What are Conditions for Pre-Trial Release?
A federal magistrate judge decides at the initial appearance hearing whether a person accused of a federal crime will be in custody or may leave on bond. Because a detention order at the initial appearance hearing could well mean that an accused will remain in custody for the remainder of the case (and appear handcuffed at future hearings), it is critical to hire experienced criminal defense counsel the moment you become aware of a potential criminal investigation.
Appearance Before Magistrate Judge
The initial appearance is typically conducted by a U.S. magistrate judge who informs the person accused of a crime about the nature and the scope of the charges against him or her. Pursuant to 18 U.S.C. § 3142, the magistrate judge will then look at the circumstances of the case and review the accused’s background to decide whether the defendant can be released on conditions pending the case.
Who Must Appear at the Hearing?
Two scenarios lead to an initial appearance in the federal criminal justice system.
- Scenario 1: Arrest
In scenario 1, an individual has been arrested by federal law enforcement officers, such as FBI agents, DEA agents, ICE agents, or agents of the Office of Inspector General. This arrest often occurs also with the help of state law enforcement agencies, in particular the local police. The agents take the accused to the initial hearing to present him to a judge.
- Scenario 2: Target Letter
In scenario 2, the accused will learn that an investigation is pending against him by a so-called target letter, in which a federal prosecutor informs an individual that he or she is accused of having committed a federal crime. The letter includes contact information or a grand jury invitation to appear for testimony. In this scenario, the accused will have time to consult with attorneys and almost always have a chance to voluntarily appear with his lawyer of choice at the initial hearing.
The Role of Lawyers
The role of an experienced criminal defense lawyer at this initial appearance is to convince the judge that the accused presents no danger to society, has no plans to flee his residential district or the country, will comply with all registration and reporting requirements— and consequently deserves to remain free.
The former federal prosecutors and experienced criminal defense attorneys at the Oberheiden & McMurrey, LLP offer free and confidential consultations to explore with you how pre-trial detention can be avoided in your case.
Factors the Court Considers for Pre-Trial Release
Detention and release of defendants during criminal investigations is controlled by the Due Process Clause of the Fifth Amendment of the U.S. Constitution, the Excessive Bail Clause of the Eight Amendment of the U.S. Constitution, and the Bail Reform Act of 1984.
Pursuant to 18 U.S.C. § 3142 and 18 U.S.C § 3141, the court must take several factors into consideration in order to determine someone’s pretrial custody status. Among these factors are:
- the nature of the offense
- the person’s prior arrests and convictions
- the person’s probation or parole status
- the danger to other people or the community
- the person’s financial resources to flee
- the person’s foreign ties
- the likelihood of future offenses pending the continuation of the case
- the likelihood to destroy or hide evidence
- the person’s citizenship
- the person’s lawful or unlawful residence in the United States
- the person’s age
- the person’s medical conditions
Conditional Release (Bond)
If conditional release is granted, the magistrate judge will typically impose several restrictions to ensure that the accused, although not in custody, can be monitored by a U.S. probation officer.
Additionally, pre-trial release typically means that the individual will have to surrender all passports, foreign and domestic, will have to cooperate and visit regularly with a U.S. probation officer assigned to his case, and will have to refrain from communicating in any form or fashion with victims and co-defendants in the case, or people that are known to be criminals. Additionally, the individual is expected to pass random drug and alcohol tests, to provide proof of employment, and to provide all documents relating to his mental and physical condition.
Violations of Conditions
If the accused is released on conditions, he will be able to leave the courthouse and remain a free citizen pending further orders. Violations of the conditions for release, pleading guilty at the re-arraignment, being found guilty at trial, and a judgment of incarceration at a sentencing hearing may all alter the court’s release order. Pretrial release orders will inform the defendant that any violation of state or federal law during the case resolution will result in a hearing and likely in detention.
Offenses against children, offenses that involve violence, offenses that involve the possession or use of a firearm or similar destructive device or dangerous weapon, crimes with a maximum term of imprisonment of ten years or more, or offenses for which the maximum sentence is life imprisonment or death, and serious violations of the Controlled Substances Act or the Controlled Substances Import or Export Act are most likely to result in pretrial detention.