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THE FEDERAL BAIL PROCESS EXPLAINED
After an arrest on federal charges, “getting out on bail” or “bonding out” is top of mind for those under arrest. They need to get out on bail so they can better contribute to their legal defense and fight the government’s charges.
What exactly is bail?
Bail is the amount a criminal defendant must post to be released from custody after an arrest. In the form of cash, bond, or property, bail ensures that the defendant returns to court when ordered to do so. Failure to appear allows the court to keep the bail and rearrest the defendant.
In addition to posting a bail amount, courts also give criminal defendants certain conditions of release, hence the term conditional bail.
Conditional bail mitigates a defendant’s flight risks by imposing additional conditions of release. An example is restricting the defendant’s travel outside the district. If the defendant fails to comply with any conditions, the court can revoke bail and return the person to jail during pretrial.
Knowing what to expect from the federal bail process can help people achieve a better outcome.
Immediately after the arrest in a federal case, most defendants will remain in custody to await their first court appearance before a federal magistrate judge.
At that first hearing, the defendant learns the charges against them. Also, the federal prosecutor informs the court whether they recommend that the defendant get released and, if released, under what conditions. Or, the federal prosecutor can instead take the position that the defendant should remain in custody until the case is resolved, under pretrial detention.
Bail is simply the amount of money defendants must post to be released from custody until their trial.
The federal bail process differs from the state bail system. Unlike bonds in state courts, federal bonds are not automatically set. Instead, the defendant appears before a federal magistrate judge for a specific bail determination.
States use a bail schedule. Federal courts do not use a bail schedule. Instead, pretrial services investigate a defendant’s criminal history, employment, family, community ties, and financial background and give the magistrate judge their bail recommendation.
Pretrial detention, or remand, refers to detaining a person after being arrested and charged until trial. A person detained or remanded for pretrial remains in custody in a jail, prison, detention center, or under house arrest.
The US problem with mass incarceration begins during pretrial. According to the Prison Policy Initiative, nearly half a million people in the US are currently in detention while on pretrial. These people are awaiting trial and are still legally innocent under the US Constitution.
Many people on pretrial detention cannot afford cash bail; others get remanded due to a probation, parole, or immigration hold. The number of people in jail during pretrial has nearly quadrupled since the 1980s.
- Percent of people in city and county jails being held pretrial: 74% +
- Median bail bond for a felony: $10,000 +
- Average yearly income of a man who can’t afford bail: $16,000. For women: $11,000 +
- Percent of women who can’t afford bail who have minor children: 66% +
- Percent of pretrial population that is Black: 43% +
- Share of jail population growth since 1983 caused by pretrial detention: 63% +
- Annual national cost of pretrial detention: $13.6 billion +
Types of Bail Bonds Used in Federal Court
The types of bail bonds most commonly used in federal court are signature bonds and property bonds. Federal courts do not accept bail bonds in the same way that state courts do.
A signature bond is an unsecured bond usually co-signed by a responsible third party. With a signature bond, the defendant, or a financially responsible person on behalf of the defendant, agrees to pay the court a specific amount of money if the defendant does not appear for court proceedings or violates the conditions of release.
Pro-Tip: Pretrial release based on a signature bond allows the defendant to promise to return for the next scheduled court appearance without having to put forward any money or financial collateral. The court sets a bail amount, and the defendant or a responsible family member or third party promises to pay the bail amount to the federal government if the defendant fails to appear in court as required.
The signature bond is now a widespread practice in federal court, replacing the need to pay bail bondsman “bailing” someone out of jail.
The other type of bond used in federal court is a property bond, meaning a bond secured by real estate or other property. Since the process of securing a property bond with real estate can take time, federal courts will often release a defendant based on the signature of a responsible third party while the process of posting the property bond gets finalized.
In short, federal courts primarily use the property bond or the signature bond for pretrial release purposes, even allowing defendants to sign for themselves in some cases.
Bail Negotiations And Recommendations
The magistrate judge considers a prosecutor’s bail recommendations to determine whether to grant pretrial release and under what conditions. Many factors go into a federal prosecutors’ decision to recommend a person’s release on pretrial.
Notably, prosecutors often negotiate with the defendant’s criminal defense counsel to agree on release and bail conditions, if possible. Ideally, prosecutors and defense counsel can present a joint recommendation to the magistrate judge about a person’s pretrial release conditions.
Legally, pre-trial detention is only appropriate where there is a reasonable suspicion that the person committed a crime and where detention is necessary and proportionate to prevent them from absconding, committing another crime, or interfering with the course of justice.
Ultimately, the federal magistrate judge decides to remand or release, and under what conditions. When determining bail conditions, the goal is to impose the least restrictive conditions.
Among the factors that prosecutors and defense counsel discuss when negotiating a person’s pretrial release or bail conditions are:
- the nature of the charges (certain charges, such as particular drug or gun charges, carry a presumption of no bail);
- the defendant’s risk of flight;
- the danger the defendant poses to the community;
- the defendant’s criminal history;
- the defendant’s ties to the community;
- issues surrounding the defendant’s passport status and foreign travel.
When negotiating, prosecutors and defense counsel both understand that, by law, the court must release the defendant on own recognizance unless:
- the release will not reasonably assure the defendant’s continued appearance in court, or
- the release will endanger the safety of others in the community
If the magistrate judge imposes conditions of release, the conditions must be the least restrictive conditions that will reasonably ensure the defendant’s appearance in court and the protection of others.
Common Pretrial Release Conditions for Bail in Federal Cases
Some common conditions of release defendants can anticipate include:
- Electronic monitoring (such as ankle GPS monitor);
- Court-ordered mental health evaluation;
- Court-ordered mental health treatment;
- Surrender of passports;
- Restricted travel outside of the federal district;
- Surrender of any firearms;
- Drug and alcohol testing;
- Maintain gainful employment;
- Maintain curfews;
- No association with co-defendants;
- No association with certain people or institutions;
- Other specific restrictions on a case-by-case basis.
The Pretrial Interview
After an arrest but before the defendant appears in court, a pre-trial officer conducts a pretrial Interview. The pretrial officer interviews the defendant and obtains background information, including family members, employment, education, and finances.
Under the Fifth Amendment of the US Constitution, the defendant does not have to answer any questions about the alleged crime. The pretrial officer compiles a report summarizing all available information, shares it with the court, and recommends detention versus pretrial release. Judges place a lot of weight on the pretrial officer’s report.
The Detention Hearing
At the Detention Hearing, the court considers the findings of the pretrial officer and examines on the record whether the defendant is a flight risk or a danger to the community, along with other factors outlined in the Bail Reform Act, 18 USC §3142.
Under the Bail Reform Act, the factors a judge must consider are:
- the nature and circumstances of the offense,
- the nature of the evidence against the defendant,
- the defendant’s family ties,
- the defendant’s physical and mental health status,
- the defendant’s employment status;
- the defendant’s financial resources,
- the defendant’s community ties,
- the defendant’s history of drug or alcohol abuse,
- the defendant’s criminal history,
- any failure to appear to prior court proceedings,
- the danger the defendant may pose to others in the community
- whether the defendant committed the new crime while on probation or supervised release.
Under the Bail Reform Act, courts should not require excessive bail from a criminal defendant. Indeed, the Bail Reform Act presupposes that people will be released on their own personal recognizance or an unsecured appearance bond unless such release will not reasonably assure the person’s appearance, or will endanger the safety of others in the community.
Release on conditions has become the norm in the federal system, even though release on conditions should be a backup option by law.
Conditional bail or release on conditions is appropriate only after the magistrate judge determines that such conditions are needed to ensure the defendant will appear in court or ensure the safety of others in the community. Critics argue that many release conditions routinely imposed are unnecessary to achieve the goals outlined in the Bail Reform Act. Still, many people out on pretrial decide not to argue about release conditions and focus instead on the battle defending against the criminal charges.
Pro-Tip: If the magistrate judge imposes unreasonable pretrial release conditions, the defendant may appeal to the District Court Judge to whom the case is assigned.
Pretrial detention should not be presumed. It is appropriate only if “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.”
Still, certain crimes carry a presumption that the accused should not get bail.
Under §3142 (e)(3), the Bail Reform Act lists those offenses which carry a “presumption of detention,” including:
- drug cases with a maximum penalty of ten (10) or more years of incarceration,
- use of a firearm in connection with drug charges,
- acts of terrorism,
- human trafficking, and
- most offenses against minors.
The stated goal of the federal bail process is to hold pretrial defendants under the least restrictive conditions possible. Thus, obtaining pretrial release in a federal case is possible, and the federal bail process is relatively straightforward.
In fact, in many white-collar cases, pretrial release on bail can happen quickly. In many white-collar cases, defendants arrested early in the morning can go before a magistrate judge and return home on bond the same day or by the next day.
Bail secured by a property bond can take several days or weeks to fully document. Even then, magistrate judges will often allow people to go home (with or without electronic monitoring) while the paperwork to formally post the property bond gets completed.
After successfully getting pretrial release from custody, most white-collar defendants will likely have a list of conditions of release to follow. Remaining out on bail during pretrial will depend on the person’s careful compliance with all the conditions of release.