Pretrial Release in a Federal Criminal Case

Securing Pretrial Release in Federal Court is Vital

Your best hope of getting out on bond is with a seasoned, persuasive, and knowledgeable federal defense attorney by your side. Never turn yourself in on a warrant or face arraignment without a top defense lawyer.

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What is pretrial release?

Pretrial release in a federal criminal case means that while federal charges are pending, a defendant can remain out in public rather than stay 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 resolution of the case. 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.

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.

The 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:

the nature and circumstances of the offense charged
the weight of the evidence
The financial resources of the defendant
the character, physical, and mental condition of the defendant
family ties
employment status
prior convictions

community ties and length of residency in the community
record of appearances at court proceedings
whether, at the time of the current offense, the defendant was under criminal justice supervision
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 that 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 the judge or magistrate grants a defendant pretrial release, the judge or magistrate can order several conditions of bond, including:

Third-party custody: whereby the judge designates someone to be responsible for the defendant and assumes responsibility for their supervision;

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 judge permits the defendant’s release from detention for limited 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

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 have already 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 is 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. A judge may or may not believe statements of remorse. Judges often greet such statements 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 has 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 rehabilitate with little or no incarceration.

More Effective Collaboration and Review of Evidence

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, 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 is usually quite substantial in federal cases. Additionally, the United States Marshall detains federal defendants at many possible jails throughout Michigan. These jails are invariably quite distant from the attorney’s office. The Marshal doesn’t care if the jail is close to the attorney’s office.

You Can Appeal a Magistrate’s Order for Pretrial Detention

Even if a magistrate orders the defendant’s detention, 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 district court judge must redo the detention hearing from scratch. 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 obtaining dismissal of charges, a great plea bargain, and a lenient sentence.

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Frequently Asked Questions

Which is the most common method of pretrial release used?

In federal court, the most common method of pretrial release is a $10,000 unsecured bond. The defendant does not post any money for an unsecured bond. Essentially, it is a promise to appear and follow the terms and conditions of the pretrial release order.

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 common 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 are granted an unsecured bond, also known as 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?

No. Under the 1984 Act, there is a presumption of pretrial custody and detention for defendants accused of specified offenses. In contrast, the government must typically show why pretrial detention is essential; these defendants must show why pretrial release is warranted. Examples of presumption cases include:

Drug Offenses
- Cases involving an offense under the Controlled Substances Act or Controlled Substances Import and Export Act that carries a maximum penalty of 10 years or more, such as:
  - Drug trafficking
  - Manufacturing or distributing large quantities
  - Continuing criminal enterprise (CCE)
Firearms Offenses
- Offenses under 18 U.S.C. § 924(c): using or carrying a firearm during and in relation to a crime of violence or drug trafficking.
Terrorism Offenses
- Any offense listed in 18 U.S.C. § 2332b(g)(5)(B) with a maximum term of imprisonment of 10 years or more.
Certain Crimes Against Children
- Offenses involving minor victims under:
  - 18 U.S.C. § 1201 (kidnapping)
  - 18 U.S.C. § 1591 (sex trafficking)
  - 18 U.S.C. §§ 2251, 2252, 2252A (child pornography)
  - 18 U.S.C. § 2423 (transportation of minors for sexual activity)
Repeat Offenders
- If the defendant was previously convicted of one or more of the above-listed offenses and has a new charge for the same type of offense.

Each of these categories triggers the presumption under 18 U.S.C. § 3142(e)(3).

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. We know that securing pretrial release in a federal criminal case is vital, and we will do whatever it takes to give our client the best possible chance of getting a low or personal bond.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.