UPDATE (Sept. 18, 2024, 5:23 p.m. E.T.): On Wednesday afternoon, Sean Combs lost his appeal of Tuesday’s bail hearing and was ordered to remain in jail.
The pretrial detention of Sean Combs shows that in federal court, bail is not based on the size of a person’s wallet. On Tuesday, a judge sent the musical artist and producer to jail while he waits for his trial on sex trafficking and related charges. Combs, also known as “Puff Daddy,” “P. Diddy” and “Diddy,” was charged in an indictment by the U.S. Attorney for the Southern District of New York with conspiracy to commit racketeering, conspiracy to commit sex trafficking and transportation to engage in prostitution for conduct going back to 2009.
In federal court, bail is not based on the size of a person’s wallet.
The indictment alleges that Combs “created a criminal enterprise” in which he “abused, threatened, and coerced women and others around him to fulfill his sexual desires.” Combs pleaded not guilty to the charges.
Unlike many state courts, where bail amounts are fixed according to the offense, regardless of a charged offender’s ability to pay, federal courts do not allow a billionaire like Combs to buy his way out of jail. In a cash bail system, a judge sets a sum based on the crime charged, and, if the alleged offenders can pay or borrow the money from a bail bondsman, then they will be released. The money is returned to them if they show up for trial. If they fail to appear, then the money is forfeited.
In some places, for certain serious crimes, such as murder, no amount of bail can secure a defendant’s release. According to the Brennan Center for Justice, cash bail systems have a disparate impact on alleged offenders who have low incomes and are people of color. A disproportionate number of these defendants remain jailed until their trials because of their inability to pay.
In contrast, federal courts apply a statute known as the Bail Reform Act of 1984, which renders wealth irrelevant. The statute requires the judge to conduct an extensive hearing and consider a variety of factors in deciding whether to release a defendant before trial. In general, the default position is release on a bond — that is, a promise to pay a certain sum of money in the future if the defendant fails to appear for trial. That is, defendants pay nothing up front, and owe the debt only if they break the promise to return to court for trial. The advantage of this system over the state cash bail method is that a defendant’s fate is not determined by their ability to pay.
In federal court, a prosecutor must overcome the statute’s presumption of release. This may be done by showing a preponderance of the evidence (more than 50 percent) that a defendant is a risk of fleeing before his trial. Often, a court will consider a person’s access to funds, ease of travel or history with honoring court orders. Ironically, defendants with substantial wealth may be more likely to be detained because their access to quick cash may make it easier for them to flee. Or a prosecutor may demonstrate by clear and convincing evidence that the person poses a danger to the community, such as a history of violence or threats to a witness. If the judge concludes that either of these standards are met — risk of flight or danger to the community — then she may deny bail altogether and order the defendant detained, a polite word for “jailed.” The person then waits in custody until their trial is over.
In Combs’ case, the nature of the charges triggered another provision that creates a presumption of detention. In that situation, the tables are turned, and it is the defendant who must rebut the presumption. Still, no amount of cash can buy one’s way out. The judge still considers whether a defendant is a risk of flight or danger to the community. During Tuesday’s hearing, prosecutors presented evidence that Combs had committed violence against women, had access to weapons, had a history of anger management and substance abuse issues, and had contacted some of the victims and witnesses, who reported being scared of him. Magistrate Judge Robyn F. Tarnofsky ultimately ordered Combs detained on the grounds that he was both a risk of flight and posed a danger to others, noting that “this is a crime that happens behind closed doors, even when pretrial services is monitoring” a defendant on bail. Combs is appealing his detention decision to the district court, which will conduct its own hearing using the same standard. This is clearly a better system than is run by most states. Defendants are not detained simply because they are poor. And people a judge determines are dangerous can’t get out just because they’re rich.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
