A common question, and misconception, is whether some who is charged with a criminal offense in federal court can get bail. While there are some jurisdictions that do utilize a typical bail system, in Arizona federal courts, bail is a rarity and, like most federal courts around the United States, the Bail Reform Act is utilized.
What is the Bail Reform Act?
Implemented in 1984 and codified at 18 U.S.C.§ 3142, the Bail Reform Act operates with two guiding principles in mind:
- Is the defendant a danger to the community?
- Is the defendant a flight risk?
Let’s look at each individually.
If someone is charged with a violent crime, has a history of committing violent crimes, of if the charges involves a gun, the government's burden is to establish by clear and convincing evidence that no conditions of release will reasonably assure the safety of the community.
If there is evidence that a defendant is a flight risk due to factors like prior failures to appear, lack of a stable residence, or a drug problem, the standard is different when the issue is whether any conditions of release will reasonably assure the defendant's attendance at trial (risk of flight); the government need only prove that there are no such conditions by a "preponderance of the evidence."
What are Reasonable Conditions that Mitigate Danger or Flight
Within the assessment of whether someone is a danger to the community or a flight risk, federal judge can impose conditions such as drug testing, electronic monitoring, home confinement, surrendering of one’s passport, and third-party custodians (usually a family member). Having family present at a detention hearing can be critical to demonstrate to the Court that the defendant has strong community support. This can have a significant impact on diminishing any perception that someone is a flight risk.
Cases in Which There is a Presumption of Detention
Federal law provides for circumstances in which it is presumed that someone will be held in custody. Those circumstances include:
- a crime of violence which carries a maximum term of imprisonment of 10 years or more upon conviction;
- an offense for which the maximum sentence is life imprisonment or death;
- a drug offense (typically a drug trafficking offense) which carries a minimum sentence of imprisonment of 10 years or more upon conviction
- any felony if someone has been convicted of two or more of the offenses listed above
- 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, or any other dangerous weapon, or involves a failure to register.
But presumptions can always be rebutted, and release can still occur. The arguments and approach to accomplish this are unique and nuanced and should only be attempted by an experienced Phoenix federal criminal defense attorney. Having practiced largely in federal courts in Phoenix and Tucson, Arizona, not to mention around the country, for nearly 30 years, I have had tremendous success in getting clients released from federal custody, even in circumstances where no one thought it was remotely possible. (e.g. getting a client release after being arrested for possession with intent to distribute 20 kilograms of cocaine and related conspiracy and money laundering offenses).
Will I Be Released from Federal Court in Arizona
While every case is vastly different and fact dependent, there are some general trends in Arizona. First, people charged with white collar crimes such as wire fraud, healthcare fraud, and other non-violent offenses are almost always released so long as 1) they do not have a criminal history (few do), and 2) there are not significant assets that are unaccounted for that could be used to flee from prosecution.
Defendants charged with major drug offenses in Arizona are actually more likely to be released than defendants with identical charges in other federal jurisdictions. Because Arizona is so close to the border, the quantities of drug seizures are far higher than in other parts of the country. For example, while the seizure of 100,000 pills may be astonishingly high and unprecedented in federal courts in Minnesota, New York, and other states, the sad reality is that such a quantity is very much the norm in Arizona. The likelihood of getting released on these federal drug charges in Arizona is far higher than elsewhere, where detention is almost a virtual certainly.
Accordingly, if someone is arrested outside of Arizona on a federal arrest warrant which originated in Arizona, it’s usually advisable to not have a detention hearing where arrested and wait until one can be held in Arizona. This is know as reserving a detention hearing.
GET AN EXPERIENCED ARIZONA FEDERAL CRIMINAL DEFENSE ATTORNEY
Federal cases can take months, if not years to get to trial. It’s always better to fight your case on the outside than to fight it from inside a federal prison. In addition to adding to the complexity of your case, you are away from your family, and are not able to work and earn a living. It’s therefore critical to hire an experienced Arizona federal criminal defense attorney like Jason Lamm immediately before any release conditions are decided by a federal judge. Being proactive in your defense can make all the difference in the world for you, your family, and your future.
If you or someone you love is under federal indictment or is the subject or target of a federal criminal investigation that could lead to charges, contact Jason Lamm at (602) 663-9100 to set up a personalized and confidential consultation.