Bonds, Pretrial Release & Sentencing Guidelines – The Many Differences Between State and Federal Court

Although the general concepts and theories for prosecuting or defending a criminal case are the same, criminal procedure in federal court is significantly different than in state court.  There are different rules on case progression, different rules regarding pretrial release and more restrictive guidelines for criminal sentencing.

Every state has both state courts and their local federal court.  Often times there are overlap between the jurisdictions.  In other words, it is possible to be prosecuted in both state and federal court for the same criminal act.  This is one of the most difficult things to explain to a new client, as most people have an incorrect understanding of what double jeopardy is in a criminal case.

The states that make up the United States of America are all sovereign states; they have complete power over their own state matters, and thus control over prosecutions for criminal offenses which occur within their borders.  The exception to this is when the crime committed is a violation of federal law.  In this situation, it is possible for there to be criminal consequences at both the state and federal level.  The reason punishment for criminal conduct can take place in both state and federal court without triggering the double jeopardy clause is because state governments and the federal government are considered to be separate sovereigns, having separate sovereign powers.

Another misconception is that federal court trumps state court, or that federal court is more serious.  State court prosecutions are just as serious as federal court prosecutions.  In fact, most murder cases are tried in state court, as most homicides do not involve an issue of federal law.  You see most of the overlap between state and federal prosecutions in cases involving gun charges or drug charges.

Pretrial release is also a way in which federal court differs from Nebraska state court.  Typically, if someone is charged with an offense in state court, a bond will be set at their first court appearance.  If the individual is able to post bond, then that person will be released pending litigation of their criminal charges.  In other words, the person gets to live at home while they are being prosecuted.  In federal court there is pretrial release; however, there are no bonds.  Either you get pretrial release or you don’t.  Instead of a bond setting hearing, in federal court there is a detention hearing.  The magistrate judge either authorizes pretrial release or he doesn’t.

It is true that the federal sentencing guidelines often result in harsher punishments being given out at the federal level, but felony charges are serious whether charged in state or federal court.  When facing criminal prosecution, it is important to take into account potential consequences at both the state and federal level, as well as discuss all options with your attorney.