bail. The premium for federal cases at around 15% of the bail amount, in general, is higher than the premium needed for state cases.

An unsecured bond is when a defendant promises that the defendant will hold court obligations by signing a personal surety bond. For an unsecured bond, there are no financial obligations up-front. Bails and bonds cannot be paid with money obtained from illegal sources. If it is determined the money is from illegal sources, the defendant will not be released. Having experienced counsel is crucial to a case and should be sought before any bail hearing or arraignment. Experienced counsel can help one obtain lower bail and help prepare family and friends for a case and successfully navigate the federal bail process.

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