Should I post bail? What is a federal hold?

After charges have been filed against a person, a judge will then determine if a person is eligible to be released. If the court determines that the arrestee does not pose a significant risk of danger to herself or others, then the court will determine a bond amount. The bond amount is based on the charges filed. To learn more about bonds specifically, see https://banksbrower.com/2019/09/16/pay-a-bond-or-pay-a-lawyer/.

A judge looks to different factors to decide if the court should release a person on bail. Indiana Code § 35-33-8-4 states:

“(b) Bail may not be set higher than that amount reasonably required to assure the defendant’s appearance in court or to assure the physical safety of another person or the community. . ..In setting and accepting an amount of bail, the judicial officer shall . . . take into account. . .:

(1) the length and character of the defendant’s residence in the community;

(2) the defendant’s employment status and history and the defendant’s ability to give bail;

(3) the defendant’s family ties and relationships;

(4) the defendant’s character, reputation, habits, and mental condition;

(5) the defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring the defendant to trial;

(6) the defendant’s previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;

(7) the nature and gravity of the offense . . .;

(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;

(9) that the defendant is a foreign national who is unlawfully present . . .; and

(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring the defendant to trial.

The state court will take these factors into consideration when determining the bond amount.

Bond review hearings are different in federal court than hearings in state court. In state court, the judge will go through the aforementioned procedure: determine if bond is appropriate and determine how much bail should be. In state court, if the judge says that release is appropriate and determines the bond amount, the person can then pay the bail. The person can remain out of custody until the court determines otherwise.

However, this process can be different if a federal hold is in place. A federal hold is when the federal government has an interest in a person, potentially to bring charges against them. If a federal hold is in place when a person wants to post bond on a state case, that would not be a good idea. If a state still has charges pending against a person, but there is a federal hold in place, the person will not be released even if the bond is posted on the state case. This is because the bail posted would go towards the state case, not the federal case. Because of the federal hold, the person will not be released.

There is no law that says how long a federal hold can remain if state charges are still pending against the person. However, if the state drops the charges and the person remains in jail, the person is considered in federal custody. A person can be in federal custody even if they are in a state prison. A person is only considered in federal custody if the state is no longer pursuing charges against the arrestee and the only reason the person is still in prison is because of the federal hold.

If a person is in federal custody, federal law 18 USC § 3161(b) requires that the federal government file charges within 30 days of the day of arrest, the service of a summons, or the day that a person is considered in federal custody. As mentioned earlier, a person is in federal custody if there are in jail solely because of a federal hold (and no state charges are pending) or they were arrested by a federal agency. This time limit can be extended by 30 days.

Should you or your loved one be facing a criminal offense, give the experienced Indianapolis Criminal Lawyers at Banks & Brower, LLC a call today at 317.870.0019 or email us at info@banksbrower.com. We are available 24/7/365.