Pretrial Detention in Federal Criminal Cases

After a criminal arrest, the court must decide whether the defendant should be held in jail until the charges are resolved, which is generally referred to as being “detained,” or be released and expected to voluntarily return to court for all required hearings and trial.  Statistics demonstrate that defendants who are granted pretrial release have much better case outcomes.  This makes sense because defendants who are not in jail can more easily communicate with their defense attorneys to prepare an effective defense, they are better able to maintain stable employment and maintain family and social relationships, and they feel less pressure to accept whatever the government proposes to move the case forward.

In some cases, the government does not argue that the defendant should be detained.  In those cases, the prosecutor and defense attorney are generally able to agree on a set of proposed conditions for release (discussed further below) to submit to the Judge, who generally approves such agreed-upon arrangements.  However, statistics show that in practice the government seeks detention far more often than it agrees to release, and in those cases (including white-collar cases) the issue is contested and needs to be decided by a Judge.

The laws governing a federal court’s decision whether a defendant should be detained or released before trial are set forth in the Bail Reform Act of 1984 (18 U.S.C. §§ 3142 et seq.). Here, we will provide an overview of the legal framework judges must follow when making decisions about whether a defendant should be detained or released.

Detention Hearing Process

The prosecutor and the defense attorney generally present arguments about why the defendant should or should not be released during what is called a “detention hearing.”  Prior to that hearing, a division of the Court called “Pretrial Services” interviews the defendant for the purpose of providing a report to the Judge.  That report generally includes a short summary of relevant background facts weighing for and against release.  Because Pretrial Services is supposed to neutrally evaluate the facts and does not work for the prosecutor or the defense attorney, its recommendations can have a significant impact on the Judge’s detention decision.

The Pretrial Services interview generally covers information about the subjects most judges weigh heavily in making a detention decision.  For example, the interview will include questions about the defendant’s current and past residences, family ties, travel history, employment history, substance abuse history, and criminal history – among other subjects.  Practices vary in different Districts whether defense attorneys generally attend this Pretrial Services interview.  When possible, it is helpful to have defense counsel present to avoid misunderstandings and omissions that can be held against the defendant later if the Court concludes that the defendant was not being honest or forthcoming during the Pretrial Services interview.

At the detention hearing, attorneys for both sides argue the facts and law that each side believes supports its position on detention or release.  Unlike a trial, which is governed by strict rules of evidence and generally requires witness testimony, detention hearings are more informal and generally proceed by what are called factual “proffers.” A factual proffer is an attorney’s oral representation of relevant facts.  Sometimes attorneys also submit documents or ask witnesses to testify if they believe such evidence would be particularly persuasive to the Judge about a key fact.  At the conclusion of the hearing, the Judge orders that the defendant be released or detained. A detention hearing can also last more than one day, or be postponed for a few days to permit either side to gather additional facts or respond to new information not known before the hearing.

At a high level, the key question the Judge has to resolve at a detention hearing is whether any “condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.”  18 U.S.C. § 3142(e).  Typically, the hearing results in one of two outcomes: release or detention.

1. Release

Defendants can be released on nothing more than their written promise to appear at all future proceedings, with no additional conditions or financial obligations related to their release.  This is uncommon in felony cases in most federal jurisdictions.

Instead, if a defendant is granted pretrial release, the Judge typically requires that the defendant agree to abide by certain rules and restrictions as a condition of staying out of custody.  This is called “release on conditions.”  Compliance with those conditions is typically monitored by a Pretrial Services officer, whose job is similar to a probation officer.  The Pretrial Services officer will report to the Judge any violations of the defendant’s conditions. The Pretrial Services officer can recommend that release be revoked, which often depends on the severity of the alleged violation.

Examples of major categories of pretrial release conditions include:

• Bond (i.e., money). The court can require an “unsecured” bond, which means that the defendant is making a legally enforceable written promise to pay the amount of the bond if the defendant knowingly fails to appear at a future proceeding. An “unsecured” bond does not require that the defendant actually deposit with the court the money ahead of time or post other collateral worth the amount of the bond.  The court can also require a “secured” bond, which requires the posting of the bond or collateral with the Court before release can occur.  In addition, the Court may accept the promise of a “surety” to also be financially responsible for paying the specified bond amount.  A “surety” is often a family member or other close associate with significant assets.  A surety bond can be secured or unsecured.  It is less common in federal court to have “corporate” surety bonds, which are the types of bail bond companies many people are familiar with because they are common in state criminal cases and they often advertise broadly.  In white-collar cases where the defendant has significant assets, being able to propose a significant bond can be an advantage for a defendant seeking pretrial release.
• Home detention/electronic monitoring. The defendant’s location is tracked through an electronic monitoring device to ensure the defendant complies with any geographical restrictions imposed by the Court, which can be as narrow as staying at home absent prior approval to leave (“home detention”), or broader to permit travel to places like school, work, and family members’ residences with a “curfew” to be home by a certain time.
• A defendant can propose an individual – often a family member – who agrees to act as a “custodian.”  A custodian essentially agrees to monitor the defendant for violations of pretrial release conditions and report any such violations to the Court.  It is akin to having someone with a close relationship to the defendant agreeing to help the Pretrial Services department and act as an extra set of eyes and ears for pretrial release violations, while encouraging the defendant to comply.  The background of the proposed custodian is often important to the Judge and to Pretrial Services.
• Standard conditions. The court often requires released defendants to seek or maintain employment, refrain from illegal substance abuse, not commit any new crimes, surrender all passports and not seek any type of international travel document, not travel outside of the jurisdiction where the case is pending without prior approval, refrain from contact with any alleged victims or witnesses, and not possess any firearms (including surrendering current firearms).

2. Detention Pending Trial

• A judge can order a defendant to be held in federal custody (i.e., jail) until the case is resolved by trial, plea, or dismissal. The location of detention varies by jurisdiction.  In many federal districts, pretrial detainees spend custody time in local state jails under a contract between the federal government and the local facility.  In other districts with nearby federal detention facilities, the defendant may serve pretrial detention inside of a federal facility.

Factors A Court Considers For Pretrial Release or Detention

Congress listed specific factors a judge must consider when detaining or releasing a criminal defendant awaiting trial.  18 U.S.C. § 3142(g)  The factors are fairly broad (e.g., “the history and characteristics of the person”).  As a result, each case is very fact specific and the importance of each factor varies based on the defendant’s background and the type of crime alleged. Statutory factors include a defendant’s prior criminal record, the nature of the underlying charges, family and community ties, substance abuse history, and prior record of appearances or failure to appear in court.

Legal “Presumptions” In Favor of Detention

The law presumes that a criminal defendant should not be detained and it is the government’s burden to prove that detention is appropriate.  However, there are certain circumstances set forth in the Bail Reform Act where the law creates a “presumption” that the government has met its burden of showing detention is appropriate.

Judges and attorneys often refer to these as “presumption” cases.  A few examples of situations that can create a statutory presumption in favor of detention include (i) where the crime charged is a violent or drug crime described in the statute; or (ii) the defendant was previously convicted of a type of crime specified in the statute and that crime was committed while the defendant was on pretrial release (federal or state).  This is not an exhaustive list of the scenarios that can create a “presumption.”  A knowledgeable federal criminal defense attorney can advise you whether the circumstances in your case create a presumption in favor of detention.

Notably, a “presumption” in favor of detention is not a requirement that the defendant be detained.  The defendant can still have a detention hearing and offer evidence and arguments seeking to rebut the presumption.

Special Considerations in White Collar Cases

Often in white-collar cases, the government focuses its arguments in favor of detention on whether the defendant is a flight risk.  This is because white-collar cases often involve defendants with little or no criminal history where no presumption in favor of detention applies. The prosecutor may, for example, seek to introduce evidence of significant assets (including any offshore or digital currency assets) that could be used to flee without detection, international travel history, international business or family ties, and any overseas investment and property ownership indicating that the defendant may have a place to flee and resources to live while abroad.  The government may also look for a history of false documentation to argue that the defendant is prepared to use a false identity or travel document to flee.

The defense attorney on the other hand, will emphasize why a defendant is unlikely to flee. These arguments and evidence often emphasize longstanding and significant family and community ties that a defendant would not likely want to abandon.  In addition, a history of caring for children or other family members (e.g., an elderly or sick parent) can be persuasive evidence of a strong incentive not to flee.  Skilled federal criminal defense attorneys weave together all of the relevant factors the court considers and are prepared to offer realistic release conditions that can provide the Court effective assurance that the defendant is unlikely to flee, which could include proposing a bond, custodian, surety, or other release conditions like electronic monitoring.

Detention Appeals

Each federal criminal case generally involves both a U.S. District Judge and a U.S. Magistrate Judge.  The District Judge presides over the case and any trial or plea hearing that occurs. The Magistrate Judge’s role is typically smaller, and involves presiding over the defendant’s initial appearance in court as well as handling the detention hearing.  If the Magistrate Judge orders the defendant detained, however, the defendant has a right to appeal that decision to the District Judge.  18 U.S.C. § 3145.

Critically, the District Judge’s review of the detention order does not involve deference to the Magistrate Judge’s findings and conclusions.  In other words, the District Judge is supposed to review all of the facts and arguments made by both sides and come to an independent decision about detention as if the District Judge were the first Judge to rule on the issue.  In legalese, this is called “de novo” review.  Often, the District Judge rules on the appeal based solely on the evidence and arguments presented to the Magistrate Judge. The District Judge can, however, hold another hearing and consider additional evidence if the defendant requests it.

 Experienced Federal Criminal Defense Lawyers

At Delahunty & Edelman, our federal criminal defense lawyers are former federal prosecutors who are equipped to provide a tailored strategy and effective representation you need when faced with federal criminal charges.  We can help you understand your pretrial release options and arguments and craft the best argument possible in favor of pretrial release, including appealing a prior detention order.  For more information or to book an initial consultation, please call us today at 415-891-6210 or submit an inquiry here.

Patrick Delahunty

Patrick Delahunty is a former federal prosecutor with deep experience in resolving disputes. He advises individuals and companies in complex criminal, regulatory, and commercial litigation.