When charged with a felony in Texas state court, it is customary to obtain your release pending trial by posting bail. This approach allows you to pay a specific sum of money to the court, which is retained for the duration of your case. If you fail to attend court or fail to appear at trial, your money is forfeited.
Unfortunately, there is no bail mechanism in federal proceedings. While you have the option of leaving jail pending trial, the federal courts use a complicated pre-trial release mechanism to determine whether you will be released pending trial.
One of the most crucial responsibilities a Texas federal defense attorney may play is assisting you in getting out of jail while you prepare for your defense. Because you are not guaranteed release before trial, you must present the best case possible at your initial hearing.
Federal Statutes Concerning Bond Release
Two statutes play critical roles in the process of conditional release following an arrest for a federal felony. 18 U.S.C. 3142 affords the court alternatives for pre-trial release, while 18 U.S.C. 4285 allows the court to provide a defendant with the financial means to attend court if they lack the means to do so themselves.
18 U.S. Code § 3142
Section 3142 is the bedrock of federal prosecutions’ release and custody procedure. This legislation compels all offenders charged with a federal violation to appear before a judicial official. The court has several alternatives, including releasing the offender on their own recognizance or holding them until trial. The state and the defendant will have the opportunity to present their case for how the court should rule during that hearing. The four alternatives given in this part of the Act are as follows:
- Allowing the defendant to be released on their recognizance or an unsecured bond
- Released under certain situations
- Detained indefinitely pending deportation or revocation, or
- The defendant is being detained.
The best outcome from a detention hearing is that the court releases you on your own recognizance or an unsecured appearance bond. The amount will be determined if the court decides to impose a bond. However, federal law prohibits it from being so high that the amount is unreasonable in and of itself. However, these offenders are subject to additional restrictions, including the requirement to provide their DNA and recognize that their release would be revoked if they commit a state or federal felony.
The legislation states that the court officer presiding over the detention hearing must select this option, implying that it is required. However, the legislation gives the court officer the authority to decline this option if they believe that “such release would not fairly secure the individual’s attendance as required or may risk the safety of any other person or the community.”
Conditions for Release
In some circumstances, the court decides that the offender should be released on their own recognizance but with additional restrictions. These requirements will always include the need to submit DNA and avoid further arrests. However, the court may impose various restrictions in return for a defendant’s release awaiting trial. While a judge has discretion in establishing these restrictions, they must be the least restrictive choices that ensure the prisoner attends future court proceedings. Among these conditions are the following:
- Remaining in the hands of a specified individual who has agreed to oversee your release,
- Whether you’re still working or actively looking for work,
- Continuing or beginning formal schooling,
- Avoiding communication with any complainants who may be engaged in the case,
- Reporting to selected law enforcement authorities regularly,
Refrain from owning firearms or other dangerous weapons; abstain from excessive alcohol consumption; and abstain from using drugs or other restricted medications without a prescription.
- Follow any necessary medical or psychological care,
- Returning to custody if free for a limited period and meeting any other reasonable condition imposed by the magistrate.
Temporary Detention to Allow Conditional Release Revocation
In certain circumstances, police enforcement or prosecution have different intentions for a defendant. This might happen if the defendant violates immigration laws or commits a crime while on bail. In some circumstances, the courts have the authority to order a defendant to be temporarily imprisoned until the government may proceed with revocation or deportation.
This alternative is only available to non-citizens who were not lawfully admitted to the United States or those who have previously been freed pending prosecution or punishment in federal court.
This type of confinement is just temporary. It gives the government 10 days to plan the defendant’s next move, excluding Saturdays, Sundays, and holidays. This allows the prosecution to prepare a request to withdraw release or to initiate deportation procedures.
The court’s ultimate option is to detain the prisoner awaiting trial. This alternative is only accessible if the judicial officer determines that no circumstances or combinations of conditions can ensure the defendant’s safety if freed.
At the hearing, the defendant has the right to dispute their detention. However, if the court finds reasonable cause to suspect the offender committed certain grave federal offenses, there is a presumption that no condition will suffice.
18 U.S Code § 4285
Section 4285 offers further protection to low-income federal defendants. If the court judges that a defendant lacks the financial means to go to court for each hearing or trial after pre-trial release, the court has the authority to provide for non-custodial transportation or grant travel fees. This fee is one-way, and therefore, the defendant must find their way home.
Process of Release and Bonding
Before a matter is released for trial, it may go through two broad stages. The first alternative entails the federal government summoning you to the detention hearing, maybe as part of a plea bargain deal. Otherwise, federal authorities will arrest the accused and detain them until the hearing date.
When the US Attorney works with a defendant’s legal counsel to obtain their voluntary presence, the two parties may agree on a proposed bond amount ahead of the hearing. If the defendant is arrested, the bond amount may become a subject of argument at the hearing.
The federal magistrate will evaluate several criteria, which we will discuss in detail below. They will next decide whether a defendant should be freed until trial and, if so, what restrictions should be imposed.
Factors Considered by a Judge During a Detention Hearing
When deciding whether or not to release a defendant before trial, a federal magistrate must examine several issues. First and foremost, the court will consider whether the offender is a danger to the community. The magistrate will review all relevant considerations while evaluating whether the defendant is a threat. This contains the person’s criminal history as well as the nature of the offenses. A person with a long history of violent crimes is more likely to be imprisoned until trial than someone with no criminal record.
The magistrate will also take into account if you are a flight risk. A flight risk is someone likely to escape the jurisdiction to avoid prosecution. The court will first check to determine if the defendant has a history of failing to appear in court when determining a flight risk. The magistrate will also enter their criminal record for signs of fraud and to see whether they habitually use aliases. The court will also consider the defendant’s links to the community. Someone who has lived in the neighborhood for decades is more likely to be freed than someone who has only recently moved there. Residents of foreign nations likely to return without trial are typically considered flight risks. Still, the court has the authority to seize a defendant’s passport and prevent them from leaving the country. This procedure also includes an evaluation of your local occupation and whether or not the defendant has family nearby.