In the federal criminal justice system defendants are either remanded to custody or permitted to be released on their own recognizance pending adjudication of the charges leveled against them. This decision is usually made by a U.S. Magistrate Judge and is based on the defendant’s perceived threat to the community and flight risk.

Those deemed to be a low risk are generally permitted to remain in their homes while fighting their case, awaiting sentencing, or awaiting notice of what prison to turn themselves into after sentencing (i.e., self-surrendering). This is commonly referred to as self-surrender since the defendant eventually has to surrender themselves to the federal prison where they will eventually start serving their term of imprisonment.

Those deemed to be a risk to the community or a flight risk are remanded to custody and not permitted to turn themselves in. For those subjected to remanded custody, they are simply housed in a county jail or federal detention center during the pre-trial, trial, and sentencing phases. Following sentencing, if they are sentenced to a term of incarceration, they are then transported by the U.S. Marshals Service to the prison where they will start serving their federal sentence.

Below is some actionable information concerning each type of custody, including how to prepare for federal prison if you are afforded self-surrender status.

Who decides if I self-surrender or if I’m remanded?

In most federal criminal cases it is the U.S. Magistrate Judge assigned to the case who decides if a federal criminal defendant should be released on their own recognizance or remanded to custody. While there is a statutory presumption that release be granted, this isn’t always the case.

The judge will hold a bond hearing in which both the assistant United States attorney assigned to the case and defense counsel can present their sides. If bond is denied, the defense can appeal the decision. It should be noted that prior to this hearing the Pretrial Services will speak with you and your family in an effort to write a brief report which either recommends or opposes self-surrender status.

What happens after the decision is made?

After the determination, if you are remanded to custody, you will be taken back to the jail that housed you prior to the bond hearing and will remain in official custody pending the outcome of the case. On the other hand, if you are granted self-surrender status you will be released either on your own recognizance (promise to return) or an unsecured bond (a bond which must be paid if you violate the terms of your conditional release; this type of bond often requires collateral, such as property, to be used).

While different judges, defendants, and fact situations will result in differing conditions of pre-trial release (if permitted at all), what is most likely to occur is that you will be permitted to live at your home with an ankle monitor affixed to track your movements. You will also be assigned a Pre-Trial Release Officer with whom you’ll have to report to from time to time to review your activities, take drug tests, and the like.

There are a variety of forms of pre-trial release which depend on the jurisdiction in question. Some jurisdictions require defendants on pre-trial release to live at a secured center (e.g., a halfway house or Residential Reentry Center) where they are permitted to work during the day, but must return to sleep by a certain time at night. For all intents and purposes, this is much like the traditional halfway house model that federal prisoners engage in during the final portion of their term of imprisonment.

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While it can be tempting to take advantage of pre-trial release, if you are worried about following the rules of the pre-trial release agreement, it can sometimes be the best choice to stay in jail and receive the jail credit, which will be applied to your eventual sentence. But if you can abide by the rules set forth in the pre-trial release agreement, there are several benefits to being on pre-trial release. One of which is a three point reduction in your custody and classification score. This reduction can result in you going to a lower security level prison, but it depends on a number of factors.

How to reduce your sentence

If you have been allowed pre-trial release, outside of simply following the rules and getting along with your pre-trial services officer, treatment is the best thing you can do to help receive the lowest possible sentence. If you are charged with a sex-related offense, go to treatment. The same is true with drug offenders, domestic abusers, and those who engaged in their offense due to anger management problems. It can be very helpful to show the judge that you took proactive steps on your own to get some help. If your charge doesn’t fit into these categories, still get psychological help, and have the treatment provider write a glowing letter of how hard you have worked to correct your demons. This is essential when the judge is reviewing your case to determine an appropriate sentence.

If you are locked in a county jail awaiting sentencing the best thing you can do is follow the rules. By not getting in trouble while in jail you are making sure the judge won’t start off with a poor impression of you. While the judge probably won’t hear about this anyways, he or she could and it is best anything they hear is positive. Second, treatment. If your jail or detention center offers any types of treatment, sign up and complete it. Third, sign up for any types of correspondence treatment/courses that your jail allows. While most jails don’t permit true correspondence courses, many do permit free Bible studies and the like, which result in the awarding of certificates upon program completion. While not a lot, having a stack of such certificates can show the judge that you’re invested in turning your life around. If nothing else, it shows the judge that you’re willing to put in the effort and gives your defense attorney something to point to when there isn’t much else positive around to support a lower sentence.

Contact us for more information on self-surrender vs. remanded custody, or other areas of pre-sentencing in the federal justice system.