Attorney Eric D. Puryear

Bail and Pretrial Release (or Detention) in Federal Criminal Cases

Puryear Law » Legal Blog » Federal Criminal Law » Bail and Pretrial Release (or Detention) in Federal Criminal Cases

In the Federal court system, the process through which a defendant is granted or denied pretrial release is governed by 18 U.S.C. § 3142. These Federal rules concerning pretrial release or detention are much different than the state court bail rules in Illinois or Iowa.

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In many criminal cases in state court, the Illinois Circuit Court or Iowa District Court judge or magistrate will set a money bond amount that must be posted in order for the defendant to be released while the case is pending.  The Federal court system generally does not have money as the determining factor as to whether a person will be released during the pendency of their Federal criminal case.  Instead, the preferred course of action by the Federal Magistrate or Federal District Judge is set forth in 18 U.S. Code § 3142 (b), which states as follows:

The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

In essence, that section of the United States Code directs that a person be released while their Federal case is pending unless that person is believed by the court to be a flight risk or danger to the community.

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Where the court does not believe that the release of a defendant as discussed above will properly protect the community and ensure the defendant returns for future court dates, then the court is next to consider releasing the defendant subject to certain conditions, as set forth in 18 U.S. Code § 3142 (c)(1)(B):

Subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person—

(i) remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the judicial officer that the person will appear as required and will not pose a danger to the safety of any other person or the community;

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(ii) maintain employment, or, if unemployed, actively seek employment;

(iii) maintain or commence an educational program;

(iv) abide by specified restrictions on personal associations, place of abode, or travel;

(v) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

(vi) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency;

(vii) comply with a specified curfew;

(viii) refrain from possessing a firearm, destructive device, or other dangerous weapon;

(ix) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), without a prescription by a licensed medical practitioner;

(x) undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;

(xi) execute an agreement to forfeit upon failing to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required, and shall provide the court with proof of ownership and the value of the property along with information regarding existing encumbrances as the judicial office may require;

(xii) execute a bail bond with solvent sureties; who will execute an agreement to forfeit in such amount as is reasonably necessary to assure appearance of the person as required and shall provide the court with information regarding the value of the assets and liabilities of the surety if other than an approved surety and the nature and extent of encumbrances against the surety’s property; such surety shall have a net worth which shall have sufficient unencumbered value to pay the amount of the bail bond;

(xiii) return to custody for specified hours following release for employment, schooling, or other limited purposes; and

(xiv) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.

Federal law further provides in 18 U.S. Code § 3142 (c)(2) that “The judicial officer may not impose a financial condition that results in the pretrial detention of the person,” which is, again, quite different than the money bond that is required by most states as a condition of release.

At first glance, those provisions of Federal law suggest that many people will be released while awaiting trial on their Federal criminal charges.  However, that is not really the case, as only about 36% of people facing federal charges are released while awaiting trial.  That is because other provisions of Federal law create a presumption that certain charges mean a person should not be released while awaiting trial.  For example, drug charges where a person is facing a lengthy prison term, certain immigration violations, robbery, and a whole hosts of other charges have such a presumption in favor of detention.

Since the Federal government does not operate its own jails to house defendants awaiting trial, it contracts with county jails to house its defendants.  The county jail selected depends upon a variety of factors, including which nearby (or distant) jails the Federal government has contracted with.  Thus, a person who does not obtain pretrial release in the Federal court system may find themselves being held in a jail dozens or even hundreds of miles away from home, or moved frequently between jails.  That can make contact with family difficult, which only adds to the stress of the situation.

For a person who is facing a Federal criminal case, handing the detention hearing the right way can be the difference between release and a lengthy stay in custody while awaiting trial.  A person in such a situation is well advised to seek an attorney who handles Federal criminal defense cases at once.  At Puryear Law, we have represented clients charged with a wide variety of Federal crimes in the Federal Courts that sit in both Iowa and Illinois.

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