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Bail in federal cases, generally

The federal and state systems handle bail in very different manners. State courts routinely operate on a cash bail system using bail bondsmen. The bondsmen agree to post bail for a fee and keep that fee as part of the agreement. Federal bail typically requires family or friends to act as the surety for detained individual. That means that their assets and income are put at risk to secure the release of the person that was detained.

At the initial appearance in federal court, the judge will either set conditions for bail or set a detention hearing. The government will either have to establish that the person charged is a "risk of flight"––that they will not return to court if released on bail––or they are a danger to the community. The defense attorney will need to rebut these claims to challenge the prosecutor's request to have the person remain in custody as the case goes forward.

If bail is granted, the court will issue an appearance bond. This will be either with conditions or without. The specifics of the bail depend on all of the facts and circumstances of both the crime charged and the individual requesting bail. Federal bonds are performance bonds, so the ability to remain on bail depends on both returning to court as ordered by the judge and following the conditions of release. Failure to do either and the bail could be forfeited and the bond revoked. That means that the surety could be ordered to pay the full amount of the bond and the person charged will go back into custody. Additional charges could be filed depending on the circumstances that led to bail revocation. The court can order bail secured by real property, cash, the signature of the surety as a promise to pay if the person charged fails to perform as ordered, or a combination of these forms of collateral.

While on bail, the person charged will be supervised by a federal Pretrial Services Officer. It is essential to work with this officer in order to remain on bail. If successful on bail, the court will order the bond to be exonerated at the end of the case and––if required by any conviction for the offense––once a convicted defendant surrenders to serve a custodial sentence. The financial obligations will no longer attach to the surety when the bond is exonerated, and any collateral––such as a cash deposit––will be returned to the surety.

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