What Is a Federal Detention Hearing
You got arrested on federal charges. Within 48 hours, you're standing in front of a magistrate judge. And now you're about to learn something that most people don't understand until they're living it - there is no bail in federal court. Not the way you think. No bail amount to post. No bondsman to call. No 10% to scrape together from family. The federal system doesn't work that way.
Instead, there's a detention hearing. And for certain charges - drug trafficking, firearms offenses, crimes of violence - the law starts with a presumption that you should stay locked up. Not that the government has to prove you're dangerous. That you have to prove you're not.
Welcome to Spodek Law Group. We handle federal detention hearings across the country. This article explains exactly what happens in these hearings, why the system is stacked against you before you walk into the courtroom, and what can actually be done about it.
The Presumption Trap - Why the Burden Is Already Against You
The Bail Reform Act of 1984 created something called "rebuttable presumptions." Here's what that actualy means in practice. For certain categories of federal charges, the law presumes that no combination of release conditions can reasonably assure your appearance at trial or protect the community. The burden flips. Instead of the government proving you should be detained, you have to prove you should be released.
Which charges trigger this presumption?
- Drug offenses carrying a maximum sentence of 10 years or more under the Controlled Substances Act
- Firearms offenses under 18 U.S.C. § 924(c)
- Crimes of violence
- Offenses involving minors
- Terrorism charges
If your indictment includes any of these, you walk into that hearing with the deck already stacked.
Three out of four federal defendants are detained pretrial. 76% when you include immigration cases. 66% even when you exclude them. This isn't bail court. Its detention court.
The government has two standards it can use to keep you locked up. To detain you for flight risk, prosecutors must prove by a preponderance of the evidence - more likely then not - that no conditions can assure your appearance. To detain you as a danger to the community, they need clear and convincing evidence. But in presumption cases, you dont get the benefit of those protections. The presumption satisfies both burdens until you produce evidence to rebut it. And you have to do this within 3 to 5 days of arrest, from a jail cell, probly without having gathered a single document or contacted a single witness.
What this means for you: the hearing isn't a formality. It's one of the most important moments in your federal case. And it happens before most defendants are remotley ready for it.
What Actually Happens in Those 3-5 Days
Look, we understand the timeline is brutal. You're arrested. You're brought before a magistrate for an initial appearance - usually within 48 hours. Then the detention hearing happens within 3 to 5 court days unless your attorney requests more time. Five days to prepare for a hearing that determines whether you spend months or years in jail awaiting trial.
Before that hearing, a Pretrial Services Officer will want to interview you. This is critical. The Pretrial Services Officer works for the court - not for you, not for the prosecutor. Their job is to gather information about your background, your ties to the community, your employment, your criminal history, your family situation. Then they write a report for the judge. That report includes a recommendation: release or detention.
Heres the thing most people miss. That recommendation often controls the outcome. By the time you step in front of the judge, theres already a written document saying whether you should get out or stay in. Judges rely heavily on these reports. And you might not even have a lawyer present during the Pretrial Services interview.
The hearing itself operates under different rules than you'd expect. The Federal Rules of Evidence dont apply. Hearsay is admissable. The government can present agent summaries instead of calling actual witnesses. An FBI agent can stand up and tell the judge what a confidential informant allegedly said, and you cant cross-examine the informant. This hearing - the one that determines whether you lose your freedom before conviction - has fewer procedural protections then a traffic ticket.
The magistrate judge considers four categories of factors under 18 U.S.C. § 3142(g):
- The nature and circumstances of the offense charged - violent or nonviolent, involving drugs, weapons, or minors
- Your history and characteristics - family ties, employment, financial resources, length of residence, community ties, past conduct, criminal history, record of court appearances
- Whether you were already on probation, parole, or pretrial release when arrested
- The nature and seriousness of the danger you pose to any person or the community if released
These factors matter. But they matter within the framework of presumption. If your charge triggers the presumption, you're not starting from neutral.
Fighting Back - How to Actually Get Released
The presumption can be rebutted. The First Circuit held in Jessup that to overcome the presumption, a defendant must produce "some evidence." Not proof beyond a reasonable doubt. Not even a preponderance. Some evidence. The bar is lower than people think. But meeting even that bar requires preperation that most defendants cant do from custody.
Every day you spend detained makes the next hearing harder. From jail, you can't help your lawyer gather evidence. You can't meet with witnesses. You can't maintain the employment that demonstrates community ties. You cant attend the family events that show you have people depending on you. Detention creates a cascade - the longer your detained, the weaker your release arguments become, which makes detention more likely, which makes your arguments weaker still.
Todd Spodek has successfully argued federal detention hearings. What works? Evidence of strong community ties. A third-party custodian - a family member or responsible person who appears in court and commits to supervising you. Documentation of employment, property ownership, length of residence. Letters from family members. Evidence that you've appeared at every court date in prior cases. These arguments work when their prepared properly. They fail when their thrown together in a jail conference room two hours before the hearing.
Most defendants don't know this: if the magistrate orders detention, you can appeal to the District Judge. The District Judge conducts what's called de novo review - that means a fresh look at everything, with no deference to the Magistrate's conclusions. The District Judge makes an independent decision. We've seen detention orders reversed at this stage when new evidence was presented or arguments were made more effectively.
Release doesn't mean total freedom. The judge can impose conditions:
- GPS monitoring (which costs about $4 per day compared to $92 per day for detention)
- A third-party custodian who takes responsibility for your compliance
- Travel restrictions and passport surrender
- Curfew
- Drug testing
- Regular check-ins with Pretrial Services
These conditions are restrictive - but their not prison. And they let you actually participate in your own defense.
What matters is showing the judge that some combination of conditions can adequately address flight risk and community safety. That requires preparation. It requires evidence. It requires someone who knows how these hearings work and what arguments move magistrate judges.
When Your Ready to Fight
86% of federal defendants released pretrial commit no violations and appear at every court date. The system knows this. Released defendants overwhelmingly succeed. Detention costs taxpayers $92 per day. Pretrial supervision costs $11. GPS monitoring costs $4. The government fights for detention not because release doesn't work, but because the law lets them fight for it.
Spodek Law Group handles federal detention hearings. We know what preparation is needed before that 3-5 day window closes. We know how to work with Pretrial Services, what evidence to gather, how to present a third-party custodian, and when to appeal to the District Judge.
If you or someone you love is facing a federal detention hearing - or if federal charges are coming and you want to be prepared - call us at 212-300-5196. The consultation is free. The hearing is coming in days, not weeks. Early preparation is the difference between waiting for trial at home with your family or waiting in a federal detention facility.
Were here when you need us.
