Federal Bail and Detention Hearings: Fighting Pretrial Detention.

In federal criminal cases, the decision of whether to impose pretrial detention is governed by the federal Bail Reform Act and detailed provisions under 18 U.S.C. § 3142. A central tenet of § 3142 is that release is presumed to be appropriate unless the government can demonstrate that pretrial detention is necessary under the law. In other words, federal courts favor the least restrictive means of ensuring a defendant’s appearance and the safety of the community and other individuals.

Generally, this means that unless the government can demonstrate that no condition or combination of conditions will reasonably assure the defendant’s appearance and the safety of any other person and the community, defendants should be entitled to some form of pretrial release. With that in mind, under the Bail Reform Act, the government generally bears the burden of persuasion on whether the defendant represents a danger or is likely to flee. With regard to a defendant’s risk of flight, the government generally bears the burden of demonstrating by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the defendant’s appearance in court. To succeed on the grounds that the defendant is “a danger to the community,” however, the government must generally prove that “no condition or combination of conditions of release will reasonably assure the protection of the community or the safety of any other person and the community” by clear and convincing evidence.

With that said, federal law also includes several provisions that impose a presumption in favor of pretrial detention. For example, in certain drug offenses carrying a maximum term of imprisonment of ten years or more under the Controlled Substances Act, the Controlled Substances Import and Export Act, or chapter 705 of title 46, the Bail Reform Act establishes a rebuttable presumption of detention.

What evidence does a federal judge weigh before ordering detention?

When deciding whether to deny pretrial detention, federal judges look to 18 U.S.C. § 3142(g), which states, “The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning-” (i) the nature and circumstances of the offense and the offense(s) alleged; (ii) the weight of the evidence; (iii) the defendant’s history and characteristics; and (iv) the nature and seriousness of the danger posed by the defendant.

Under § 3142(g)(3)(A), federal judges may consider a defendant’s prior criminal history and court appearances, as well as various factors such as residence, employment, family ties, and community ties. While these are all factors that can play a role in a bail hearing, they do not necessarily favor pretrial detention. With that said, the specific circumstances and facts of each defendant’s case will differ, and all of the above can be used either in support of a defendant’s pretrial release or in favor of pretrial detention.

Along with the defendant’s criminal record, the defendant’s substance-abuse history and other characteristics can also play a role under 18 U.S.C. § 3142(g). This includes all information obtained from a defendant’s history and characteristics that can be used to prove whether the defendant has the means or inclination to commit another crime while out on bail.

When assessing the nature and seriousness of the danger to the community and other individuals, the defendant’s prior record, family and employment ties, and substance-abuse history (among other things) also come into play. Ultimately, though, the strength and number of the factors on either side of the issue should guide the defendant’s defense counsel’s approach at a bail or detention hearing. If the government has a very strong case, then the focus should remain on rebutting the risks they claim pose a danger. If, however, the government has little or no evidence to support its case, then the focus should be on challenging the government’s grounds for detention outright.

Which release conditions can address the court’s specific risks?

If a defendant is entitled to pretrial release, the federal judge will decide whether the defendant can be released on the “least restrictive” means of release while still ensuring they will appear and they will not pose a risk to the community. Here, a federal judge may decide to set conditions on a defendant’s pretrial release. A set of common examples of these conditions are:

No-Financial Bond (Unsecured Release)

An unsecured release means that the defendant does not need to post a bond in order to be released. Instead, the defendant only needs to execute an unsecured appearance bond, subject to the statutory conditions of release. A defendant who does not represent any flight risk and does not pose a risk to the community will likely be entitled to an unsecured release.

Financial Bond (Secured Release)

If a financial bond is necessary to secure a defendant’s release, then the bond is often called a secured release. In this case, the defendant will need to post a financial bond (e.g., $5,000), or, as discussed below, find a surety who can accept the bond’s financial obligations. In the case of a secured release, the bonds can be either “unsecured” or “secured.” The former does not require the defendant to deposit any collateral, whereas the latter does require a secured bond.

Surety Bond

A surety bond is similar to a secured release, and is often used in tandem with it. A surety bond is a financial bond that is obtained from a third party (e.g., a family member, a friend, or a professional surety company) who will accept the financial obligations in order for a defendant to be released while out on bail. Similar to a financial bond, a surety bond is either secured or unsecured. Again, a secured surety bond requires the collateral to be deposited with the court, whereas an unsecured surety bond does not require any collateral to be deposited.

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When must the federal detention hearing occur, and how long can it last?

The Detention Hearing

The federal detention hearing, also known as the pretrial detention hearing, typically takes place shortly after the arrest. In many cases, it takes place immediately upon the person’s first appearance before the judicial officer. In some instances, a federal judge will even conduct the detention hearing during the defendant’s initial appearance at the district court.

Continuance of the Hearing

In some cases, a federal prosecutor may seek a continuance of the defendant’s detention hearing. The federal Bail Reform Act allows the government to seek a continuance of up to three days; however, both the government and the defendant (through counsel) can seek a continuance by motion to the judicial officer for additional time. For example, federal defendants can seek a continuance of up to five days in cases where they cannot get to the district court to appear in person or their counsel needs more time to review the prosecution’s evidence.

Length of the Hearing

In general, it takes several hours for a federal judge to hear all sides of the case and reach a final decision with respect to the defendant’s detention or release. With that said, some detention hearings can also take more than one day. While rare, some long-form detention hearings can span several days. With that in mind, we typically assume it will take at least several hours to ensure that we have presented a complete and comprehensive defense on behalf of our clients, and we will work to ensure that the evidence is clearly presented in a timely manner.

How can a detention order change after the first hearing?

If a defendant is ordered to remain in federal custody after their pretrial detention hearing (or if a magistrate judge enters a detention order), then they have the option to seek review of this order. This option is permitted under 18 U.S.C. § 3145, and it can be done regardless of the reason for the detention order.

When a magistrate judge orders detention, the defendant may seek review by a district judge. When a magistrate judge orders detention, the district judge will review the order “de novo,” which permits an independent district-court detention determination. The district judge will review the evidence presented in the magistrate judge’s hearing, and they can also consider additional evidence as well.

Unfortunately, the reality of the federal justice system is that federal cases may keep defendants detained for months or longer. If a federal judge decides to detain a defendant, then the defendant will remain in custody unless the detention order is modified or revoked, the defendant is otherwise released under the Bail Reform Act, or the defendant is acquitted. As a result, challenging the grounds for detention (or appealing a detention order) as soon as possible is extremely important.

As we have discussed, there are various factors that federal judges consider when deciding whether to detain a defendant pretrial. For defendants facing detention, it is important to address the issue before the court as soon as possible. Whether this means presenting evidence that the defendant will not pose a risk, or it means appealing a detention order under 18 U.S.C. § 3145, the defendant’s (or his or her attorney’s) goal should be to convince the federal court that pretrial detention is either not legally mandated or is not warranted under the circumstances at hand.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.