The two issues that a federal court considers in its determination of whether to release a defendant on bond pending trial are whether he or he poses a serious risk of flight, or a danger (including physical and financial harm) to any other person or the community.
The arresting agency must take the defendant before a federal judicial officer, typically a magistrate judge, “without unnecessary delay” after the arrest for the purposes of an initial appearance and a detention hearing.
The magistrate judge, during the initial appearance, will advise the defendant of the charges against him or her, the penalties for those charges, and the defendant’s rights to remain silent and to have the representation of a criminal defense attorney throughout all court proceedings. The magistrate judge then will conduct a detention hearing immediately after the initial appearance to determine whether the defendant should be released on bond pending trial, unless one or both of the parties exercise their right to delay the proceeding briefly—the government may request a delay of not more than three business days, and the defendant may request a delay of not more than five business days.
In cases other than those involving charges related to violence, terrorism, child exploitation, controlled substances with a maximum penalty of at least ten years of imprisonment, and any offense punishable by imprisonment for life or death, the government must prove by a preponderance of the evidence that the defendant is poses a risk of flight, or by clear and convincing evidence that the defendant poses a danger to any other person or the community, before the court is authorized to detain the defendant. If the government meets that burden on either issue, the magistrate judge will order the defendant to remain in the custody of the US Marshals Service pending trial. If the government fails to meet that burden, the magistrate judge must release the defendant pending trial on a personal recognizance bond (no monetary obligation), an unsecured bond (a monetary obligation but payment only if there’s a bond is violation), or a secured bond (a monetary obligation in the form of cash or property that the defendant must pay or pledge, respectively, before the his or her release), with the least-restrictive conditions that will ensure the defendant’s appearance in court and protect the community. Those conditions usually include travel, firearms, and contact with potential witnesses restrictions, among others.
In cases involving charges related to violence, terrorism, child exploitation, controlled substances with a maximum penalty of at least ten years of imprisonment, and any offense punishable by imprisonment for life or death, federal law presumes that there is no condition or combination of conditions of bond that will ensure the defendant’s appearance in court and protect the community; however, the defendant may rebut that presumption by presenting any evidence that he or she isn’t a risk of flight or a danger to the community, upon which the magistrate judge will conduct the remainder of the hearing in the same manner as if those crimes are not at issue in the hearing.
If a magistrate judge orders that a defendant be detained pending trial, the defendant may request the assigned district judge (the judge with plenary authority over the case) to review the detention order. The defendant must submit that request for review within fourteen days from the date that the magistrate judge issues the written detention order (rather than the magistrate judge’s oral pronouncement in court). The district judge may decide the review based on the pleadings alone, or he or she may conduct a second detention hearing, at which he or she has the authority to receive additional evidence a consider the matter anew.
If the district judge disagrees with the magistrate judge’s detention order, the district judge may order that the defendant be released pending trial in accordance with the law as if the defendant were at his or her original detention hearing. If the district judge agrees with the magistrate judge’s detention order and affirms it, the defendant then may appeal the district judge’s detention order directly to the appropriate United States Court of Appeals by filing a Notice of Appeal in the district court within fourteen days from the date that the district judge issues the detention order.
Re-Opening the Detention Hearing
If a defendant is detained pending trial, he or she may request that the court re-open the detention hearing only if the magistrate judge or the district judge determines that information exists that was unknown to the defendant at any previous detention hearing that has a material bearing on the issues of whether the defendant poses a risk of flight or a danger to any other person or the community. The defendant may request a review or appeal any adverse decision by the magistrate judge or district judge in accordance with the procedure described previously.