Right to Bail and Pre-trial Release Procedures:
The most critical difference between Federal and State Court when it comes to bond, is that the procedure is very different than that in State Court. Many persons charged in Federal Court have been arrested before by State authorities. In most states, including Alabama, there is a Constitutional right to reasonable bail, based upon the charge and other factors, except in Capital Cases.
The right to bail has been abolished in Federal Criminal Cases. Defendants are either released, pending trial, or detained until the case is finished. The Courts look at the nature of the charge, the Criminal Record of the accused, ties to the community, likelihood of flight and other factors, in making that judgement.
In State Court, most Defendant’s find that, because of the overcrowded Criminal Dockets, that their case may be set, and reset, a number of times, before they are required to go to trial or work out a Plea Bargain. Being represented by an experienced, skilled Attorney generally guarantees that the case will be pending for a number of months, if not a year or more. This gives the Criminal Defense Lawyer time to closely examine the State’s case, and witnesses, and gives the accused time to make the crucial decision as to whether to go to trial, or negotiate a Plea Agreement (Plea Bargain). In Federal Criminal Cases, the Defendant is required to Plead Guilty or Strike A Jury, within 60 days of being arrested. All Federal Prosecutions are, by Federal Law, on a fast-track. Federal Criminal Cases can be continued, or reset, only under certain special circumstances. This has the result of giving the accused, and his Federal Criminal Attorney, much less time to make critical preparations for the Federal Criminal Trial, and/or Plea Agreement.
Many State Prosecutors are young attorneys, recently out of law school, seeking to gain Courtroom experience, before moving on to higher paying private-practice. This is commonly the situation, especially on lesser cases such as Drug Charges and property crimes such as Theft or Forgery. While many young Assistant District Attorneys are bright and eager, (I was a State prosecutor for 11 years, trying hundreds of cases) they are obviously less experienced than a Criminal Lawyer with decades of experience. Government cases are tried by the U.S. Attorney’s office. Most Federal Prosecutions are spearheaded by a team of Career Prosecutors, who have all the power and resources of the Federal Government behind them, and can focus it on the accused Defendant. Federal Prosecutors commonly are paid as much as twice as much as State Prosecutors. There are very few rookie Assistant United States Attorneys.
Many Defendants charged in a Federal Case for the first time, have been in State Court before, and may have resolved their State Criminal Case with a Plea Agreement or Plea Bargain. In State Court, if you are the Defendant and a plea deal is made, this agreement is binding on the State Judge. He must follow the agreement in sentencing and penalties. The only exception would be where the State Judge notifies the Defendant, beforehand that he will not accept the Plea Bargain.
In Federal Court, the Judge is not bound by any Plea Bargain between the Defendant and the United States Attorney (the Prosecutor). At the time of entering a Plea, the accused is always told, by the Federal Judge, that the Judge is not bound by the agreement between the accused and the United States, and can give the Defendant up the Maximum Sentence allowed by Law. Despite this many Federal Cases are still resolved by a Plea Agreement, rather than a Federal Trial. It is wise for the accused to closely examine the Federal Criminal Experience of any Criminal Attorney they intend to Retain, whether the Federal Criminal Case will be resolved by Plea or Trial.
In State of Alabama Criminal Cases, until recently, the State Judge, unless following a Plea Bargain, could sentence a Defendant to a Minimum Sentence, or even Probation. He could also give a Maximum Sentence. The Judge did not have to explain his Criminal Sentencing to anyone. Alabama has now adopted Sentencing Guidelines, similar to Federal Sentencing Guidelines, which have been in place since the 1980’s. Under Federal Guideline Sentencing, the Sentencing Judge must take into account a complicated legal formula, based upon numerous factors. These factors are very similar to those used in granting Pre-trial Release, or being Federally Detained. These include: Prior Criminal History, nature of the crime, Victim Impact, remorse, and other factors. In many Federal Criminal Cases, more time, energy and effort are spent by the Federal Prosecutor and the Federal Criminal Defense Attorney, in litigating and negotiating over the final calculation of the Federal Sentencing Guidelines than in the actual work in getting ready for trial. Early decisions made by the accused, before even before trial or plea, can come back to impact his sentencing. For this reason, it is important to discuss the Sentencing Guidelines with your Criminal Defense Attorney as early in the process as possible.