Getting Bail in Federal Court

Kevin Barron

Written by

Federal Crime Lawyer

Posted January 18, 2011

Your Lawyer

Get an experienced federal courts lawyer. Make sure he is known for defending federal prosecutions and ask him how many cases he has defended in your federal court. You can check on a lawyer's experience by signing up for the PACER case system in the Federal Courts. Or you can have your lawyer query his own name for you on PACER. The link is http://pacer.uspci.uscourts.gov/. If your lawyer has been accepted for the Criminal Justice Act Panel in your District to take high paying appointed federal cases, this is a good sign. In most Districts, the best federal criminal defense lawyers are ones who have worked for the Office of the Federal Defender or they are members of the Criminal Justice Act Panel. Each District Court website maintains a list of names of members of its Criminal Justice Act Panel. These and lawyers of national reputation are the ones to hire.

Initial Appearance

Before your Initial appearance with a magistrate, your attorney should have obtained a copy of the indictment or complaint, contacted the Assistant US Attorney AUSA and arranged for an interview with the Pre-trial Services Officer (PTSO). Even if the AUSA is consents to your release with or without conditions, you will need to submit to an interview with the PTSO. The PTSO asks standard questions from a script. The interview is not supposed to include questions about offense conduct or your criminal record. Do not answer such questions if they are asked. If you are not a legal resident or there are questions about your identity, you may chose not to submit to such an interview but you will be detained. The purpose of this interview is to write a report for the judge or magistrate on whether you are an appropriate candidate for release. The two main issues of the report are whether you are a flight risk or there is clear and convincing evidence you are a danger to the community.

Bail Hearing

You may be detained for three days pending your bail hearing. The government usually requests the three day extension to prepare for the bail hearing. Remember that your release is not automatic. There are presumptions under the Bail Reform Act in certain cases involving controlled substances offenses violent crimes and offenses committed on release. These presumptions, however, are easily overcome and the defendant needs to offer very little evidence to push the burden to the government. The issues for hearing are called flight risk and dangerousness. The government needs to show that the flight risk is serious, not merely speculative or possible. Dangerousness needs to be proven on a high standard of proof called clear and convincing evidence. As a practical matter, many defendants has criminal records and can be shown to present some degree of flight risk or dangerousness. This does not prevent release as long as there are conditions to allow it.

Release on Conditions

The percentage of defendants being released varies from District to District, but it is usually more than 50%. Release with minimal conditions usually involves an unsecured bond. Other, more restrictive conditions can include a curfew, third-party custody, cash bond or real property surety. Pre-trial Services Officers often recommend electronic monitoring. Consider this option carefully because there are serious draw backs. Most electronic monitoring involves confinement to your home all the time or during non-working hours. There is no credit against a future sentence for time spent on EM. If you do not think you will win at trial and you are facing a sentence of incarceration, the time spent cooped up at home can feel like jail time. Most jurisdictions will modify conditions of release after 90 days if there are no incidents on electronic monitoring. Cash bail is an option, but it is not as important an option for most defendants in federal court as release on other conditions.

Appeal from the Magistrate to an Article III Judge

The bail determination is a matter of great subtlety. Sometimes, minor drug offenders detained as a danger while persons with long ties to violent organized crime are admitted to bail. Such determinations may seem inconsistent but they are often entirely corrected under a comprehensive determination of the risk factors, the personal circumstances of the defendant and the available means of assuring bail violations will not occur. If the initial bail hearing does not result in an order release, seek review and reconsideration from the Judge.

Additional Resources

See 18 USC Sec 3142.

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