Pretrial Release and Detention in Federal Court
Federal courts such as the Eastern District of Virginia, Alexandria, do not have a bail or bond system that is typical in state courts. Instead, they have a pretrial release and detention structure with its own rules and processes. If a loved one is in custody for a federal charge, it is extremely important to understand the federal bail procedure to ensure their rights are upheld.
When a defendant is arrested, the court can do one of 4 things:
(1) they can release the Defendant on personal recognizance or bond,
(2) they can conditionally release the Defendant,
(3) hold the Defendant temporarily while other relevant authorities are notified, or
(4) they can detain the Defendant until trial. See 18 U.S.C. § 3142(a).
What does personal recognizance mean?
A personal recognizance is an agreement with the Court and an unsecured bond
A court must order a defendant’s pretrial release on personal recognizance or upon an unsecured appearance bond, subject to (1) defendant’s agreement to not commit a crime during release; and (2) defendant’s cooperation in providing a DNA sample if authorized under 42 USC 14135a, unless it determines that such release would not reasonably assure the defendant’s appearance at court proceedings, or will endanger the safety of any other person or the community.
Will I be forced to comply with conditions if I am released?
If a court finds a defendant does not qualify for release on personal recognizance or upon an unsecured appearance bond, then it must order the defendant released on conditions. These conditions will again include the defendant’s agreement to not commit a crime during release, and cooperation in providing a DNA sample if authorized by law.
A court has wide discretion to impose other conditions so long as they are the least restrictive available to reasonably assure defendant’s appearance and the safety of other persons and the community. Examples of potential additional conditions include: remaining in the custody of a designated person, maintain or seeking employment, restrictions on travel, avoiding contact with alleged victims or witnesses, report regularly to pretrial services, electronic monitoring, forfeiture of certain property, undergo various evaluations, and any other condition reasonably necessary to assure defendant’s appearance and the safety of others. A court can change conditions at any time.
What happens if I violate a condition of release?
If you violate a condition of release, the consequences are serious. Your pretrial release could revoked, you may be arrested and detained, and you could be prosecuted for contempt of court. IF you put up an unsecured bond, the court can also declare that you forfeited that money.
What happens if don’t show up at trial or other pretrial court date?
If you fail to appear for a court date after conditional release you can be fined and sentenced to imprisonment for that failure to appear. The length of the sentence can vary from 1 to 10 years depends upon the potential sentence for your underlying crime. IF you posted an unsecured bond that money will also be forfeited.
What happens if I commit another offense while on pretrial release?
If you commit another offense when on pretrial release you could essentially be sentence twice—once for the crime you committed, if convicted, and once for violating a condition of release. Your sentence for the violation could be up to 10 years for a felony and up to one year for a misdemeanor.
Will I be detained if I am an immigrant?
If you are not a citizen or legal permanent resident, you can be temporarily detained for up to 10 days, excluding weekends and holidays. During this time the prosecutor will contact INS and INS will either pick you up, or not. If they do not, you will be treated like any other defendant would be for purposes of pretrial release.
This 10-day temporary detention will also apply if a court determines a defendant is charged with a committing a crime while on release pending: a felony trial; sentencing; an appeal; probation or parole. The prosecutor will notify the appropriate authority, i.e., a probation or parole officer of the circumstances.
Under what circumstances will the court hold a detention hearing?
Upon the prosecutor’s request, a court must hold—and can only hold—a detention hearing when the case involves at least one of the following:
(1) a crime of violence, a violation of 18 U.S.C. § 1591, or an offense listed in 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of imprisonment of ten years or more is prescribed;
(2) an offense for which the maximum punishment is life imprisonment or death;
(3) an offense involving controlled substances for which a maximum term of imprisonment of ten years or more is prescribed;
(4) any felony if the defendant has been convicted of two or more offenses described in the three preceding categories, or two or more State or local offenses that would have been offenses described in the three preceding categories if a circumstance giving rise to Federal jurisdiction had existed, or a combination of offenses;
(5) any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device, or any other dangerous weapon, or involves a failure to register under 18 U.S.C. § 2250; or
(6) a case that involves a serious risk that the defendant will flee or a serious risk that the defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.
How soon will a detention hearing be held?
The hearing must be held at the defendant’s first appearance, unless the prosecutor or the defendant requests a continuance. The prosecutor can request a 3-day continuance and the defendant can request up to a 5-day continuance, possibly longer for good cause. A defendant has a right to an attorney at a detention hearing and may want to request a continuance to make sure he or she has one.
Will the detention hearing be like a trial?
Detention hearings are informal compared to a trial and while evidence is presented the rules of evidence do not apply. But, the prosecutor will have the burden of proof and must show either (1) by clear and convincing evidence that no conditions of release will reasonably assure the safety of the community; or (2) by a preponderance of the evidence that no conditions of release will reasonably assure the defendant’s attendance at trial.
What will the court base its decision on?
If after a detention hearing the court determines that no combination of conditions will reasonably assure defendant’s appearance and the safety of others, the court must order pretrial detention. The court must consider the following factors when making its decision:
- the nature and circumstances of the offense
- the weight of the evidence
- the history and characteristics of the defendant
- the nature and seriousness of the danger to any person or to the community that would be posed by the person’s release.
The Act establishes a presumption in favor of detention in some circumstances, but this presumption can be rebutted by a defendant. A rebuttable presumption in favor of detention occurs when a defendant has been convicted of certain crimes involving violence, drugs, multiple felonies, dangerous weapons or firearms, minors, etc., or when it hasn’t been more than 5 years since a prior conviction or release from prison from one of these offenses. It also applies when the court finds reasonable cause to believe the defendant committed certain drug offenses, firearm offenses, acts of terrorism, offenses involving a minor and others.
Can they put me back in jail if I did not violate any conditions after I was already granted pretrial release?
Possibly. Even if you were released after a hearing, the detention hearing can be reopened any time before trial if new information comes to light. The prosecutor can also appeal a court’s decision to release a defendant.
Can I appeal a detention order?
Yes. If the pretrial detention order was issued a magistrate judge, a detained defendant can ask the district court to review the order. A district court detention order can be appealed to the court of appeals.
What if I am detained and the prosecutor keeps postponing the trial?
If a defendant is detained for a prolonged period of time before it may constitute a Due Process violation and he or she can make a motion for release on bail.
Can a lawyer attorney help me get pretrial release?
An attorney can get information from you, your family and friends, your employer, etc. to build an argument that you meet the criteria for pretrial release. An attorney can also obtain letters of confirmation and support to assure the court that you will show up to court and that you are not a threat to the community. Arguing for the least restrictive conditions of release is another way an attorney can help you though this process. And in the event the court imposes unnecessary conditions, or worse, orders your detention, an attorney can help you appeal.