Release on Bond in Federal Court

When you are charged with a crime in Texas state court, it is common to eventually obtain your freedom pending trial by paying a bail bond. This system allows you to pay an amount of money set by the court which is held as long as your case continues. If you fail to make a court appearance or show up at trial, your money is forfeit.

Unfortunately, there is no system of bail in federal cases. While you do have the opportunity to leave jail pending trial, the federal courts rely on a complex pre-trial release program that determines if you will be released pending trial.

The ability to help you get out from behind bars while you prepare for your defense is one of the most important roles a Houston federal defense attorney can take on. You are not guaranteed release prior to trial, so it is vital that you make the best case possible at your initial hearing. If you are facing federal charges in the Houston area, let attorney Doug Murphy advise you on how best to approach your detention hearing strategy.

Federal Statutes Related to Release on Bond

There are two statutes that play an important role in the process of conditional release following an arrest for a federal crime. 18 U.S.C.§ 3142 provides the court with options for release pending trial, while 18 U.S.C. § 4285 gives the court leeway to provide a defendant with the financial means to attend their court days if they lack the means to do so themselves.

18 U.S.C.§ 3142

Section 3142 is the cornerstone of the process of release and detention in federal cases. This statute requires all defendants to appear before a judicial officer after being charged with a federal offense. The court has a range of options, from releasing the defendant on their own recognizance to detaining them until trial. At that hearing, both the state and the defendant will have the opportunity to make their case on how the court should rule. The four options listed under this section of the statute include:

  • Releasing the defendant on their recognizance or an unsecured bond
  • Released on conditions
  • Temporarily detained to allow for deportation or revocation, or
  • Detaining the defendant.

Release on Recognizance

The most favorable outcome at a detention hearing is for the court to release you on your own recognizance or on an unsecured appearance bond. If the court opts for a bond, they will set the amount. However, federal law prevents it to be so high that the amount itself is unreasonable. This form of release does come with other conditions, however, as these defendants are required to submit their DNA and acknowledge their release will be revoked if they commit a state or federal crime.

The statute says that the judicial officer overseeing the detention hearing shall choose this option, seemingly making it mandatory. However, the law provides the judicial officer with the power to refuse this option if they determine that “such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”

Release on Conditions

In some cases, the court determines that the defendant should be released, but that doing so requires more conditions that on their own recognizance. These conditions will always include the requirement for submitting DNA and avoiding additional arrests. However, there is a wide range of other conditions that the court could also set in exchange for a defendant's release pending trial. While a judge has leeway in setting these conditions, they must be the least restrictive options that will assure the defendant appears at their future court hearings. These conditions could include:

  • Remaining in the custody of a designated person that agrees to supervise your release,
  • Maintaining employment or actively seeking employment,
  • Maintaining or commencing formal education,
  • Avoiding contact with any complaining witnesses involved in the case,
  • Regular reporting to designated law enforcement agencies,
  • Refrain from possessing firearms or destructive weapons,
  • Refrain from excessive use of alcohol,
  • Refrain from use of narcotics or other controlled substances without a prescription,
  • Undergo any required medical or psychological treatment,
  • Returning to custody if released for a limited purpose, and
  • Satisfying any other reasonable condition set by the magistrate.

Temporary Detention to Permit Revocation of Conditional Release

In some cases, law enforcement agencies or the prosecution will have other plans for a defendant. This can occur if the defendant is in violation of immigration laws or has committed a crime while out on bond. The courts have a special option in these cases to order a defendant to be temporarily detained until the government has time to move forward with revocation or deportation.

This option is specific to individuals that are either non-citizens that were not lawfully admitted to the United States, or for someone that is already released pending trial or sentencing in federal court.

This form of detention is short-term. It gives the government ten days, not including Saturdays, Sundays, and holidays, to make arrangements for the defendant's next step. This can give the prosecution time to prepare a motion to rescind release or to initial deportation proceedings.


The final option available to the court is to detain the defendant pending trial. This option is only available if the judicial officer finds that there are no conditions or set of conditions that can guarantee the public's safety should the defendant be released.

The defendant is entitled to contest their detention at the hearing. However, there is a presumption that no condition will be sufficient if the court finds probable cause to believe the defendant committed certain major federal crimes.

18 U.S.C. § 4285

Section 4285 provides supplementary protection for low-income federal defendants. If the court determines that a defendant lacks the financial means to ensure their ability to travel to court for each hearing or trial following pre-trial release, the court is empowered to arrange for non-custodial transportation or provide fare for travel. This fare is one-way, meaning it is up to the defendant to find their way home.

Release and Bond Process

There are two general processes a case might take prior to release pending trial. The first option involves the federal government issuing a summons to appear at the detention hearing, possibly as part of a plea bargain agreement. Otherwise, federal officials will arrest the accused and hold them in custody until the hearing date.

In some cases where the United States Attorney works with a defendant's legal counsel to secure their voluntary appearance, the two sides might agree to a recommended bond amount prior to the hearing. However, if the defendant is arrested the amount of the bond could be a point of contention at the hearing.

The federal magistrate will consider a range of factors, which we discuss in depth below. Then, they will determine if a defendant should be released pending trial and if so, what conditions should attach.

Factors a Judge Considers at a Detention Hearing

There are many factors a federal magistrate must consider when determining whether or not to release a defendant pending trial. First and foremost, the court will determine if the defendant poses a threat to the community. When determining if the defendant is a threat, the magistrate will consider all relevant factors. This includes any criminal history the person might have, as well as the nature of the offenses. A person with a large number of prior violent convictions is more likely to be detained until trial than a person with no criminal history whatsoever.

The magistrate will also consider whether or not you are a flight risk. A flight risk is a person that is likely to flee the jurisdiction in an effort to avoid trial. When identifying a flight risk, the court will first look to see if the defendant has a history of failing to appear in court. The magistrate will also review the nature of their criminal history to review for fraud and identify if that person is known for using aliases. The court will also look at the defendant's ties to the community. A person who has lived in the area for decades is more likely to be released than a person who has not been there long. Residents of foreign countries that are likely to return there without facing trial are often considered flight risks, but the court can take a defendant's passport and bar them from leaving the country. This process also involves a review of your employment in the area and whether or not the defendant has family nearby.

Let a Board-Certified Expert in Criminal Defense Law Guide You

The most important factor at your detention hearing is your legal counsel. A Board Certified expert in criminal defense law represents your best chance to avoid detention in the lead-up to your trial date. Doug Murphy is a Board Certified expert in criminal defense law that has extensive experience in federal court. Contact the Doug Murphy Law Firm, P.C. today to learn how he can help.

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