In the federal system, most people charged with non-violent offenses are released on conditions after their first appearance before a magistrate judge. Conditions of release are meant to reasonably assure the appearance of the defendant in court as required, as well as the safety of any other person or the community pursuant to 18 U.S.C. §3142(c). Conditions may be as simple as release on an unsecured appearance bond (meaning no property or money is posted); travel restricted to the continental United States; surrender of one’s passport; surrender of any firearms; and telephonic or in-person reporting to Pretrial Services. In certain serious cases, conditions of release could be very stringent, requiring home detention with electronic monitoring where the person is only allowed out of the home for pre-approved visits with their attorney or medical appointments; surrender of family members’ passports; the posting of real properties with substantial equity; and release of the defendant to third party custodians who are required to report any violations of the release conditions to the court.

What conditions, if any, the court mandates depends in part upon the recommendations of Pretrial Services (PTS). PTS is an arm of the court, and interviews the charged individual about their background; prior addresses; prior criminal record; assets and liabilities; frequency of travel outside the United States; and the existence of any physical or mental health issues. After reviewing the charges and the person’s history, PTS gives the court its position, relaying whether it believes release on conditions is possible and what conditions, if any, the court should order.

The magistrate judge presiding over the detention hearing has the final say on a defendant’s release, and can choose to adopt Pretrial Services’ recommendations in whole or in part, or reject them entirely. In determining whether there are conditions of release that will reasonably assure the appearance of a person and the safety of any other person or the community, the court will consider the factors set forth in § 3142(g), not one of which is dispositive and all of which must be weighed with the underlying principle that only “a limited group of offenders” should be denied bail pending trial.

Those factors include:

  1. The nature and circumstances of the offense charged, including whether it is a crime of violence;
  2. The weight of the evidence against the person;
  3. The history and characteristics of the person, including the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, drug or alcohol problems, criminal history and any past record of missing court appearances; and
  4. The nature and seriousness of the danger posed to any person or the community if the person was released, including intimidation of prospective witnesses or jurors

If the government moves for pretrial detention, risk of flight must be demonstrated by a preponderance of the evidence; it must prove that no conditions of release can reasonably assure the presence of the defendant at trial. Dangerousness requires proof by clear and convincing evidence that no conditions of release can reasonably assure the safety of others or the community. Certain violent crimes and drug offenses carry a presumption of detention that must be overcome by the defense to secure the person’s release pending trial. The rules of evidence and admissibility do not apply to these hearings, and the government may proceed by way of proffer of evidence or witnesses. The defense has the opportunity to present their own witnesses, as well as cross-examine any government witnesses, and the defendant has the right to testify.

Stahl Criminal Defense has successfully argued numerous bail and detention hearings, as well as successfully appealed detention orders. We at Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at