One of the highest priorities of a newly charged defendant in a criminal case is to be released on bail. Being released on a misdemeanor charge if you have no prior criminal record is relatively simple and inexpensive. However, having a previous criminal record or being charged with felonies will make release problematic.
In North Carolina, there is a big difference between bonding out of custody in state cases versus federal cases. In state cases, within a few hours of arrest, a magistrate will set the amount of bond which must be paid for the defendant to be released. That amount can be paid in full to the clerk of court or arrangements can be made to pay a bondsman 10-15% of the total to be released. A bond amount must be set unless the charge is a capital offense.
Once the initial bond is set in a state case, a defendant who is still in custody is entitled to a bond hearing before a District Court judge where the judge would determine whether to decrease the bond, leave it the same, or increase it. If the offense is a felony and the defendant is indicted on the charge, the defendant is entitled to one additional bond hearing in Superior Court where he can make another attempt to have the bond reduced. At a bond hearing, the two factors the court will consider are whether the defendant is a flight risk and whether he or she constitutes a danger to the community if released.
In federal court in the Western District of North Carolina (Charlotte, Asheville, and Statesville Divisions), a newly arrested defendant is entitled to one “detention hearing”, where the issue is whether the court can set conditions that will reasonably assure the appearance of the defendant and the safety of the community. If so, the court will order the defendant released on a set of conditions that will include the setting of an unsecured bond, i.e., one which does not require the actual payment of the bond. However, the bond would become due and payable if the defendant violates his or her release conditions.
Federal law provides that in cases where defendants are charged with certain serious drug, gun, and violence offenses, it is presumed that no set of release conditions will reasonably assure the appearance of the defendant and the safety of the community. In such a case, the court will order the defendant to be detained pending trial unless the defendant can rebut the presumption of detention.
Being released pending trial on state or federal charges is very important not only to the defendant’s ability to maintain employment and preserve family ties, but also to his ability to assist his criminal defense attorney in preparing for trial. An experienced criminal defense attorney is best able to present information to the court to maximize a defendant’s chances of release. It is inadvisable for a defendant to represent himself at a bond or detention hearing.