Bail and Pretrial Release in Federal Criminal Cases

What is pretrial release (bail)?

After an individual is arrested for a crime, he or she is detained and held at a jail—usually close to a courthouse where his or her case will be tried.  Pretrial release, also commonly called “bail,” is the release of an arrested individual pending trial.

All of the fifty states, as well as the federal government, have procedures for permitting the release of an arrestee while trial is pending. By law, this decision is usually by a trial judge or magistrate judge.  Although specific procedures may vary from jurisdiction to jurisdiction, the procedures used by federal courts are archetypical of the procedures in many states. In this article, we will discuss the federal pretrial release process, and answer some of the most common questions about this process.

What is a detention hearing (bond hearing)?

A detention hearing, sometimes also called a bond hearing, is the name of a proceeding where a judge determines whether to grant pretrial release. Detention hearings are conducted soon after a defendant’s arrest, usually within days, and sometimes may be merged into another pretrial hearing such as the initial appearance or arraignment.

In a typical detention hearing, both the prosecutor and the defense present evidence (which may include documents, pictures, videos, and live testimony) and make arguments.   Some jurisdictions permit the attorneys to proceed by “proffer”—i.e., giving a verbal summary of the evidence—instead of actual evidence.  The judge, after hearing the evidence and the arguments, must decide whether to release the defendant.  If the judge orders release, he must additionally determine what conditions of release must be imposed.

The decision regarding what evidence to present and what arguments to make at a detention hearing often has important strategic implications. For example, should a defense attorney insist that the prosecutor call certain witnesses to testify?  If there are deficiencies in the prosecution’s theory of the case, should those be brought up at the detention hearing? An experienced defense attorney must evaluate many factors before deciding on the correct approach.

What determines if I will be granted pretrial release? 

In federal criminal cases, pretrial release is governed by statute.  18 U.S.C. § 3142 provides that pretrial release must be available unless there is: (1) a risk that the defendant will not appear for future hearings (risk of flight), or (2) a risk that the defendant will commit additional crimes (danger to the community).  If either factor is present, then the judge must consider whether some combination of release conditions (such as travel restrictions or GPS monitoring) will sufficiently mitigate the risk, so that there is a reasonable assurance the defendant will appear for future hearings and will not be a danger to the community.

The prosecutor usually has the burden of proof at a detention hearing, and unless the prosecutor meets that burden, the defendant is entitled to pretrial release. However, in some cases, such as cases involving serious drug charges, certain firearms offenses, and crimes against minors, the law imposes a rebuttable presumption against release. This means that the defendant must produce some evidence showing that he is neither a flight risk nor a danger to the community.

Here are some common factors that courts will take into consideration when deciding whether a defendant should be granted pretrial release:

  • Does the defendant have a significant criminal history? And if so, does that criminal history involve previous failures to appear for court proceedings, or the commission of violent crimes?
  • What are the nature and circumstances of the crime charged? Is the evidence against the defendant strong?
  • Does the defendant have a permanent residence in the jurisdiction? What kind of ties does the defendant have with the jurisdiction?
  • Is the defendant presently employed or going to school?

If the judge is persuaded that the defendant will likely show up for future court hearings, and will not commit additional crimes while on pretrial release, then the judge will order pretrial release—possibly with conditions attached.

What are pretrial release conditions?    

Pretrial release conditions are special conditions that a judge may impose when releasing a defendant on bail.  These conditions can be simple (a promise to show up for future court hearings), or onerous (wearing an ankle bracelet for GPS monitoring).  If any release condition is unclear, you should consult your attorney about the condition.

One universal condition of release in all federal and state criminal cases is that the defendant cannot violate any laws while on pretrial release.  Additionally, the judge may require the defendant to:

  • execute a bond, which may be secured or unsecured;
  • be under the supervision of a third party custodian, such as a family member;
  • maintain or look for employment;
  • abide by travel restrictions;
  • be subject to GPS monitoring;
  • undergo regular drug or psychological testing/treatment;
  • comply with any other conditions that the judge thinks are reasonably necessary to assure the defendant’s appearance and the safety of the community.

A violation of any condition of release can be a reason for the judge to revoke a defendant’s pretrial release.  In that situation, the defendant may find him or herself back in jail for months while waiting for a trial.

What is a pretrial interview?

In federal criminal cases, a Pretrial Services Officer, who is an employee of the Court, will interview new arrestees for background information.  These interviews are called pretrial interviews.

Usually during a pretrial interview, the Pretrial Services Officer will ask questions to obtain basic biographical information: questions about your family, work environment, educational history, financial ability, etc., are common.  The Pretrial Services Officer may also verify the information you provide by calling people or obtaining documents.  While Pretrial Services Officers will generally not ask questions related to the crime charged, it is important to keep in mind that you have a Fifth Amendment right to not answer questions that may incriminate you.  If a Pretrial Services Officer asks you a question that you are reluctant to answer, you have the right to ask to speak to an attorney.

After the interview, the Pretrial Services Officer will compile a report, which will summarize the information obtained, and recommend detention or release, as well as any conditions of release.   Prior to conducting a detention hearing, the judge will review the report, and will usually meet with the Pretrial officer to discuss that officer’s recommendation. The Pretrial Services Officer’s recommendation usually plays an important role in the judge’s decision. Thus, it is in the defendant’s interest to try to obtain a recommendation of release.

What if a judge orders detention, or grants release but imposes an unreasonable condition? 

If a judge orders detention, or imposes an unreasonable condition of release, the detention order can be appealed. Detention orders entered by magistrate judges (the lowest level of judges in federal courts) are reviewed by district court judges, while detention orders entered by district court judges can be appealed to the federal courts of appeals.  Appeals of detention orders take priority over other matters, and must be decided “promptly.”  This means that appeals of detention orders typically will be resolved within days, or at most a few weeks.

The appeal of a detention order is similar to other appeals. One important difference is that the standard of review may be different. For example, when appealing a detention order entered by a magistrate judge, the district court judge will review the order de novo, meaning the district court judges does not need to defer to the magistrate judge on any issue found by the magistrate judge.

How can an attorney help me obtain pretrial release? 

An experienced attorney has many ways to build a case for pretrial release.  Here are just a few:

Interviewing family members, employers, and other members of the community. 

One of the first steps that an attorney can take is obtaining a list of witnesses with pertinent information about the defendant.  Family members, current and former employers, friends, and acquaintances, may all have information about the defendant’s character, employment, and ties to the community.  An attorney can interview these individuals to determine what information they possess and their willingness to help the defendant in obtaining pretrial release.

Obtaining letters of support.

Live testimony is rarely presented in court at the detention hearing, and the judge will frequently rely on letters that are submitted on behalf of a defendant. Letters that confirm the defendant’s employment, or the defendant’s commitment to financially supporting his family, or describing the defendant’s good character, are all helpful to obtaining pretrial release. Letters from other members of the community, such as a letter establishing an individual’s involvement in community organizations, may go a long way to making a favorable impression with the judge.

Securing third party custodians.

In some cases, a judge may order that a defendant can only be released to a suitable third party custodian. Suggesting the option of a third party custodian to the judge may persuade the judge to grant pretrial release in a case where the judge would have otherwise ordered detention.  An experienced attorney can help you come up with suitable candidates to serve as a third party custodian.


Pretrial release is an important consideration in our practice. In many criminal cases, especially serious white collar crimes and federal criminal cases, the time between arrest and trial may be many months, if not years. We do not want our clients to languish in jail during this lengthy waiting period. Furthermore, it is easier for us to meet with and represent someone who is on pretrial release. If you would like to speak to an attorney about issues relating to pretrial release, please feel free to call us for a free phone consultation.

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