It may come as a surprise to most, including many criminal defense attorneys, that the federal system detains a greater percentage of people arrested than state systems. Since the Bail Reform Act (BRA), enacted in 1984, pretrial detention has significantly increased from 19% in 1985 to 75% in 2019, which is particularly astounding, considering violent crime accounts for only 2% of federal arrests.

The BRA provides that a court release a defendant on the “least restrictive” conditions to “reasonably assure” the appearance of the defendant and the safety of the community. Detention hearings shall only be held in cases which involve very specific factors that authorize pretrial detention. Such factors include drug offenses, certain gun and recidivist offenses, crimes of violence or terrorism, as well as offenses involving a maximum term of life in prison or death.

In 1987, when the constitutionality of the BRA was challenged, the United States Supreme Court stressed that “[i]n our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception.” However, statistics demonstrate that federal prosecutors around the country routinely and impermissibly seek pretrial detention at a far greater rate than allowed by the BRA. In spite of the fact that in 2019, 99% of federally-charged defendants appeared in court as required, and 98% of defendants did not commit new crimes while on pretrial release.

In an effort to counter a government’s claim of serious risk of flight, defense counsel may overcome the argument by demonstrating that the client has lived in the community for a long time, is married with children, is steadily employed, has no record of failing to appear, and/or no prior record. In cases involving serious risk of danger to the community, defense counsel may overcome the argument through similar factors, as well as additional conditions of release such as home confinement with electronic monitoring or third-party custodians.

Recently, the Judicial Conference of the Unites States asked Congress to narrow the presumption of detention in drug cases to only people with very serious criminal records. This is important given the push from the Department of Justice to federally charge a greater number of people arrested for state drug and gun offenses. Many lower-level drug offenders are scooped up under the guise that they are associated with organized drug distributors or gangs. Since federal cases routinely take far longer to resolve by plea or trial, individuals in federal pretrial detention face limited family contact and ready access to counsel, as well as loss of employment and ultimately harsher sentences.

It is critical to hire experienced federal criminal defense counsel when charged with a federal crime. Our attorneys are highly experienced in representing individuals charged with federal crimes where the government seeks pretrial detention. Mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person, through video conferencing, or by phone. Challenging times demand innovation and accommodation to our client’s needs. Stahl Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at