The four options the judge has
Under the Bail Reform Act, 18 U.S.C. § 3142(a), a judge deciding release before trial must order one of the following:
- Personal recognizance. Release on a promise to appear, or on an unsecured appearance bond.
- Release on conditions. Release with conditions such as a custodian, travel limits or reporting.
- Temporary detention. Short detention so another agency can act, for example on probation or immigration matters.
- Detention. Holding the person until trial, after a hearing.
When the hearing happens
The government may ask for detention in certain categories of cases, such as crimes of violence and serious drug offenses, or where there is a serious risk of flight or of obstructing justice. The hearing is held immediately at the first appearance unless a continuance is granted.
The defense may ask for a continuance of up to five days, and the government up to three, not counting weekends and holidays. At the hearing, the person has the right to a lawyer, to testify, to present witnesses and information, and to cross-examine witnesses. The rules of evidence used at trial do not apply.
Presumption cases
In some cases the law starts with a rebuttable presumption that no conditions will be enough. These include drug offenses carrying a maximum of ten years or more, and firearm charges under 18 U.S.C. § 924(c), when there is probable cause to believe the person committed them.
A presumption can be rebutted. That is why information about the person’s ties, history and a release plan matters so much, and why it should be gathered before the hearing.
What the judge weighs
Detention is allowed only if the judge finds that no condition or combination of conditions will reasonably assure the person’s appearance and the safety of others. A finding of danger must be supported by clear and convincing evidence. Under section 3142(g), the judge considers:
- The charge. The nature and circumstances of the offense.
- The evidence. The weight of the evidence against the person.
- The person. Family ties, employment, length of residence, community ties, health, criminal history and record of appearing in court.
- The risk. The nature and seriousness of any danger release would pose.
The judge must choose the least restrictive conditions that will reasonably assure appearance and safety.
Conditions of release
Conditions listed in the statute include living with or being supervised by a third-party custodian, keeping or looking for work, limits on travel and residence, no contact with alleged victims or witnesses, reporting to pretrial services, a curfew, treatment, and an agreement to forfeit property or a bond with sureties if the person does not appear.
The statute also says a judge may not impose a financial condition that results in the person being detained.
If the judge orders detention
If a magistrate judge orders detention, the person can ask the district court with jurisdiction over the case to revoke or amend the order under 18 U.S.C. § 3145(b), and the court must decide promptly. An appeal from a release or detention order is also available and must be decided promptly.
What families can prepare
- A custodian. A responsible relative or friend willing to supervise the person and report any violation.
- A place to live. A stable address in the district where the person can stay.
- Work or school. Letters or records showing employment or enrollment.
- Property or sureties. Information about property or people who could sign a bond, if the court requires one.
- Health needs. Records of medical conditions, medications or treatment.
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience. The first consultation is free and confidential.