Why there is no bond in federal court

Federal court has no bail schedule and no bondsman industry attached to it, which means there is no number you can pay to get someone out. What there is instead is a statute, the Bail Reform Act of 1984, and a hearing.

The statute starts from release, not detention

That surprises people, because it does not match what actually happens. But read 18 U.S.C. § 3142(b):

The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

Shall order release. Unless. Personal recognizance just means release on your written promise to come back, with no money up front. The statute gives the judge four options in § 3142(a), which run in order from least restrictive to most: release on your own recognizance, release with conditions, temporary detention, detention.

And if conditions are needed, § 3142(c)(1)(B) requires the judge to impose the least restrictive condition or combination of conditions that will reasonably assure appearance and safety. Least restrictive there is a statutory command, not a preference.

The government cannot ask for detention in every case

This is the most under-used point in federal practice, and I want to be precise about it.

A detention hearing can only happen if the case fits one of the categories in § 3142(f). Under § 3142(f)(1), the government may move for a detention hearing only in a case involving a crime of violence, an offense carrying life imprisonment or death, a qualifying drug offense carrying ten years or more, certain repeat offenders, or certain felonies involving a minor victim, a firearm or dangerous weapon, a failure to register, or certain specified offenses under federal law. Under § 3142(f)(2), either the government or the judge may move for a detention hearing, but only where there is a serious risk of flight or a serious risk that the defendant will obstruct justice or attempt to threaten, injure, or intimidate a prospective witness or juror.

That is the entire list. There is no leftover category.

And the Fifth Circuit has said so directly in United States v. Byrd, 969 F.2d 106 (5th Cir. 1992):

A detention hearing can only be held in a case that involves a crime or circumstance set out in § 3142(f). A defendant’s threat to the safety of other persons or to the community, standing alone, will not justify pre-trial detention.

The Fifth Circuit applied the same principle in United States v. Okhumale, 813 F. App’x 936, 939 (5th Cir. 2020) (per curiam), explaining that § 3142(f) requires the presence of one of the circumstances specified in that subsection before a defendant may be detained, and that danger to the community, standing alone, does not create an independent basis for pretrial detention. Okhumale is an unpublished decision, so it persuades rather than binds, but it shows the rule being applied.

So an ordinary fraud or tax case that does not fall within any of the § 3142(f)(1) categories, and in which there is no serious risk of flight or serious risk of obstruction or witness intimidation under § 3142(f)(2), is not eligible for a detention hearing. And if the government moves for detention anyway, the first question is not whether your client should be released but whether the government has established a statutory basis for holding the hearing in the first place.

The presumptions, and why they are not what people think

In a lot of federal cases, especially drug cases, a presumption applies. Under § 3142(e)(3), if there is probable cause to believe you committed certain offenses, including a drug offense carrying ten years or more or a § 924(c) gun charge, the law presumes that no conditions will be enough to make sure you appear in court and keep the community safe.

An indictment is enough to establish that probable cause, so the presumption can apply automatically, before anyone has even made an argument to the judge.

But it is worth being careful about what the presumption actually does.

The burden of production shifts to you, but the burden of persuasion does not, which means you have to come forward with some evidence showing why you should be released. But the government still has to convince the judge that detention is necessary.

The Fifth Circuit explained that in United States v. Hare, 873 F.2d 796, 798–99 (5th Cir. 1989):

The presumption shifts to the defendant only the burden of producing rebutting evidence, not the burden of persuasion … the mere production of evidence does not completely rebut the presumption, and in making its ultimate determination, the court may still consider the finding by Congress that drug offenders pose a special risk.

So the presumption is not something you make disappear by putting on evidence, because even after you present evidence, the judge can still consider it when deciding whether you should be detained.

That changes how you prepare for the hearing. The goal is not necessarily to make the presumption go away, but to present enough evidence that, when the judge weighs everything together, what supports release outweighs it.

What the judge weighs

Four factors, from § 3142(g): the nature and circumstances of the offense, the weight of the evidence, your history and characteristics, and the nature and seriousness of the danger release would pose. The third of those is itself a long list, including character, physical and mental condition, family ties, employment, financial resources, how long you have lived here, community ties, history of drug or alcohol use, criminal history, and your record of showing up to court.

And the third one is where a detention hearing is won, which is also why it is the one that takes work to build.

Whether the statute is constitutional

The Supreme Court upheld the statute in 1987, in United States v. Salerno, 481 U.S. 739 (1987), holding that detaining someone before trial under this statute is regulatory rather than punishment. But the same opinion contains the sentence defense lawyers quote most often, and the one district judges quote back when they order release:

In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.

Carefully limited. That is the standard the statute sets, and it is the standard a detention hearing is supposed to hold the government to. The second post covers how you actually meet it.