Can You Get Bond on Federal Child Pornography Charges?

After an arrest for federal child pornography charges, the government will typically file a motion with the court to hold the defendant in custody until the case is resolved. Some offenses (like receipt, distribution, and transportation of child pornography) have a presumption that no conditions of release are adequate, and the defense must put forth evidence to rebut that presumption. Defendants often do win release on bond, but it is usually under strict conditions, such as electronic monitoring, a curfew, and limited internet access.

If you or someone you know is facing federal child pornography charges, visit our main page to learn how we defend these charges.

How a federal detention hearing works

For bail purposes, federal law treats every felony charged under the child exploitation statutes as a “crime of violence” (18 USC § 3156(a)(4)(C)), even when there is no violence alleged. This allows the government to file a motion with the court requesting a detention hearing and to hold the defendant in custody pending trial (18 USC § 3142(f)(1)).

Federal law requires the detention hearing to occur at the defendant’s first appearance in court, but in practice, the defense or the government will usually ask for a continuance. The law allows the defense a continuance of up to five days and the government a continuance up to three days (excluding Saturday, Sunday, and legal holidays). If a continuance is granted by the court, the defendant will remain in custody until the detention hearing.

The rules of evidence that apply in criminal trials do not apply at detention hearings, and judges often rely on agent summaries, hearsay, and proffers from the government.

The ultimate question for the judge is whether any conditions of bond will reasonably assure the defendant’s appearance in court and the safety of the community. It is important to note that a finding that no condition will reasonably assure the safety of the community must be supported by clear and convincing evidence.

The presumption of detention

For certain charges, the law presumes that the defendant should be detained. This includes:

• Receipt, distribution, or transportation of child pornography (18 USC § 2252(a)(1)-(3) and 2252A(a)(1)-(4))
• Production of child pornography (18 USC § 2251)
• Enticement of a minor (18 USC § 2242 and 2243)

The presumption does not apply to possession of child pornography cases. While the government can still move for detention in simple possession cases, it does not get a head start.

The presumption does not mean that the defendant will be automatically detained. But it does mean that the defense must offer some evidence showing that the person will return to court and that the person will not be a threat to anyone’s safety. If the defendant is able to offer such evidence, the government must then prove that detention is necessary.

What the judge considers at the detention hearing

The Bail Reform Act lists four factors (18 USC § 3142(g)):

• The nature and circumstances of the offense, including whether the case involves a minor victim. In virtually every case, the prosecution will argue that there is a minor victim.
• The weight of the evidence.
• The defendant’s history and characteristics. This includes many factors such as the defendant’s character, physical and mental health conditions, family ties, employment, length of community ties, criminal history, history of substance abuse, prior record of appearing in court, and whether the defendant was already under court supervision.
• The nature and seriousness of any danger that the defendant may pose to a person or the community if released.

How the defense wins release

The strongest defense presentation at a detention hearing usually includes live witnesses as well as a reliable plan. Judges typically want to see that someone will be responsible for the defendant to make sure that all conditions of release are followed, and judges often want to ask that person questions about their living arrangements and ability to supervise the defendant. If a judge can be persuaded to give a bond at a detention hearing, it is usually because the defense satisfied these concerns:

• A suitable residence and a third-party custodian: a responsible family member who agrees to supervise the defendant and to report any violations. The custodian must usually live in a home where no children live or visit.
• A plan for internet access: no internet-capable devices or only devices with monitoring software installed, with other devices removed from the home.
• A professional evaluation: a psychosexual or mental health evaluation by a qualified clinician and enrollment in treatment.
• Stability: steady employment, family support, long community ties, and a clean record.
• Facts of the case: for example, no allegation of contact with a child or communication with minors.

Preparing this plan takes time, which is why it matters to involve a lawyer as early as possible. When counsel is hired before an arrest, it is sometimes possible to arrange a voluntary surrender and prepare for the detention hearing in advance.

Conditions of release

Federal law generally requires a host of bond conditions any time there is a minor victim. This includes electronic monitoring, restrictions on personal associations, housing, and travel, no contact with witnesses or victims, a curfew, and no firearms. Courts routinely add the following conditions:

• Supervision by the Pretrial Services office
• No unsupervised contact with minors
• Restrictions on internet usage (often with monitoring software)
• Mental health treatment
• Surrender of any passport

While federal courts use cash bail in some cases, it is not as common as in state courts. Federal courts often use unsecured bonds, which are promises to pay a set amount if the defendant fails to appear. This is because federal courts are generally more likely to deny bond altogether, so the people who are released tend to be very low risk. In fact, only about 1% of defendants released on bond in federal court failed to appear.

Why release before trial matters

Detained defendants are often held in local jails under contract with the U.S. Marshals Service. Often, the condition of these jails can be poor, and it can be difficult for defendants to see family members. Detention also makes it much harder to work with and communicate with defense counsel. Release lets a defendant keep working, support family, take part in the defense, and begin mental health treatment (which can have a big impact at sentencing).

Frequently Asked Questions

Can I be detained if I’m charged only with possession? Yes. The government can seek detention in any federal child pornography case. But possession does not carry a presumption of detention, which makes it easier to get a bond from the court.

How soon is the detention hearing? While the detention hearing is supposed to occur at the first court appearance (usually within a day or two of the arrest), the government or the defense can ask for a continuance (three or five days respectively). The defendant stays in custody while waiting for the detention hearing.

What happens if I am detained? The judge must issue a written order explaining the reasons for detention, and the defendant will be held at a local jail or federal detention facility awaiting trial.

Will I have to post money to be released? Maybe. The court can set a secured bond, meaning that you will have to pay a certain amount to be released. The court, however, may set an unsecured bond, which does not require you to post any funds.

Can a detention order be challenged? Yes. The hearing can be reopened before trial if new information comes to light. The defense can also appeal a magistrate judge’s detention order to the district court judge assigned to the case. A detention order can also be appealed to the court of appeals.

Talk to a federal child pornography defense lawyer

Johnson/Citronberg defends people charged with federal child pornography offenses in federal courts across the country. If you or a family member has been charged or is being investigated, give us a call. The work done before the detention hearing can decide whether you can return home while your case is pending.