Bail after Federal Arrest in Texas and The Bail Reform Act of 1984

Bail after an arrest by federal law enforcement is very different than when someone enters the state criminal justice system.  Texas bail is allowed much more often than it is in federal court.  It’s not that bail is not routinely considered a part of federal matters.  News coverage is filled with federal bail stories.

This month, for instance, reality TV stars Todd and Julie Chrisley had their request for bail denied by the judge and will almost immediately start serving their time on federal fraud charges.  Read, “Todd and Julie Chrisley Are Denied Bail Pending Appeal, so Prison Starts Next Week,” written by Alexandra Del Rosario and published by Los Angeles Times on January 11, 2023.

The founder of cryptocurrency exchange FTX and Alameda Research trading firm Sam Bankman-Fried, recently made news when a federal judge set bail at $250 Million on his pending federal fraud, conspiracy, and money laundering charges.  This is a remarkably high bail amount.  Controversy surrounds how it was granted while Bankman-Fried was fighting extradition in the Bahamas, and who the four co-signers are for the bail amount.  Read, “How Did Sam Bankman-Fried Make His $250 Million Bail?” written by Jonah E. Bromwich and published by The New York Times on December 23, 2022.

Another big federal bail story:  $500,000 bail was granted to Fetty Wap on federal drug trafficking charges and then revoked after he was seen on a FaceTime call waving “what looked like a gun” and threatening to kill someone. Read, “SEE IT: Rapper Fetty Wap waves gun during FaceTime death threat, feds say, bond revoked,” written by John Annese and published by the New York Daily News on August 8, 2022.

Federal bail does the same thing for federal defendants as it does for those accused of violating Texas state law.  Bail, once granted and paid, returns freedom to the accused subject to the conditions set by law and by the judge.

From a criminal defense perspective, the constitutional protections found in the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment apply to both jurisdictions: state and federal.  After an arrest on state criminal charges in Texas, a judge decides the bail amount and then the accused posts bail (often with the help of a bail bondsman) in order to regain their freedom.

However, when an arrest is made pursuant to federal law, things are different and more complex.  After a federal arrest, the defendant will be released on bail only in accordance with specific procedures contained in the Bail Reform Act of 1984, 18 U.S.C. § 3142 (“BRA” or “the Act”).

• For more, read our discussion in The Early Part of a Texas Criminal Case in State or Federal Court.

What is the Bail Reform Act of 1984?

As the United States Supreme Court explains, Congress passed the Bail Reform Act of 1984 to address “numerous perceived deficiencies in the federal bail process.”  United States v. Salerno, 481 U.S. 739, 742, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987) (“Salerno”).

The new legislation contained “… sweeping changes in both the way federal courts consider bail applications and the circumstances under which bail is granted,” where courts would have “…adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released.” Salerno, 481 U.S. at 742 citing S. Rep. No. 98-225, at 3.

The Act comes with specific guidance and requirements for granting bail as well as for detaining an arrestee.  As a general rule, bail should be granted.  The Justice Department as well as longstanding case precedent acknowledges a legal presumption in favor of granting bail.

The Department of Justice recognizes in its  Justice Manual (“JM”) that the Bail Reform Act, 18 U.S.C. §3141 et seq., includes “the attendant presumption in favor of bail for persons facing trial.” JM §9-6.000.

Why? Bail is seen as crucial to maintaining the presumption of innocence that is the cornerstone of our criminal justice system.  As explained by the High Court in Stack v. Boyle, 342 U.S. 1, 4, 72 S. Ct. 1, 96 L. Ed. 3 (1951): “Unless th[e] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”

This perspective may not jive with the realities of bail hearings in Texas’ federal courts today.  All too often, criminal defense lawyers face a tremendous challenge in getting bail release for those arrested on federal charges.  See, New University of Chicago Study’s Shocking Revelations of Federal Bail Injustice: Systemic Errors and the “Culture of Detention.”

Federal Arrest and Getting Out on Bail

When someone is arrested on federal charges, they are taken into custody and within a short time are brought before a federal magistrate judge for their Initial Hearing. It will be the first time the accused comes into the courtroom.

At this juncture, the formal charges are read to the defendant and other legal rights are explained, such as the right to appointed counsel if they are indigent.  A hearing date is set to decide bail or release or detention until trial.

There is no standardized bail schedule in federal court.  Under the Act, a hearing must be held where the federal judge decides a specific bail amount for that particular defendant.  This is an evidentiary hearing.

At that hearing, the AUSA will address the court with the government’s recommendation on bail release, including any detailed conditions of release.  The federal prosecutor also has the discretion to argue that the defendant should not be released for any reason, but remain behind bars until trial.  This is called “pretrial detention.”

Furthermore, the Federal Pretrial Services report will be entered into the record.  That will include any past criminal history of the accused as well as things like past employment history; finances; ties to the community; and the location and residence of family and friends. It will also include a recommendation on bail.

From BRA §3142(a):

Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be—

(1) released on personal recognizance or upon execution of an unsecured appearance bond, under subsection (b) of this section;

(2) released on a condition or combination of conditions under subsection (c) of this section;

(3) temporarily detained to permit revocation of conditional release, deportation, or exclusion under subsection (d) of this section; or

(4) detained under subsection (e) of this section.

What are Federal Pretrial Services?

There is a Pretrial Services Department (“PSD”) for each federal judicial district in Texas.  This department undertakes the first investigation into those individuals who are coming before the federal judge for a bail hearing.  It is a separate department from the AUSA.

The PSD not only investigates, but it takes its findings and compiles an official report which is provided to the judge for consideration in deciding on bail under the Act.

This PSD report is very important.  It has details regarding the accused’s personal life and past history as well as an official PSD recommendation on whether or not the accused should be released on bail, and if so, what conditions should be imposed as a part of that bail release.  See, 18 USC § 3154(1).

As explained by the United States Probation and Pretrial Services for the Northern District of Texas:

Pretrial is the time period after an individual has been arrested but before they have been convicted of a crime. During this time period, a pretrial services officer will gather information about the defendant through interviews and record checks. The pretrial services officer reports the information to the judge, so the judge can decide whether the defendant can be released on pretrial supervision or should be detained.

At a detention hearing, the judge will decide whether or not to grant pretrial release. If the defendant is granted pretrial release, the pretrial services officer will supervise the defendant to ensure they are not a danger to another person or the community, the conditions of their release are met, and they attend all required court hearings.

Pretrial supervision ends if the defendant is found not guilty at trial or the charges are dropped against him or her. If the defendant is found guilty or pleads guilty, the pretrial services officer will typically continue supervising the defendant until their sentence begins. Pretrial supervision usually lasts a few months, during which time a probation officer may start the defendant’s presentence investigation.

From a criminal defense standpoint, it is vital that the accused’s position be voiced to the PSD as they undertake their investigation and begin work on the PSD Report with its findings and recommendations.  The defense can help convey details regarding the accused’s willingness to comply with the process, including identifying all property that can be made available in posting bail, as well as ties to the community and family members or loved ones who are able to co-sign as part of a bail release.

The defense will also be given a copy of the final PSD Report, which can be very important when making arguments for bail before the judge at the hearing.

Arguing for Bail Release Under the Act

Under the Act, the judge has two overriding concerns for bail release.  The judge must decide if there can be conditions of release, including bail, that (1) will reasonably assure the defendant’s appearance for trial while (2) making sure that both the community and other people, such as the crime victim and any fact witnesses, are safe during the pretrial release.  BRA §3142(f).

1.  Defense Preparation for Bail Hearing

This means that the defense must be prepared to counter arguments made against bail release that will be advanced by the government – as well as any concerns that may come from the bench about safety of others and confidence that the accused will not run away if freed.

The defense must also be ready at the hearing with admissible evidence to show that the Act’s conditions for bail release can be met by the accused.  Advocacy will focus upon an argument that bail should be allowed pursuant to the BRA’s recognized presumption of granting bail — and the overriding constitutional presumption of innocence of the accused.

2. AUSA Burden of Proof at the Bail Hearing

At the hearing, the government has to provide by a preponderance of the evidence that “…no condition or combination of conditions will reasonably assure the appearance of the person as required” or by clear and convincing evidence that “no condition or combination of conditions will reasonably assure … the safety of any other person and the community.” BRA §3142(e)-(f); see United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985).

The defense must understand the different levels of proof required under the Act for the AUSA to meet, as well as being ready at the hearing to object when these burdens are not met.  If the AUSA fails to meet evidentiary burdens, then the government has failed to make its case against bail release.

3. Judge’s Decision on Bail Release

The judge is given directions under the Act in how to make the release decision.  The defense must be ready to respond in a manner favorable to bail release with a consideration of these statutory directives to the court.  From BRA §3142(g):

The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning—

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including—

(A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. In considering the conditions of release described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.

4. Review of Judge’s Bail Decision

What if the magistrate rules against the defendant on a bail release?  The defense can ask for judicial review of the decision.  A federal district court will review a magistrate’s pretrial-release order de novo and “…must make an independent determination of the proper pretrial detention or conditions for release.” United States v. Rueben, 974 F.2d 580, 585 (5th Cir. 1992).

Types of Federal Bail

Federal bail usually involves money and property.  Cash bail is often provided by the defendant in federal proceedings.  The defendant may post their own money as well as other property as collateral.  Others can post collateral, as well, to support the bail release.  Family members may place homes or other valuable property as collateral.

If the defendant’s bail is revoked and an order is issued for their return to custody, then the property put up by the accused as well as their sureties will be subject to forfeiture.  For more on forfeiture, read Federal Forfeiture Reform: 81% Property Seized By DOJ from People Never Charged With a Crime.

Who Does Not Get Bail Under the Act?

The Bail Reform Act provides for the defendant to be detained by the government behind bars without bail pending trial or other resolution of the criminal proceedings in statutorily defined instances.  See, United States v. Turner, No. 5: 21-cr-494-OLG (W.D. Tex. Apr. 21, 2022).

Five Categories of 18 USC §3142(f)(1)

If the offense contained in the charge prepared by the AUSA is within five (5) specific categories of the Act, the government can argue for denial of any defense request for pretrial bail release.  18 USC §3142(f)(1). They are:

1. a crime of violence, a violation of section 1591, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed;
2. an offense for which the maximum sentence is life imprisonment or death;
3. an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46;
4. any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or
5. any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon, or involves a failure to register under section 2250 of title 18, United States Code.

Serious Risk Under 18 USC §3142(f)(2)

Additionally, there will be no bail release under BRA §3142(f)(2) if either the judge finds or the AUSA successfully argues against bail release under the Act because:

1. There is “a serious risk” the defendant will flee; or
2. the defendant “will attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure; or intimidate, a prospective witness or juror.“

Crimes Under 18 USC § 924(c)

The Act considered charges pursuant to 18 USC § 924(c) to have no bail release unless the defense can overcome the statute’s rebuttable presumption that no condition or combination of conditions can reasonably assure the safety of the community.  BRA §3142(e)(3)(B); United States v. Sims, 801 F. App’x 324, 324 (5th Cir. 2020); United States v. Farguson, 721 F. Supp. 128, 129-31 (N.D. Tex. 1989).

Here, the defense must bring forward admissible evidence to rebut the presumption.  This is a complex undertaking, since there will have been an indictment in the matter and the AUSA keeps a burden of persuasion under the Act to try and keep the accused behind bars pending trial.  Rueben, 974 F.2d at 586.

• For more on 18 USC § 924(c) charges, read Guns and Drug Trafficking:  Firearms and Mandatory Minimum Sentences under Federal Law.

The Rebuttable Presumption of Detention Under 18 USC §3142(e)

When considering whether or not bail is available to federal defendants, it is very important to talk about the protections found in BRA §3142(e).  This portion of the Act gives the defense an ability to argue for bail release even though there is a presumption of detention, and no bail, for certain offenses.

This rebuttable presumption of detention comes up a lot in federal detention hearings here in Texas. This especially true in drug cases.  All too often, defendants arrested on federal charges simply give up and waive the entire detention hearing in these cases.

However, an experienced federal criminal defense lawyer may be able to counter the presumption for detention, by going ahead with the hearing and providing evidence on the BRA §3142(f) factors.

Specifically, BRA §3142(e)(2)  states (emphasis added):

In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if such judicial officer finds that—

(A) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed;

(B) the offense described in subparagraph (A) was committed while the person was on release pending trial for a Federal, State, or local offense; and

(C) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in subparagraph (A), whichever is later.

A detailed analysis of the rebuttable presumption of detention found in BRA §3142(e) was recently provided by the U.S. Court of Appeals for the Seventh Circuit in United States v. Wilks, 15 F.4th 842 (7th Cir. 2021).  While this is not the federal appellate court for Texas (we are controlled by the Fifth Circuit), this opinion is enlightening regarding how bail release may still be provided upon a defense argument even when detention is presumed under the Act.

From Wilks, 15 F.4^th at 846-847:

A defendant charged with a serious drug crime, like Wilks, is subject to a rebuttable presumption that there are no conditions that will assure his appearance and the safety of the community.  Id. §3142(e)(3)(A). This places a light burden of production on the defendant, but the burden of persuasion always rests with the government and an unrebutted presumption is not, by itself, an adequate reason to order detention.

For more, read the excellent analysis of Wilks provided by Alison Siegler and published by the renowned law blog, Sentencing Law and Policy on January 19, 2022.  Alison Siegler is the Clinical Professor of Law and Director of the University of Chicago Law School’s Federal Criminal Justice Clinic. For more on Professor Siegler, read our recent article, University of Chicago Study’s Shocking Revelations of Federal Bail Injustice: Systemic Errors and the “Culture of Detention.”

Criminal Defense in Federal Bail Hearings

Federal charges require the accused to argue the right to pretrial release pursuant to the provisions of the Bail Reform Act.  These can be complicated proceedings.  The magistrate will consider not only the pleadings on file which will itemize the serious criminal felony charges and counts, but there will be evidence and proffers presented during the hearing itself.  The Pretrial Services report will have great influence.  And, importantly, there are the judicial guidelines found within the Act itself for the judge to follow.

The defense has the task of countering arguments against bail release not only with its own evidence but with challenges to the government’s assertions to show that conditions exist which do, indeed, protect against the defendant’s flight while simultaneously ensuring the safety of others.

Federal bail can be achieved and those accused of federal crimes may, as a general rule, be released pending trial subject to conditions set by the court.  There are exceptions, of course.  However, having an experienced and zealous federal criminal defense attorney advocating on your behalf as soon as possible in the case is imperative. 

For more, read:

• Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview
• What Happens When You Plead Guilty to a Federal Drug Crime? From Guilty Plea to Sentencing Hearing in a Drug Case
• Prosecutors Have Standards to Follow: the Federal Principles of Prosecution
• 5 Things to Know About Plea Bargains.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Federal Sentencing Guidelines on Federal Child Pornography cases.”