A Defendant on Bond in Federal Court is on Pretrial Release

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What is pretrial release?

Pretrial release in federal criminal cases means that while federal charges are pending, a defendant can remain out in public rather than be 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, called an arraignment, is scheduled early in the case. The government and defense either agree to release, or there is a detention hearing at which both sides produce witnesses and evidence bearing on the question of release pending trial. Typically, a federal magistrate has made the call regarding pretrial release because the trial judge has not yet been assigned.

In most cases, an astute federal criminal defense lawyer will point out that the Bail Reform Act of 1984 favors granting a 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 involves terrorism, firearms, and other specified offenses. Although there is a presumption that the judge or magistrate should order pretrial detention, if the federal court finds that bond conditions would assure the court that the defendant will appear at future court hearings and not be a danger, then release should be granted. If the government opposes release, the court will have to conduct a detention hearing.

The judge or magistrate should consider eleven factors relative to pretrial release in a federal criminal case.

Bail Reform Act of 1984 identified several factors that the federal courts should consider when making pretrial release/detention decisions. The factors specified by the Act are:

  1. the nature and circumstances of the offense charged,
  2. the weight of the evidence,
  3. the financial resources of the defendant,
  4. the character and physical and mental condition of the defendant,
  5. family ties,
  6. employment status,
  7. community ties and length of residency in the community,
  8. record of appearances at court proceedings,
  9. prior convictions,
  10. whether, at the time of the current offense, the defendant was under criminal justice supervision, and
  11. the nature and seriousness of the danger to the community or any person that the defendant’s release would pose

After these pretrial release factors are analyzed, the judge or magistrate in a federal criminal case decides whether there is a condition or combination of pretrial release conditions which will reasonably assure the public’s safety and assure the defendant’s appearance in court on a federal criminal case. 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 severe cases.

Pretrial Release Bond Conditions and Alternatives

If a defendant is granted pretrial release, the judge or magistrate can order several conditions of bond, including:

  • Third-party custody: whereby the defendant is designated to the custody of a person who agrees to assume responsibility for supervision and report violations to the court;
  • Halfway house placement: whereby the defendant is designated to a community-based residential facility and may leave the facility for approved purposes (such as employment, education, medical treatment, and religious practices);
  • Intermittent custody: whereby the defendant is released from detention for limited time periods (such as employment and education);
  • Substance abuse treatment: whereby the defendant is required to participate in a drug or alcohol dependency program and to submit to a period of drug testing; and
  • Mental health treatment: The defendant must undergo psychological or psychiatric treatment to reduce the risk of nonappearance and danger to the community associated with his emotional or mental health.1
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The reasons why federal pretrial release is important

Time in jail

The first and foremost consideration is how much of the defendant’s life will be wasted while they sit in jail if they are not granted pretrial release in a federal criminal case. Pretrial custody is a significant concern in any case and worthy of the defense attorney’s most zealous and compelling effort. Federal cases frequently take more than a year to come to a resolution. Therefore, even if a defendant is eventually exonerated or acquitted, they will already have spent many months in jail.

Proof of remorse and turning over a new leaf

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


Another reason securing a bond and getting pretrial release in a federal criminal case is important is that it is far easier to meet with the defense attorney to discuss the evidence and strategize and prepare for trial. If a defendant is in jail, it is highly inconvenient for the attorney to travel to the jail, which entails bringing any evidence the attorney needs to go over with the client. The volume of paperwork, DVDs, and physical evidence usually is 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 to be detained, a zealous and committed criminal defense attorney will know that is not the end of the story. If a magistrate orders detention, the defense attorney can appeal 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 particular 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 they must fight every case with full and optimistic vigor at every available stage, and doing so is never a waste of time. Securing pretrial release in a federal criminal case can be vital in securing dismissal of charges, a great plea bargain, and a lenient sentence.

Frequently Asked Questions

Which is the most common method of pretrial release used?

In federal court, the most common method of pretrial release is an unsecured bond.

What methods of pretrial release are available?

The methods of pretrial release are (1) Personal or Unsecured Bond, (2) Cash, (3) Ten Percent (10%), and (4) Surety (use of a bondsman).

Which of the four types of pretrial release is most commonly used in the criminal justice system for defendants charged with a felony?

In the United States District Court for the Eastern District of Michigan, most non-violent felony defendants get an unsecured bond, a.k.a. personal bond.

When considering pretrial release, a judge will consider which two types of risk?

The Bail Reform Act of 1984 allows federal courts to make pretrial release decisions based on (1) the defendant’s risk of pretrial flight and (2) the defendant’s potential threat to the community or to specific individuals, including the likelihood that the defendant will commit new crimes while on release.

Does a judge have to grant a bond?

Pretrial custody is presumed for defendants accused of specified offenses under the 1984 Act. In contrast, the government must typically show why pretrial detention is essential; these defendants must show why pretrial release is warranted.

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