Federal detention hearings and bond: how release before trial works

A federal detention hearing is the court hearing where a judge decides whether a person charged with a federal crime stays in custody until trial or is released on conditions. The Bail Reform Act, 18 U.S.C. § 3142, controls that decision. In federal court, “bond” usually means a set of release conditions, not a cash payment.

What are the judge’s options under 18 U.S.C. § 3142?

At the person’s first appearance, the judge must choose one of four orders (18 U.S.C. § 3142(a)). The first appearance is the first court hearing after an arrest or summons, where the judge also explains the charges and the right to a lawyer (Fed. R. Crim. P. 5).

1. Release on personal recognizance or an unsecured bond (§ 3142(b)). “Personal recognizance” means release on the person’s own promise to come to court. An unsecured appearance bond is a promise to pay a set amount if the person does not appear; nothing is paid up front. The judge must choose this option unless it will not reasonably assure the person’s appearance or will endanger someone or the community.
2. Release on conditions (§ 3142(c)). If the first option is not enough, the judge must set the least restrictive condition or combination of conditions that will reasonably assure appearance and safety. The statute lists examples: living with a third-party custodian, keeping or looking for a job, travel and contact limits, reporting to Pretrial Services, a curfew, no firearms, drug testing or treatment, and posting property or a bond.
3. Temporary detention (§ 3142(d)). If the person was already on release, probation or parole when the offense happened, or is not a citizen or lawful permanent resident, and may flee or pose a danger, the judge must order the person held for up to ten days (not counting weekends and holidays). That gives another court, a probation or parole office, or immigration officials time to take the person into custody. If they don’t, the normal release rules apply.
4. Detention (§ 3142(e)). Only after a detention hearing, and only if the judge finds that no condition or combination of conditions will reasonably assure the person’s appearance and the safety of others and the community.

Is federal bail paid in cash?

Usually not. Federal release is built around conditions, and the Bail Reform Act says a judge “may not impose a financial condition that results in the pretrial detention of the person” (§ 3142(c)(2)). In other words, a judge who wants someone held must go through the detention hearing and make the findings the law requires, not set an amount the person cannot pay.

Money and property can still be part of release. A judge may require an agreement to forfeit property if the person fails to appear, or a bail bond backed by sureties (people who promise to pay if the person doesn’t come to court) (§ 3142(c)(1)(B)(xi), (xii)). The judge can look into where that money or property came from and refuse property that, because of its source, will not reasonably assure the person’s appearance (§ 3142(g)(4)).

When can the government ask for detention?

Not in every case. The judge holds a detention hearing on the government’s motion only in the kinds of cases listed in § 3142(f)(1):

• a crime of violence, sex trafficking under 18 U.S.C. § 1591, or a listed terrorism offense with a maximum of 10 years or more;
• an offense with a maximum sentence of life imprisonment or death;
• a drug offense under the Controlled Substances Act or the Controlled Substances Import and Export Act (or chapter 705 of title 46) with a maximum of 10 years or more;
• any felony, if the person has two or more earlier convictions for offenses of those kinds; or
• a felony that involves a minor victim, a firearm, a destructive device or another dangerous weapon, or a failure to register as a sex offender.

In any case, the government or the judge may also seek a hearing when there is a serious risk that the person will flee, or will obstruct justice or threaten or intimidate a witness or juror (§ 3142(f)(2)).

When is the detention hearing held?

The hearing is held “immediately upon the person’s first appearance” unless either side asks for a continuance (a short postponement) (§ 3142(f)). Except for good cause:

• a continuance requested by the defense may not exceed five days; and
• a continuance requested by the government may not exceed three days.

Neither count includes weekends or legal holidays in between. The person stays in custody during a continuance. Defense lawyers sometimes ask for the extra days to gather information, such as a release plan or a proposed custodian, before the hearing.

What rights does the person have at the hearing?

Under § 3142(f), the person has the right to be represented by a lawyer, and to have one appointed if they can’t afford one (see federal public defender or private lawyer). The person may also:

• testify;
• present witnesses;
• cross-examine witnesses who appear at the hearing; and
• present information by proffer, meaning a lawyer’s summary of what the evidence would show.

The rules of evidence used at trial do not apply. A finding that no conditions can protect the community must be supported by clear and convincing evidence. The hearing can be reopened before trial if new information comes to light that was not known at the time and that matters to the release decision. A detention order must include written findings and reasons (§ 3142(i)(1)).

What is the presumption of detention?

In some cases the law starts from a presumption that no conditions will work. It is “rebuttable”: the defense can present information to overcome it. The main presumption applies when the judge finds probable cause to believe the person committed one of these offenses (§ 3142(e)(3)):

• a drug offense with a maximum of 10 years or more under the Controlled Substances Act, the Controlled Substances Import and Export Act, or chapter 705 of title 46 (see federal drug trafficking and conspiracy);
• using or carrying a firearm during a drug or violent crime under 18 U.S.C. § 924(c), and offenses under §§ 956(a) and 2332b;
• a listed terrorism offense with a maximum of 10 years or more;
• a peonage, slavery or trafficking offense under chapter 77 of title 18 with a maximum of 20 years or more; or
• certain listed offenses involving a minor victim.

A second presumption, about danger, applies to some people with an earlier conviction for a listed offense committed while on pretrial release, within five years of that conviction or release from prison (§ 3142(e)(2)).

What does the judge consider?

Whether or not a presumption applies, the judge must weigh the factors in § 3142(g):

1. the nature and circumstances of the offense charged, including whether it involves violence, a minor victim, drugs, a firearm or explosives;
2. the weight of the evidence against the person;
3. the person’s history and characteristics, including family ties, employment, finances, length of residence and community ties, physical and mental condition, history of drug or alcohol abuse, criminal history and record of appearing in court, and whether the person was on probation, parole or release at the time; and
4. the nature and seriousness of the danger that release would pose to anyone or to the community.

Nothing in the statute changes the presumption of innocence (§ 3142(j)).

Who are Pretrial Services officers?

Pretrial Services is part of the federal courts, set up by the Pretrial Services Act (18 U.S.C. §§ 3152–3154). In each district it is run either by the court’s probation office or by a separate pretrial services office. Its officers do not work for the prosecutor or the defense.

• The interview. An officer often interviews the person soon after arrest about home, family, work, health, finances and criminal history. According to the federal judiciary, officers do not discuss the alleged crime (uscourts.gov, Pretrial Services).
• The bail report. Before the release hearing, the officer verifies the information and reports to the judge, usually with a recommendation on release or detention and any conditions (§ 3154(1)). The report goes to both the defense lawyer and the prosecutor. By law, the information may be used only for the release decision, with listed exceptions such as preparing a presentence report, and it generally cannot be used as evidence of guilt (§ 3153(c)).
• Supervision. If the person is released under supervision, officers check on compliance and report apparent violations to the court and the U.S. Attorney (§ 3154(3), (5)).

Can a detention order be reviewed or appealed?

Yes. If a magistrate judge orders detention, the person may ask the district judge who has the case to revoke or change the order, and that motion “shall be determined promptly” (18 U.S.C. § 3145(b)). The government can likewise ask the district judge to revoke or change a release order (§ 3145(a)). After that, either side may appeal to the court of appeals, which must also decide promptly (§ 3145(c)). Separately, the original hearing can be reopened if material new information turns up (§ 3142(f)).

What is an appeal bond (release pending appeal)?

After a person is sentenced to prison and files an appeal, the law presumes they will be held. To be released while the appeal is pending, the judge must find both of the following (18 U.S.C. § 3143(b)(1)):

• by clear and convincing evidence, that the person is not likely to flee or to endanger anyone if released; and
• that the appeal is not for delay and raises a substantial question of law or fact that is likely to lead to a reversal, a new trial, a sentence with no prison time, or a prison sentence shorter than the time already served plus the expected length of the appeal.

For crimes of violence, offenses carrying life or death, and drug offenses with a 10-year maximum or more, the law calls for detention pending appeal (§ 3143(b)(2)). A person in that group who meets the § 3143(b)(1) standard may still be released if it is clearly shown that there are exceptional reasons why detention would not be appropriate (§ 3145(c)). For how appeals work, see federal criminal appeals.

Where does Criminal Center fit?

Criminal Center is a boutique federal criminal defense firm. We take on a limited number of cases at a time, so each one gets close, personal attention.

For every stage of a federal case, from charges through trial and sentencing, see the federal case process. To see which federal court covers a city or state, and how outside lawyers appear there, use our federal court guides.

Book a consultation and tell us what happened.