Federal Detention Hearings and Pre-Trial Release
"I remember a Detention Hearing where
the government wanted to detain my client so they put their agent on the
stand to try and say bad things about my client. After cross examining
the agent, my client was released and we had learned valuable
information on how my client was investigated."
Miller Leonard
One of the first questions any person arrested and charged with a federal crime is going to ask their lawyer is will they be released on bond? Unlike state court where a bond is usually set immediately, it is common for Defendant's in Federal Court to undergo what is called a Detention Hearing in order for a Judge to determine whether or not a bond will be set.
Please keep in mind that not all offenses are the type for which a Detention Hearing will be held. Sometimes, the United States Attorney has no problem with a Defendant remaining free or agrees to bond.
What is a Detention Hearing and why do they have them in Federal Court? First, bail and or bond is governed by 18 U.S.C. section 3142(c)(2). The primary purpose of this act is to get away from money bonds and it is supposed to give Judges the ability to come up with alternatives to high bonds, which in practice can mean a person will stay in custody through the conclusion of their case. The other aspect of the law was to allow the government to detain - keep in custody - a person considered to be dangerous.
How will you know if the government wants to detain you? The government must request your detention at the initial appearance before the Court - this is required pursuant to 18 U.S.C. section 3142(f). The law actually provides that a person shall be released on his own recognizance or with personal recognizance unless the government can show the Court that the person charged is a serious flight risk (he is not coming back to Court) or that they present a danger to the community if released. Another reason to detain a person is that the government can show that they are going to be a threat to the witnesses who will testify against them at trial.
Common reasons to be detained are being charged with a crime of violence, which is defined in 18 U.S.C. section 3156 (a)(4). This law says that a charge is a crime of violence is there is an element of the use, attempted use, or threatened use of physical force against the person or property of another. This is, therefore, a fairly broad or large definition. Also, if the charge is a felony and by its nature involved a substantial risk that physical force against the person or property of another may be used in the course of committing the crime, it is defined as a crime of violence. Last, and felony charge that falls under sexual abuse or abuse of children.
You can also expect to have a detention motion filed if you are charged with any of the terrorist offenses that have penalties of over 10 years if convicted. This is not surprising as these type of charges allege substantial harm or the potential of substantial harm to others. Given the nature of these type of charges, it is likely a person charged with a terrorist offense will be detained.
Drug offenses can also trigger a request by the government for detention. If the drug offense involves a penalty of over 10 years can request detention. Many drug offenses do, in fact, carry such penalties.
A detention request can further be made if a person is charged with a felony offense and prior to the current charge that individual has committed two or more drug offenses or crimes of violence. Along these lines, a detention request can be made if a charge is one that involves a minor victim, involves the possession of a gun or some type of destructive device or if you are a sex offender and you are alleged to have failed to register as required.
Last, and really not a surprise, expect a detention motion if the charge involves, as a penalty upon conviction, imposition of the death penalty of life in prison.
A motion to be detained is a serious hearing that requires a lawyer who will go into Court and fight for your release. Defending your case while in custody is much harder than if you are out of custody. It is no time to roll over and often valuable information can be gained at the Detention Hearing by a Federal Criminal Defense Attorney who is willing to fight for your freedom.
