After a federal arrest in New Jersey, the first major question is whether you will go home while your case is pending or remain in custody until trial. That decision is made at a federal detention hearing under the Bail Reform Act of 1984, 18 U.S.C. § 3141 and following. The federal process is different from New Jersey’s state system under the Criminal Justice Reform Act, and the outcome can affect everything that follows: your ability to work, support your family, help prepare your defense and negotiate from a position of strength.
At Keith Oliver Criminal Law, we prepare for detention hearings from the moment we are retained, gathering the information and support a federal magistrate judge needs to see. We appear in the federal courthouses in Newark, Trenton and Camden.
Photo: Carol M. Highsmith / Wikimedia Commons (Public domain)
- Federal court has no cash bail schedule. A judge decides release or detention under the Bail Reform Act, 18 U.S.C. § 3142.
- The hearing is held at the initial appearance or within about 3 days (government request) or 5 days (defense request).
- Many drug, firearm (§ 924(c)) and child-related charges carry a presumption of detention, which the defense can rebut.
- A magistrate judge’s detention order can be reviewed by a district judge under 18 U.S.C. § 3145(b).
What Happens After a Federal Arrest
A person arrested on a federal complaint or indictment is brought before a U.S. Magistrate Judge for an initial appearance, usually the same day or the next business day. At that appearance, the judge informs you of the charges and your rights, addresses appointment of counsel, and decides whether you will be released or whether the government’s request for detention will be heard.
Before the hearing, an officer from U.S. Pretrial Services for the District of New Jersey will usually interview you about your background, family, employment, residence, finances, health and criminal history, and prepare a report with a recommendation for the court. You should speak with your lawyer before that interview. The interview is not about the facts of the charges, and you should not discuss them.
When the Government Can Ask for Detention
Under 18 U.S.C. § 3142(f), the government may seek detention only in certain categories of cases, including:
- A crime of violence, sex trafficking of children or certain terrorism offenses
- An offense with a maximum sentence of life imprisonment or death
- A drug offense with a maximum of 10 years or more
- Any felony if the person has two or more prior convictions for these types of offenses
- A felony involving a minor victim, a firearm or other dangerous weapon, or failure to register as a sex offender
- Any case involving a serious risk that the person will flee, or a serious risk of obstruction of justice or witness intimidation
If the government moves for detention, it can ask for up to three days to prepare, and the defense can ask for up to five days, except for good cause. You remain in custody during that time, so preparing early matters.
Presumptions of Detention
In some cases, the law presumes that no condition of release will reasonably assure the person’s appearance and the safety of the community. Under § 3142(e)(3), this presumption applies when there is probable cause to believe the person committed, among other offenses:
- A drug offense under the Controlled Substances Act with a maximum of 10 years or more
- Using or carrying a firearm during a crime of violence or drug trafficking crime under 18 U.S.C. § 924(c)
- Certain offenses involving minors, including child pornography and online enticement offenses
- Certain terrorism and human trafficking offenses
An indictment establishes probable cause. The presumption shifts only the burden of producing evidence to the defense; the burden of persuasion stays with the government. The presumption can be rebutted with credible evidence, such as strong family ties, stable employment, a clean or minor record and a solid release plan. For more on these charges, see our pages on federal drug charges, federal gun charges and online enticement.
Factors the Judge Considers
Under § 3142(g), the judge weighs:
- The nature and circumstances of the offense charged, including whether it involves violence, a minor, a controlled substance, a firearm or explosives
- The weight of the evidence against the person
- The person’s history and characteristics, including character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history of drug or alcohol abuse, criminal history, record of court appearances and whether the person was on probation, parole or other release at the time
- The nature and seriousness of the danger the person’s release would pose to any person or the community
To detain someone, the government must prove risk of flight by a preponderance of the evidence, or danger to the community by clear and convincing evidence. The rules of evidence do not apply, so both sides often proceed by proffer, but the defense can present witnesses and cross-examine.
Release Conditions in Federal Cases
The Bail Reform Act directs judges to impose the least restrictive conditions that will reasonably assure appearance and safety. Possible conditions include:
- Release on personal recognizance or an unsecured appearance bond
- A secured bond backed by cash or real property, often co-signed by family members
- A third-party custodian, usually a responsible relative who agrees to report violations
- Home detention, curfew or home incarceration with location monitoring
- Surrender of passport and travel restrictions
- Drug testing, mental health or substance abuse treatment
- No contact with alleged victims, witnesses or co-defendants, and restrictions on internet or computer use
- Maintaining or seeking employment and reporting to Pretrial Services
Under § 3142(c)(2), a judge may not impose a financial condition that results in the person’s pretrial detention. A carefully assembled package of conditions, sureties and documentation is often the difference between release and detention.
Appealing a Detention Order
If a magistrate judge orders detention, the defense can file a motion with the district judge to revoke or amend the order under 18 U.S.C. § 3145(b). The district judge reviews the matter fresh. A hearing can also be reopened under § 3142(f) if new information that was not known at the time of the hearing has a material bearing on the issue. Further appeal is available to the U.S. Court of Appeals for the Third Circuit.
Where Federal Detainees Are Held
People detained on federal charges in New Jersey are in the custody of the U.S. Marshals Service. Detainees may be held in contract county facilities or in federal facilities outside the state, such as the Federal Detention Center in Philadelphia. Distance and limited access can make it harder to review discovery with counsel and to see family, which is one more reason to fight for release at the first hearing.
How We Prepare for a Federal Detention Hearing
- Contacting family members to identify sureties, third-party custodians and a suitable residence
- Gathering employment records, letters of support and proof of community ties
- Arranging treatment evaluations when substance use or mental health is an issue
- Reviewing the complaint or indictment to challenge the weight of the evidence
- Negotiating with the Assistant U.S. Attorney, since many cases resolve with agreed conditions
If a loved one has been arrested by federal agents, call us right away. You can also learn about the early stages of a case on our page about federal investigations and target letters, or about how a sentence is calculated in our guide to the federal sentencing guidelines.
Related Federal Defense Guides
- Federal investigations, target letters and grand jury subpoenas
- How the federal sentencing guidelines work
- Federal drug charges
- Federal gun charges
- Supervised release and federal probation violations
Frequently Asked Questions
Is there bail in federal court?
Federal courts do not use a cash bail schedule. Instead, a judge decides whether to release a person on conditions or detain them under the Bail Reform Act. A bond may be required, but a judge cannot set a financial condition that results in detention.
How soon is a federal detention hearing held?
Usually at the initial appearance or within a few days. The government can request up to three days to prepare and the defense up to five days, and the person remains in custody during that continuance.
What is a third-party custodian?
A third-party custodian is a responsible person, usually a family member, who agrees to supervise the defendant, help ensure court appearances and report any violation of release conditions to the court.
Can a detention order be changed later?
Yes. A magistrate judge’s detention order can be reviewed by a district judge under 18 U.S.C. § 3145(b), and a hearing can be reopened if new, material information comes to light.
Is a federal detention hearing the same as a New Jersey state detention hearing?
No. State cases follow the Criminal Justice Reform Act and the New Jersey Court Rules, while federal cases follow the Bail Reform Act. The standards, presumptions and procedures differ, so it is important to have a lawyer experienced in federal court.