Bail: An Overview of Federal Criminal Law

Summary

In a criminal law context, bail is most often thought of as the posting of security to ensure the presence of an accused at subsequent judicial proceedings. Existing federal law affords the judge or magistrate four options which it places in descending order of preference. First, he may release the accused on personal recognizance or under an unsecured appearance bond. Second, if the judge or magistrate concludes that personal recognizance or unsecured appearance bond are insufficient to overcome the risk of flight or to community or individual safety, he may condition the individuals’ release on the least restrictive combination of fourteen conditions. Third, he may order him detained for up to ten days to allow for a transfer of custody for purposes of revocation of bail, probation or parole or deportation proceedings. Finally, under some circumstances, the judge or magistrate may order the accused detained prior to trial.

When a defendant appeals following conviction, the judge or magistrate may release him on condition or recognizance, if the judicial official is convinced that the defendant poses neither a flight risk nor a safety concern and that his appeal offers the prospect of success.

Federal law authorizes the arrest and detention or bail of individuals with evidence material to the prosecution of a federal offense. With limited variations, federal bail laws apply to arrested material witnesses.

Federal bail laws make no mention of bail in extradition cases. The federal courts instead adhere to the principle announced by the Supreme Court over a century ago that “bail should not ordinarily be granted in cases of foreign extradition” except under “special circumstances.”

This report is available in an abridged version—without footnotes, appendices, most of the citations to authority, and some of the discussion—as CRS Report R40222, Bail: An Abbreviated Overview of Federal Criminal Law, by Charles Doyle.