Bail In The Federal Courts

The Bail Reform Act of 1984, as amended (“the Act”), Title 18, United States Code, Section 3141 et seq., governs the release and detention of federal criminal defendants before trial. The Act “establishes standards and procedures governing both the pretrial phase of a case, the period between conviction and sentencing, and the period during the pendency of an appeal by either side.”

Initially, the defendant will be interviewed by Pre Trial Services, which is a part of the court that handles acquiring information on the defendant and producing a report for the court’s review. The Initial Appearance or Initial Hearing is the first court appearance where a federal criminal defendant’s release or detention pending trial is determined by a judicial officer. 18 U.S.C. § 3141. At the Initial Hearing, the judicial officer may impose a condition or combination of conditions that should reasonably assure the appearance of the defendant “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.” 18 U.S.C. § 3142(b).

The presiding judicial officer may also conduct a Detention Hearing to determine whether any condition or combination of conditions of release will apply. 18 U.S.C. § 3142 (c) and (f). These conditions may include a combination of any of the following: third party custodian; employment requirements; educational requirements; restrictions on personal associations or travel; compliance with a curfew; refraining from the excessive use of alcohol; refraining from the unauthorized use of narcotic drugs or controlled substances; undergoing medical, psychological or psychiatric treatment; execution of an agreement to forfeit property upon failure to appear; execution of a bail bond with solvent sureties; electronic monitoring; and, any other reasonable condition.

The Act contains 13 specific conditions of release which the Court may impose separately or in combination if it finds that a criminal defendant’s personal recognizance or unsecured appearance is inadequate. Some of the factors considered by the Court in detention and release proceedings include: the nature of the offense charged, such as whether the charged offense is a crime of violence or involves narcotics; the weight of the evidence; the personal history and characteristics of the person, such as character, family ties, employment, criminal history; and dangerousness, including whether the person poses a threat to others or the community. 18 U.S.C. § 3142(g)(1)-(3). The Court may also consider other factors, such as the source of any property offered as collateral to secure a bond. 18 U.S.C. § 3142(g)(4).

If a person is released by order of a magistrate judge, the attorney for the Government may file a motion for revocation of the order or amendment of the conditions of release. The person may also file a motion for amendment of the conditions of release. Any such motion must be filed with the court with original jurisdiction over the offense. 18 U.S.C. § 3145(a).

If a person is ordered detained by a magistrate judge, the person may file a motion for revocation or amendment of the detention order, with the court having original jurisdiction over the offense. 18 U.S.C. § 3145(b). Typically, this would entail the review of a magistrate judge’s decision by a district court judge.

In ordering the release of a criminal defendant, the Court may impose financial conditions. It may authorize an unsecured personal bond whereby the person promises to pay the Court a specified sum of money if he or she fails to appear as required. If an unsecured personal bond is authorized the person is released without deposit of cash bail or collateral and promises to pay sum of money if he or she fails to appear as required. The Court may require that a solvent co-signer, usually a family member or friend, appear where an unsecured personal bond has been authorized.

In cases where release is conditioned upon security, the person may secure a commercial bail bond or may deposit at the Clerk’s Office, subject to forfeiture for breach of a condition of release, cash or collateral. A person’s relatives or close friends sometimes post their property or act as his or her sureties.

In cases where an estate is the owner of the real property to be posted, all heirs must appear and sign the necessary court forms and other documents, as required.

At the Conclusion of the Case
At the conclusion of a case, upon the defendant’s remand to begin serving any sentence imposed, a surety may request the return of any bond-related documents deposited with the court or Pre Trial Services.

Return of cash deposited as collateral must be requested at the conclusion of a case, by written motion to the Court. Said cash will be returned only upon Court Order or some other evidence that the matter has been resolved and the defendant is either free or remanded to prison.

One thing is clear; federal criminal matters require experienced attorneys who are familiar with the law and the procedures. Contact the author if you or someone you know needs an experienced federal criminal defense attorney.