When a person is arrested for a crime, they are taken into custody to await trial. In many cases, the arrestee may be released from custody on bond while the trial is pending. As a condition of their bond, they may have to pay bail and abide by other terms and requirements regarding their pretrial release.
18 U.S.C. § 3142 defines the federal government's laws for the “release or detention of a defendant pending trial,” and the process follows certain steps and procedures.
Initial Appearance
Soon after being arrested, you will appear in court, and a magistrate judge will present you with your charges and advise of your rights. You are also allowed to have an attorney present, and the court can appoint one if you do not have legal counsel.
During your initial court appearance, the judge will ask the prosecutor if they recommend you be detained until your trial or released from custody while your trial is pending. If the prosecutor supports your release, the judge can set your bail and bond conditions. The prosecutor may also recommend you remain in custody because of your flight risk or the danger you pose to the community, among other factors.
In either case, the judge will review your case to determine whether you should be released from custody and, if so, under what conditions. Your detention hearing, or bond hearing, may take place during your initial appearance or shortly thereafter. You should have an attorney present to help you make informed decisions and advocate on your behalf.
Pretrial Interview
Before your initial court appearance, you will be interviewed by a pretrial services officer who is employed by the court. The officer will confirm your identity and ask you questions about your family, work, and other personal information. They will then verify the information by calling third parties who can corroborate the information. They will also check your background and criminal history.
You have a constitutional right not to answer questions about the alleged offense or say anything to incriminate yourself during this interview. You also have the right to speak with an attorney before answering any questions.
After completing the interview, the officer will then provide a copy of the report to the court, and it will contain recommendations regarding your pretrial release and its conditions. The pretrial report typically carries a lot of weight with the court in making these decisions.
The Detention Hearing (Bond Hearing)
During the detention hearing, the magistrate judge will review the pretrial report and consider recommendations and arguments from the prosecution and defense. The judge will base their decision on several factors:
- The risk you may not return to face trial (flight risk)
- Your potential danger to the community
- The nature and circumstances of the crime
- The weight of evidence against you
The judge may also consider factors regarding your history and character. For instance, they will review your criminal history, specifically prior failures to appear in court, as well as whether you were on probation or parole when you allegedly committed the crime.
They will also look into your character as a person by assessing your family ties, ties to the community, any history of drug or alcohol abuse, and whether you are currently employed or going to school.
Before the hearing, your attorney will likely negotiate with the prosecution about the terms and conditions of your release to help you get more favorable results. They may also advocate for you during the hearing. The judge is under no obligation to follow the prosecution's recommendations regarding your pretrial release, and they may make their own decisions at the hearing.
Release Conditions and Bail
After considering the evidence and recommendations, the judge may refuse your release, and you will have to remain in custody until your trial. They may also order you to be temporarily detained until other legal actions can be taken against you, such as extradition or deportation.
Conversely, the judge may grant your release and set bond conditions. A judge can release you on recognizance or an unsecured appearance bond. This means you pose no threat to the community or flight risk, and you promise to appear for your scheduled trial date.
The judge may also grant your release but impose certain conditions or requirements. Some of these conditions may include the following:
- Wearing a GPS monitoring device
- Attending court-ordered mental evaluations or treatment
- Attending court-ordered drug or alcohol therapy
- Surrendering your passport or promising not to travel to restricted areas
- Not associating with certain people, particularly co-defendants
- Maintaining gainful employment
The judge will set your bail amount if they grant your release. Bail is the amount of money you will have to pay to be released from custody. Unlike most states, the federal government does not use a bail schedule to determine your amount. The magistrate judge will determine the amount based on several factors, including recommendations from pretrial services.
During your release, you are not allowed to violate any of the bond's conditions, and you must appear in court on the date your trial is scheduled. If you violate the conditions or do not appear for your trial, the court will issue an arrest warrant against you.
Appeal
If the magistrate judge denies your release or imposes unreasonable conditions, you may request an appeal. The district court judge assigned to your case will review your request and make a final determination.
You may also obtain a release pending appeal under a writ of habeas corpus. In simplest terms, it prohibits a person from being wrongfully detained, and it may be used in cases where the detention violates federal laws or constitutional protections.
Additionally, circumstances may change in your life while the trial is pending, such as a deterioration of your health or sudden death in your immediate family. You may petition to have your bond conditions modified in light of any new circumstances, and this may lead to a more favorable bond determination if the court grants your appeal.
Get Help From a Federal Defense Attorney
If you or a loved one has been arrested for a federal crime, you should consult a federal criminal defense attorney as soon as possible. You will want to have an attorney present during the pretrial interview and detention hearing, and you need an attorney with experience in federal pretrial release procedures.
Attorney Joseph D. Lento has many years of experience helping clients through all stages of the federal criminal process. He can assert your rights and advocate for you during the bail and pretrial release process to increase your chances of obtaining favorable outcomes. Call the Lento Law Firm at 888-535-3686 or fill out our contact form to request a confidential consultation.
