Despite certain trends that indicate a softening of aspects of the government’s war on drugs, there is still a tremendous number of investigations and arrests for narcotics distribution in the federal system. Additionally, other federal law enforcement initiatives are still proceeding full steam ahead. In other words, there is no softening of the federal government’s efforts to punish wire fraud, mail fraud, money laundering, firearms trafficking, Medicare fraud and a whole host of other offenses. The federal law enforcement apparatus appears stronger than ever, resulting in more and more arrests.

This puts the loved ones of targets in a tough position because federal approaches to bail and detention can be quite confusing. This is for a few reasons. First, most people are unfamiliar with what to do if a loved one is arrested, regardless of whether the arrest is for a state charge or a federal charge. Second, most media depictions of arrests show a state system that is mostly based on monetary collateral to ensure a defendant’s appearance in court.

Can a person bond out if they are charged with a federal crime?

As a threshold consideration, a bond exists to ensure a defendant’s appearance in court and safety to the community while a defendant is released. Thus, the deciding judge will determine whether the defendant will show up for court and avoid committing crimes while out on bond.

It is important to recognize that, when it comes to bail, federal cases do not generally operate in the same manner as state cases. Take the following example: Imagine a 24-year-old male is arrested after a search of his home. Also assume that this search yielded a recovery of 68 grams of methamphetamine in the 24-year-old’s bedroom. Also, imagine that within the same bedroom, there are several wire transfer receipts showing multiple wires of $2,999 from California to Mexico.

Within most state systems, the 24-year-old would be charged with a possession of controlled substances charge, also alleging that the offender had intent to deliver the drugs to others. (While states use different wording and nomenclatures to describe offenses, they mostly organize their drug offenses by substance used, weight and whether the drugs were meant for personal use or whether they were meant for delivery.)

In the federal system, the same conduct would likely be charged as possession of a controlled substance with intent to deliver under 21 USC 841. (There is a possibility of a money laundering charge under 18 USC 1956 or violation of a currency reporting requirement under 31 USC 5313 and 5324.) Obviously, the drug charges seem to sound the same under either system. However, the similar-sounding names and the similar criteria do not indicate similar approaches to bail.

In the state system, the 24-year-old is likely to be subject to a monetary bond that serves as assurance that he will appear in court. In these circumstances, a loved one would likely seek a bail bond from a licensed bondsman who will provide a bond in exchange for a fee. Thus, in the state system, loved ones are likely to seek a bondsman before they look for a lawyer. (Some states allow attorneys to act as a bondsman. Nonetheless, monetary security is the name of the game if they want to get out of jail while charges are pending.) In other words, most state systems assume that money provides incentive for arrestees to show up in court. Furthermore, in state cases, drug cases are subject to the same bond considerations as all other charges, and are not subject to any additional scrutiny.

On the other hand, the federal system does not generally use monetary security as a basis for pretrial release. In federal courts, defendants are either detained or released.

In state cases, the bond is usually set at a preliminary bail proceeding after arrest, or by a judge who issued an arrest warrant (in cases where the police officer or agent sought a warrant to arrest before making that arrest). For example, a bail judge might order that the 24-year-old could be released upon putting up a $10,000 bond.

In federal cases, after someone is arrested, that person is brought before a federal magistrate for an initial appearance and detention hearing under Rule 5 and 5.1 under the Federal Rules of Criminal Procedure. In this situation, the judge would decide whether probable cause exists for the detention of the defendant and whether any set of conditions could reasonably ensure appearance by the defendant and safety to the community. The most striking difference between federal initial appearance/detention hearings and state bail hearings is the fact that drug defendants in the federal system are presumed to be a flight risk and a danger to the community. This means that defendants are not presumed to be entitled to release. In other words, drug defendants in federal cases have to overcome a barrier to be released.

As stated above, most federal cases do not give regard to monetary security/collateral. This means that loved ones of most federal defendants will not be looking for a bondsman. Rather, they should concentrate on establishing stability and reliability, and be prepared to testify at the detention hearing that the defendant will appear in court and that they will take steps to ensure appearance.