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Bail in Federal Drug Trafficking Cases

It may be surprising to learn that in federal drug trafficking cases a person may be held without bail even if that person is not a flight risk.   The hearing, called a “detention hearing,”  occurs usually within five days of the initial appearance.  And at least here in Tucson, one of the busiest federal courthouses in the country,  most hearings last about five minutes, sometimes less, in what may seem to be assembly-line fashion, despite the best efforts of careful and diligent federal judges and magistrates.

The Bail Reform Act of 1984, codified at 18 USC § 3142, permits federal judges to detain without bail persons who, although not flight risks,  are considered   a “danger to the community.” (if released they may commit other crimes and thereby “endanger” the community).  Moreover, 18 USC § 3142(e) contains a “presumption” that persons accused of certain drug trafficking offenses are a “danger to the community” and therefore may be detained without any bond.

Practical Procedure

As a practical matter it may be difficult to overcome this presumption.  Typically the Assistant United States Attorney “proffers” evidence based on the complaint or investigative reports.  In the space of a few minutes the defendant must present contrary evidence to overcome the presumption.  While the Federal magistrates try to be fair and conscientious, the law can and does sometimes suggest mandatory detention even for those who are not flight risks.

And although magistrate detention determinations pursuant to 18 USC §3142 may be appealed to the district judge (or federal appellate courts in some cases), and may be revisited in certain circumstances, an initial negative bail determination  can negatively affect the final outcome of a case.

Detaining for Danger

Michael’s publication “Detaining for Danger Under the Bail Reform Act of 1984:  Paradoxes of Procedure and Proof,”   35 Ariz. L. Rev. 1091 (Winter 1993) has been cited nationally for two decades as an authority on Federal Bail proceedings in drug and firearm cases.

As such, Michael,  has particular experience with and knowledge about federal detention proceedings, often counseling clients and their families to exercise initial patience and forbearance so as to allow adequate preparation for the federal detention proceedings in the earliest stages of the case.