How does bail work in the Federal system?

In the last few blog posts I’ve discussed how bail works in the New York State Court system, the different kinds of bail bonds that exist, and how a surety hearing works. In this post I’m going to briefly tackle how bail works in the Federal system. Bail and how bail works in the federal system is a lot different than in the New York state system.

Any discussion of federal bail must begin with the 8th Amendment to the U.S. Constitution and the Bail Reform Act which is codified in 18 U.S.C. 3142. The 8th Amendment states that in addition to no cruel and unusual punishment (which is the more famous part of the amendment) “excessive bail shall not be required.” What this means is that although a judge can remand you to jail in certain circumstances, if bail is set it has to be reasonable. With that notion in mind comes the Bail Reform Act.

The Bail Reform Act is a federal law that basically states that the default position that a judge must take is to release the person either on his own recognizance or on an unsecured bond unless certain criteria are met. This means that in most circumstances, the U.S. Attorney’s Office has the burden of showing by a preponderance of the evidence (legal standard meaning more likely than not) that the person should be held in pretrial detention because he is either a flight risk or is a danger to the community and no condition could be imposed to overcome those concerns. This means that if you’re accused of a federal crime, the judge is supposed to let you out unless the government convinces him or her otherwise.

Despite everything you just read, there are a series of crimes that if you are accused of the presumption goes the other way. Meaning the presumption is that you should be detained while you fight the case unless YOU can prove otherwise. Cases where pre-trial detention is presumed are drug cases carrying a 10-year mandatory minimum, use or possession of a firearm in connection with violent or drug crimes, conspiracy to kill, kidnap, or hurt someone in a foreign country, or terrorism cases. If you find yourself accused of one of these crimes then you must prove to a judge that you are not a danger to the community or a flight risk and that there is a way to guarantee your presence in court. This proof comes in the form a hearing where your lawyer provides evidence to contradict the government’s position.

So unlike in the New York State system where a judge sets a seemingly arbitrary amount of bail depending on what kind of a mood he or she is in, in the federal system a person is either bailed or detained depending on the kind of case that it is. In any case though, either the government or the defendant can argue for a change in the conditions depending on the kind of the criminal accusation. This is another reason why a good lawyer is a necessity in federal cases.

Another major difference is that if a judge sets a certain amount of bail, the way the person is bailed out in the federal system is he has a number of financially responsible individuals sign a bond on his behalf. Usually the bond is equal to a person’s yearly salary or a piece of property. For example, if a judge sets bail in the amount of $150,000 bond, three relatives or friends who each make $50,000 a year can act as the signors for the bond.

There is NO requirement that anyone has to actually give up any money and bail bondsmen aren’t really used in in the federal system. So unlike in the state system where if a judge sets $50,000 bail you have to either come up with the money or go to a bail bondsman who comes up with it for you, in the federal system no money is required to put down and the court provides the service the bail bondsman does. So if you don’t actually put up any money to back up the bond, what’s the insentive to not run away? Well, if you do run away, the federal government will seize the assets of the people who signed your bond and the fact that you don’t want your loved ones to be in financial ruin for the rest of their lives because you ran away is enough to keep most people in the jurisdiction.

The federal bail system is significantly better than the New York State equivalent and more people get out even they are facing significantly more jail time if convicted. But the law is still complicated and you will need a good lawyer to help you navigate it. If you or a loved one is being prosecuted for a federal offense, do not hesitate to contact an experienced New York City federal criminal defense attorney today.