Bail in Federal Cases

Bail is the release of a Defendant following their arrest. It is essentially a promise to appear at hearings that are held later in the case. Bail can be posted with money, property, or both. In some cases a Defendant can also be released on a signature bond or personal recognizance which is a promise to return to court without posting money or property.

The following is general information about bail as well as some information specific to the Southern District of California. In all cases, we suggest reaching out to an experienced attorney to get help with bail and detention hearings because every single case is specific to that Defendant.

A Defendant Has a Constitutional Right That Prohibits Excessive Bail*

The Eighth Amendment to the United States Constitution states that “excessive bail shall not be required.” The asterisks here though is that the United States Supreme Court has held that this amendment does not “grant an absolute right to bail.” See United States v. Salerno, 481 U.S. 739 (1987). What this means is that bail is not granted automatically in every case.

In 1984, Congress passed the Bail Reform Act of 1984. This act is codified at 18 U.S.C. §§ 3141-3156. What is important to know is that the Bail Reform Act provides guidelines that a judicial officer must follow when they consider whether a Defendant should be released or detained while their criminal case moves forward. These are basically the directions to the Court to follow in considering bail.

What Are the Factors a Court Looks at in Granting Bail?

18 U.S.C. § 3142 has several categories of pretrial release or detention. These are essentially the possible outcomes of a Detention Hearing:

• Released on personal recognizance or upon execution of an unsecured appearance bond as set forth in Section 3142(b);

If a person is released on a “PR” bond (aka a signature bond), they are agreeing to return to Court on their own and they also agree not to commit any Federal, State, or local crime during the period of release. Section 3142(b) also requires that a Defendant cooperate in the collection of a DNA sample. If the judicial officer determines that the release will not reasonably assure the appearance of the person or will endanger the safety of other persons or the community, a PR bond will not be set.

• Released on a condition or combination of conditions set forth in Section 3142(c);

There is laundry list of conditions that are included under this code section that involve employment, education, restrictions on personal associations, contact with victims, possession of firearms, use or possession of drugs and alcohol, and other conditions. This section additionally contains provisions regarding the execution of an agreement for property or money to be posted and/or for sureties to sign a bail agreement.

• Temporarily detained to permit revocation of conditional release, deportation, or exclusion under Section 3142(d);

Detention will almost always be ordered (bail not set) if someone committed the instant offense while:

• (1) Out on release pending a trial for a felony (meaning they had another felony case going at the time of arrest);
• (2) They were out on release pending the imposition of a sentence from a conviction; or
• (3) They were on probation or parole for any offense.

Courts will also detain someone who is not a citizen of the United States or lawfully admitted for permanent residence as defined in the Immigration and Nationality Act.

Even if some of these conditions exist, a Court can still order the release of a Defendant on bail but they do have to look at other factors.

• Detained pursuant to Section 3142(e).

If a judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of a person and they believe the safety of any other person or the community will be at risk, a Defendant will be ordered detained.

When Is Bail Set in the Southern District of California?

Bail can be set at an Initial Appearance or a Detention Hearing. A United States Magistrate Judge will preside over the hearing and will make a decision whether to release someone and/or what type of bail must be posted.

Bail Was Set, How Long Until a Defendant Is Released in the Southern District of California?

It can take up to ten days or more to get everything signed and approved when a surety is required. The process includes preparation of bail documents including an Appearance Bond, Bail Information Sheet and Surety Addendum. These forms are all found on SDCA’s website located here. Our office also will need to collect the following from each surety:

• Two forms of government identification (license and passport are typical)
• Proof of assets including W-2s, recent pay stubs, deed of trust with a Zillow report, savings, retirement or investment account statements, and car registration and title with blue book value.

Once all of this information is collected and bond is paid to the Court Clerk (if necessary), a bond packet is submitted to the United States Attorney’s Office for approval. Once approved, all of this is submitted to the Court for signature and processing so that a Defendant can be released.

Get Help With a Federal Criminal Case in California

For more information or to set up a consultation with a federal criminal defense attorney, contact Rist Law Offices by calling (619) 377-4660.