Pretrial Release in Federal Criminal Cases

What is pretrial release?

Pretrial release means that while federal charges are pending, a defendant can remain out in the public rather than detained in jail or prison. Ultimately, a judge or magistrate must decide if a defendant will be permitted to be at home while the case is pending or if they will have to stay detained until the case is resolved. A court date is scheduled early in the case, and the government and defense either agree to release or there is a hearing whereat both sides produce witnesses and evidence bearing on the question of release pending trial. Normally, the call regarding pretrial release is made by a federal magistrate because the trial judge has not yet been assigned at this early stage.

Pretrial Release in Federal Criminal Cases

In most cases, an astute, federal criminal defense lawyer will point out that the Bail Reform Act of 1984 favors the granting of bond. However, there is a “rebuttable presumption” in favor of detention if the crime charged is a controlled substance offense punishable by 10 years or more or if it involves terrorism, firearms, and some other specified offenses. Although there is a presumption that detention should be ordered, if the court finds that there are conditions of bond that would both assure the court that the defendant will appear at future court hearings and will not be a danger, release should be granted. If the government opposes release, the court will have to conduct a detention hearing.

The judge or magistrate should consider four factors:

  1. The nature of the offense and whether violence or drugs are involved;
  2. The weight of the evidence against the defendant;
  3. The history and personal characteristics of the defendant; and
  4. What danger would be posed to the community if the defendant were released.

After these factors are analyzed, the judge or magistrate decides whether there is a condition or combination of conditions of release which will reasonably assure the safety of the public and assure the defendant’s appearance in court. When the rebuttable presumption arises, it is up to the defense attorney to overcome (rebut) the presumption. It takes decades of practice for a criminal defense attorney to become highly effective at persuading courts to release clients on bond in serious cases.

Michigan Criminal Defense Attorneys

The reasons why release is important

Time in jail

The first and foremost consideration that presents itself is the time the defendant will lose from his or her life by being in jail. This is a major concern in any case, and worthy of the most zealous and compelling effort by the defense attorney. Federal cases frequently take more than a year to come to resolution. Therefore, even if a defendant is eventually exonerated or found not guilty, he or she will already have spent many months in jail.

Proof of remorse and turning over a new leaf

The second reason being allowed to be free pending trial is so important is that by the time the defendant is sentenced, he or she will have had quite a long time to prove to the judge that they are worthy of some degree of leniency. If a defendant has been locked up, he or she has had no opportunity to prove they can be law-abiding citizens in the public community at large. All such defendants would have at sentencing would be statements about how sorry they are. This may or may not be believed by the judge, and such statements are often greeted with a degree of skepticism. If a defendant has been out, perhaps working at a job, engaging in therapy or drug treatment, raising children, doing charity work, or doing any other admirable things, and he has not committed any new offenses, the judge will know such statements of remorse are true. The defendant has proven he or she is deserving of favorable consideration at sentencing and an opportunity to be rehabilitated with little or no incarceration.


Another reason being free pending trial is important is that it is far easier to meet with the defense attorney in order to discuss the evidence and strategize and prepare for trial. If a defendant is in jail, it is highly inconvenient for the attorney to have to travel to the jail, which entails bringing any evidence the attorney needs to go over with the client. The volume of paperwork, DVD’s, and physical evidence is normally quite substantial in federal cases. Additionally, federal defendants are randomly housed in one of many possible jails. These jails are invariably quite distant from the attorney’s office. The U.S. Marshal doesn’t care if the jail is close to the attorney’s office. Time spent at the jail is also limited by the visiting hours and travel time can result in higher attorney fees.

A Magistrate’s Decision to Detain a Defendant Can Be Appealed

Even if a magistrate orders the defendant be detained, a zealous and committed criminal defense attorney will know that is not the end of the story. If a magistrate orders detention, an appeal can be made to the district judge, and the defense will have another bite at the apple. The defense attorney may file a motion to revoke or amend the detention order. The detention hearing must be re-done from scratch before the district judge. The original decision by the magistrate is not supposed to carry any special weight with the judge.

Too often, “less than the best” attorneys believe it will be a waste of time to appeal to the district judge who gets the case. It is almost as if they are afraid to win. The best attorneys know that a case must be fought with full and optimistic vigor at every available stage, and doing so is never a waste of time.

Michigan Criminal Defense Attorney

Federal Defense Attorneys that Are Not Afraid to Win

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on federal felony and misdemeanor charges in United States District Courts throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.