Understanding the Federal Bail Process

Once a person is arrested for allegedly committing a Federal offense, he will be brought before a Federal Magistrate Judge who will inform the defendant of the charges and set a “reasonable” bail. While there is likely little doubt that your Federal criminal defense lawyer will contest how “reasonable” your bail may be, under the 6th Amendment of the US Constitution, the judge cannot set an “unreasonable” bail. Federal law also provides defendants additional rights. Under the Bail Reform Act of 1984, the court must set the lowest possible bail that will reasonably assure the defendant’s appearance in court. If the defendant is a public danger, the court can deny bail. Otherwise, the Court must consider the following factors set forth in Rule 5 of the Federal Rules of Criminal Procedure. Rule 5 mandates that a judge must detain or release the defendant as provided by statute. The statute that spells out what the judge must consider is Title 18, United States Code, Sections 3141-3143. At arraignment, the court must do one of the following pending trial:

  1. release the defendant on his own recognizance;
  2. release the defendant with certain conditions;
  3. temporarily detain the defendant in certain circumstances; or
  4. detain the defendant.

The court must release the defendant on his own recognizance unless the judge determines that such release will not reasonably assure the defendant’s appearance as required by law, or will endanger the safety of another person or the community. If the judge imposes conditions on the release, they must be the least restrictive conditions that will reasonably assure the appearance of the defendant and will protect others. Again, your attorney or lawyer will articulate your position as best possible to secure the minimum restrictions when possible.

Some of the possible conditions of release include: (1) no commission of new crimes; (2) remain in the custody of another person who agrees to assume supervision of the defendant; (3) maintain employment; (4) maintain or begin schooling; (5) limits on personal associations, living arrangements and travel; (6) avoiding contact with alleged victims and potential witnesses; (7) report on a regular basis to a designated law enforcement agency; (8) comply with a curfew; (9) refrain from possessing a firearm; (10) refrain from drugs or alcohol; (11)undergo medical, psychological, or psychiatric treatment; (12) post bond in the form of property; (13)return to custody for specified hours after release for employment or schooling; and (14) any other reasonable condition designed to assure the appearance of the defendant and the safety of others and the community. See Title 18, United States Code, Section 3142(c)(1)(B).

Bail can be in the form of cash, or more typically in Federal court, as a bond – an agreement by the defendant, or a financially responsible person on behalf of the defendant to pay an amount of money to the court if the defendant does not show up for court or otherwise comply with the conditions of release. The bond can be secured or unsecured. A secured bond means that there is some property that the defendant pledges to turn over to the government if he violates the conditions of bail. The Judge can also set other restrictions on the defendant including: mandating drug testing or treatment; restriction of travel; prevent association with known criminals; avoiding certain lines of employment; surrendering of passport or visas, among others.

Don’t face the uncertainty of an arraignment or bail hearing without the assistance of counsel who can not only potentially attain lower bail, but prepare friends, family or a bondsman to assist in your release.

Call the Federal criminal lawyers and former prosecutors at (212) 312-7129 or contact us online today.

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