If you’ve been arrested on federal charges, the U.S. Attorney may seek pretrial detention. If so, a U.S. Magistrate will usually set a detention hearing within day or two of the initial appearance. In determining whether or not to release a defendant pretrial, the court will consider if there are less restrictive alternatives to detention, such as electronic monitoring, drug testing, third party custodians, or residence in a halfway house. Only when the court determines that there exists no condition or combination of conditions that will reasonably assure the defendant’s appearance as required in court or the safety of the community is it appropriate for it to order pretrial detention. Hearsay is admissible at federal detention hearings. 18 U.S.C. Sec. 3142(f). Accordingly, the Assistant United States Attorney seeking pretrial detention is permitted to rest his case upon the report of the United States Pretrial Services office regarding bond.
It is the Government’s burden to prove by “a preponderance of the evidence” that no condition or combination of conditions would reasonably assure the client’s appearance in court, or, by clear and convincing evidence, that no condition or combination of conditions would reasonably assure the community’s safety.
In some cases, such as drug trafficking offenses where the maximum sentence is more than ten years, crimes of violence or in cases with a child victim (most frequently, child pornography cases) there is a presumption that no condition or combination of conditions will reasonably assure the client’s appearance and lack of danger to the community. However, that presumption can be rebutted by the defendant.
The court can also consider the weight of the evidence against the person.” 18 U.S.C. Sec. 3142(g)(2), as well as the client’s ties to the community, prior criminal record, mental and physical health, and employment history, the defendant’s family ties, employment, financial resources, length of residence in the community, past conduct, history relating to drug or alcohol abuse, and record concerning appearance at court proceedings. See 18 U.S.C. Sec. 3142(g)(A). Information concerning all of these factors will be contained in the United States Pretrial Services report which is prepared by the United States Probation Office. In the pretrial services report, the probation officer assigned to the case will make a recommendation on whether or not conditions exist that will ensure the safety of the community and the appearance of the defendant at future proceedings.The Pretrial Services recommendation is often critical to in the decision of the court whether or not to release the defendant pretrial.
Obviously, if the defendant has never been in trouble before, or has only minor prior involvement with the law, such evidence mitigates strongly against detention.
John Caudill has extensive experience in handling detention hearings in federal court, both as a prosecutor and defense attorney.