Bail: An Overview of Federal Criminal Law (CRS Report for Congress)
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| Release Date |
Revised July 31, 2017 |
| Report Number |
R40221 |
| Report Type |
Report |
| Authors |
Charles Doyle, Senior Specialist in American Public Law |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
This is an overview of the federal law of bail. Bail is the release of an individual following his
arrest upon his promise—secured or unsecured; conditioned or unconditioned—to appear at
subsequent judicial criminal proceedings. An accused may be denied bail if he is unable to satisfy
the conditions set for his release. He may also be denied bail if the committing judge or
magistrate concludes that no amount of security or any set of conditions will suffice to ensure
public safety or the individual’s later appearance in court.
The federal bail statute layers the committing judge’s or magistrate’s bail options after arrest and
before trial. He may release the individual upon his promise to return—that is, on personal
recognizance or under an unsecured appearance bond. Alternatively, the judge or magistrate may
condition the individual’s release on the least restrictive possible combination of individual or
statutory conditions. The statute, however, creates a presumption against release when the
individual has been charged with a serious drug, firearms, or terrorist offense. In the case of these
and other serious offenses, the judge or magistrate may deny release on bail if he decides, after a
hearing, that no set of conditions will guarantee public safety or the individual’s return to court.
The judge or magistrate may also deny the individual bail in order to transfer him for bail, parole,
or supervised release revocation proceedings. Bail is available to a more limited extent after the
individual has been convicted and is awaiting a pending appeal.
Federal law also authorizes the arrest, bail, or detention of individuals with evidence material to
the prosecution of a federal offense. With limited variations, federal bail laws apply to arrested
material witnesses.
Although not specifically mentioned in the federal bail statute, bail is available in extradition
cases under a long-standing Supreme Court precedent which holds 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 Abridged
Overview of Federal Criminal Law, by Charles Doyle.
