2012 Pretrial Release Legislation Overview

In 2012, 40 states considered 395 bills and resolutions related to pretrial release. Of those, 114 bills were enacted and one resolution was adopted in 33 states. Common issues addressed include eligibility for release, release options and commercial bail. This overview identifies and describes significant actions and trends within this collection of legislation.

This legislative overview is the first in a series that will report on pending and enacted state pretrial legislation through  2013. To find full text of measures referenced, please see additional resources at right. When searching, please note that some of the bills included are carried over from previous sessions. Those measure are identified with a year following the bill number in text. All pieces of legislation included in this overview were active during 2012 state legislative sessions. All legislative action is current through Sept. 30, 2012.  

Pretrial Release Eligibility

This year, 26 states considered 93 bills addressing eligibility for, and restrictions on, pretrial release.  Twelve were enacted. Eligibility for release has limitations set by federal and state constitutions and statutes. Those denied release often are deemed, for various reasons, to be a public safety or flight risk. Defendants who are released on bail, the mechanism by which eligible defendants are released prior to trial, can be released on their own recognizance or with conditions set by a judge to ensure their court appearance. 
 
Five states this year – Delaware, Illinois, New Jersey, New Mexico and Oklahoma – considered seven changes to their state bail constitutional provisions, with none as of yet passing into law. Six of the seven measures would increase restrictions on release, while a proposal in New Mexico (HJR 3) would expand release discretion.  
 
The Delaware bill (SB 256), would deny release for every capital offense, and resolutions in New Jersey (ACR 153, SCR 107) would enable courts to deny release if they find “…no amount of sureties, non-monetary conditions of pretrial release or combination of sureties and conditions would assure the defendant's appearance as required, or protect the safety of any person or of the community, or would prevent the defendant from obstructing or attempting to obstruct the criminal justice process.” Also, Illinois (HCA 29, 2011) would add victim safety as a factor for the court to consider in determining release and setting bail.  (If a resolution to amend the state constitution passes the legislature, it must be put to a vote by the electorate before being ratified.)

Crime Specific Restrictions

In 2012, two types of defendants garnered much of the legislative attention for restrictions on eligibility for release: those charged with domestic violence offenses and illegal immigrants.

Ten states considered 16 bills addressing release eligibility or restrictions for defendants charged with domestic violence offenses.  Three have been enacted. Domestic violence crimes often receive heightened attention during bail determinations due to the proximate nature of the relationship between the accused and the victim. A pending bill in New Jersey would prohibit a defendant’s release while awaiting trial if their arrest was for a second violation of a domestic violence restraining order. In these cases, a Superior Court judge would hold an emergency hearing and make a final decision within 72 hours of arrest. If the defendant is convicted, they would immediately be sentenced to 30 days of incarceration. Another pending measure in Rhode Island (HB 7558) would deny release for those considered habitual domestic violence offenders until a judge determines they are eligible.

Eight states considered 13 measures related to pretrial policy for illegal immigrants, with only Tennessee enacting a new law (SB 2604) so far this year. The Tennessee law enables a clerk of the court to set the amount of cash bail in excess of the normal statutory amounts if the defendant is deemed a flight risk. The law deems someone a flight risk if they are in the United States illegally and are arrested for causing a traffic accident resulting in death or serious injury. New Jersey introduced two bills and one resolution on this issue (ACR 93, AB 1772, SB 678). All of the measures would deny release to illegal immigrants charged with certain crimes, or with a certain criminal history. Similarly, an Oklahoma resolution (HJR 1088) would deny release for serious felony offenders who are in the United States illegally. Additionally, Virginia introduced two bills (SB 460, HB 1060) allowing police officers in certain contexts to inquire about an individual’s legal presence in the country. The bills allow information obtained during questioning to be used by a judicial officer in setting bail or denying release. 

Alternatively, Alabama introduced two bills (HB 226, SB 140) that would repeal the current automatic pretrial detention of illegal immigrants. The bills would remove their automatic designation as a flight risk and make them eligible for bail.  

Rish Assessments for Pretrial Release

Ten states considered 15 measures addressing risk assessments in 2012, enacting eight thus far. Risk assessment tools are used by states and localities to assess whether, and under what conditions, a defendant should be released. Delaware and Kentucky enacted new laws that increase the use of risk assessments for determining release. The Delaware enactment (SB 226) will require that their courts begin using a risk assessment tool for pretrial release by Dec. 31, 2013.  The law includes instructions that the risk assessment instrument be sensitive to the needs of victims. The Kentucky law (HB 54) requires that courts consider the pretrial risk assessment conducted by the state’s pretrial services agency during the release determination. Depending upon the level of risk posed by each defendant, the law provides different bail options.

Washington also considered a risk assessment bill (SB 5056, 2011) that would require the Washington State Institute for Public Policy to develop a validated risk assessment tool for use by their state courts. In addition, it would require the state court administrator to see that technical assistance is provided to courts on its use and implementation.

Offenses Committed During Release

Hawaii, Louisiana and South Carolina considered bills that address release eligibility for defendants who are arrested for crimes while already released on bail for a previous charge. Hawaii (HB 2840) and Louisiana (HB 760) considered bills that would automatically deny release to a defendant charged with certain subsequent offenses while released on bail. The South Carolina General Assembly considered a discretionary option (SB 1060) that allows denial of release for a defendant charged with a violent offense while already out on bail if the prosecutor can prove it is necessary. 

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Pretrial Release Options

States continually examine their pretrial policies to find release options that are safe and effective, and also to eliminate ones that prove not to be. Below are state actions impacting some of the more common and innovative release options.

Non-Monetary Bail

Release on Recognizance (ROR): A person is released on their own recognizance when it is likely they will appear for their hearing with or without additional conditions imposed.  Six states introduced 10 bills addressing ROR; three were enacted.

Louisiana enacted SB 329, a new law that prohibits a defendant's release on their own recognizance if they are arrested for certain crimes including vehicular homicide, cyber-stalking and aggravated kidnapping of a child, among others. Another enactment, Kentucky HB 54 also restricts release on recognizance if the court determines the person is a flight risk or a danger to others.

Illinois considered two bills that would expand the use of ROR. Illinois (HB 5182, 2011) would allow first time, non-violent offenders to be released on their own recognizance unless the court makes a specific finding that some other form of bail is necessary. In addition, Illinois (HB 4128) would make it mandatory for any offender charged with an offense listed in the vehicle code that carries a fine of $150 or less to be released on their own recognizance.

California law currently guarantees ROR for misdemeanor offenses. Two bills (SB 210, SB 1180), were introduced in 2012 that would give judicial officials the ability to consider public safety concerns before allowing ROR for misdemeanor defendants.

Electronic Monitoring: Increased use of electronic monitoring technology, including Global Positioning Systems (GPS), have prompted some states to expand release options. This year 11 states considered 17 bills that address the use of electronic monitoring in pretrial release. Mississippi, the only state to enact an electronic monitoring law (SB 2197) so far this year, reenacted an existing home detention program.

California (SB 968) considered a bill reducing financial bail for certain felony defendants, by up to 75 percent if the defendant agrees to be electronically monitored. In addition, Louisiana considered two bills (HB 1085, SB 649) that would use GPS to track burglary defendants. And in New York, legislators are still considering a bill (AB 10151) that increases the use of electronic monitoring and makes tampering with the device grounds for revoking bail.

Four states – Illinois, Maryland, New Jersey and Tennessee – discussed eight bills that use GPS to track people charged with domestic violence offenses as a condition of their release. A bill introduced in Maryland (HB 1466) would move the responsibility for administrating the GPS pilot program for domestic violence defendants to a different state agency. In New Jersey, pending legislation (AB 321) would establish a four-year pilot program in Ocean County for the GPS tracking of defendants while also developing a method to provide victims with relevant notifications. And in Tennessee, two introduced bills (HB 2272, SB 3464) would require a defendant's participation in a GPS monitoring system as a condition of bail even if the victim chooses not to participate in the monitoring system.

Pretrial Services Programs: Courts can order participation in pretrial services as a condition of release. Pretrial programs offer treatment and supervision of defendants to improve public safety and increase the likelihood they will appear in court. Sixty nine bills concerning pretrial diversion programs were considered in 22 states this year; 23 have been enacted so far.  

Alabama introduced 14 bills addressing pretrial programs in 2012, with seven of them becoming law. Four of those enactments (HB 198, HB 573, HB 617, HB 656) authorized the creation of pretrial programs within specific judicial districts or municipalities. The other enactments (HB 218, HB 672, SB 90) altered aspects of existing pretrial programs in specific jurisdictions. Another measure (HB 423), which did not become law, would have enabled every district attorney in the state to create a pretrial release program within their jurisdiction. Additionally, the bill would have required the Office of Prosecution Services to develop and maintain a pretrial diversion offender database containing information on pretrial defendants and pretrial diversion program participation.

Some states use risk and needs assessments to match defendants with programs designed to lessen the chance they will violate their bail or reoffend. Risk assessments can help determine conditions for release and  appropriate levels of community supervision. Needs assessments help to determine what kinds of programs and services are necessary to address issues that contribute to criminal behavior. A new Hawaii law (SB 2776) requires that state intake service centers conduct pretrial risk assessments of adult offenders. The law defines pretrial risk assessment as “an objective, research-based, validated assessment tool that measures a defendant's risk of flight and risk of criminal conduct while on pretrial release pending adjudication.” The tool will help match the offenders with appropriate programs and services. A new Delaware law (SB 226) requires the collection of data on rates of re-arrest and failure to appear, and for analysis of this data to be provided to courts by the state’s Statistical Analysis Center. Using data analysis can help to refine the accuracy of risk and needs assessments. A pending bill in Illinois (HB 5663) provides that when a person is charged with a domestic violence offense, the court must order a risk assessment of the defendant conducted by a partner of the Illinois Department of Human Services. Based on the risk assessment and other information, the court may order the defendant to be placed on electronic monitoring as a condition of bail.
 
States utilize tailored pretrial programs for specific populations of offenders, such as military veterans and those charged with drug crimes. Connecticut and Florida considered pretrial programs for defendants with substance abuse needs.  Florida enacted a law (SB 186) creating a program that treats people charged with misdemeanor, non-violent, drug possession crimes, while Connecticut (HB 5555) considered enhancements to their drug education program.   

Connecticut (HB 114), Florida (SB 922, SB 977) and Oklahoma considered pretrial programs for military veterans. Oklahoma’s proposal (SB 1222) provided that veterans often need “treatment for mental health or substance abuse problems resulting from military service” and a veterans' treatment program could help to address the challenges they face.

States also looked at programming or conditional release options for domestic violence arrestees. A South Dakota enactment (SB 149) enumerated release conditions that can be imposed on a defendant in order to provide better protection to the victim. These conditions include counseling, not contacting the victim and not using drugs or alcohol. Maryland lawmakers considered the establishment (HB 543) of a victim-offender mediation program. To qualify for the program a court may order the offender to seek treatment or pay restitution to the victims, among other options. 

Monetary Bail

Courts often will impose financial bail as one of the conditions of a defendant’s release. Under this form of pretrial release, courts stipulate a financial amount of cash bond that must be posted by the defendant to assure their appearance at a future hearing. In 2012,  states considered issues such as allowing charitable sureties to post cash bond on behalf of indigent defendants, setting the minimum and maximum amounts of financial bail and requiring financial bail be paid in full for certain offenses.

Michigan (HB 5533) and New York (SB 7752, AB 10640) addressed the ability of charitable organizations to post cash bond on behalf of an indigent defendant. New York enacted a measure (AB 10640) allowing state-certified charitable bail organizations to operate as sureties. Under this new law, charitable bail organizations cannot receive compensation, can only pay bail amounts of $2,000 or less and can only deposit cash bond on behalf of indigent defendants.

A Louisiana enactment (HB 158) increased from $10,000 to $30,000 the maximum financial bail amount that could be set under the jurisdiction of the New Orleans municipal court. In New Jersey, legislators considered a bill (AB 1713) that would increase the percentage of financial bail that must be paid in cash for subsequent charges. Generally, defendants charged with an initial offense are required to pay 10 percent  of their financial bail in cash. Under this bill, for certain subsequent offenses while out on bail including a disorderly persons offense, 50 percent cash payment would be required for the second offense and 100 percent cash would be required for a third offense.

Some states also require financial bail for certain crimes or circumstances. For example, two bills introduced in Mississippi (HB 880, SB 2847) have provisions requiring specific forms of bail (full cash bond, a surety bond executed by a corporation, or a bail bond secured by real property) for people charged with certain offenses including murder, rape, extortion and fleeing or eluding a law enforcement officer. 

Commercial Bail Regulation

One way defendants pay their financial bail is through an arrangement with a commercial surety. Under a commercial bond agreement, a defendant pays a nonrefundable fee to a licensed agent who certifies to the court he or she will be liable for the full cash bond amount if the defendant fails to appear. Sureties, bail bondsmen, recovery agents and their business practices are all subject to state regulations. 

Commercial Bond Business Practices

In 2012, 29 states considered 71 bills related to commercial bond business practices. Of those, 24 have been enacted so far. Bond forfeiture was one of the most actively legislated aspects of commercial bond this year. Bail bond forfeiture results when a defendant misses a court appearance and the bond company is required to pay the defendant’s outstanding cash bail.

California enacted three bills addressing forfeiture. One of the new laws (AB 1529) provides procedures for appealing a motion to vacate bail forfeiture. If the amount in question exceeds $25,000 it will go to the court of appeals, and if less than $25,000, to the appellate division of the superior court. The other two new laws (AB 1824, SB 989) provide for extensions of forfeiture by enabling a court to vacate forfeiture if the defendant appears outside of the regular timeframe under certain conditions.

Louisiana considered three measures related to bond forfeiture, adopting two. Louisiana enacted a measure (HB 190) that now allows bond companies to be served notice of forfeiture at the address they provided to the state department of insurance. Also, a Louisiana bill (SB 291) that did not pass would remove the government’s ability to collect proceeds from bond forfeiture as a civil judgment. The second adopted Louisiana resolution (SR 194) created a select committee to study aspects of commercial bond related to forfeiture, suggesting that Louisiana will continue to explore related policies.

In addition to forfeiture, states considered other regulations including payment plans, cash down payment requirements on bond premiums (the percent of their total cash bail that defendants pay to bondsmen) and restrictions on dishonesty in advertisement. Maryland enacted two measures (SB 489, HB 742) that allow bondsmen in the state to collect bond premiums in installments. If this payment method is chosen, bondsmen must set standards for repayment and keep and maintain records of all collections. In Washington, a bill (HB 1464, 2011) would deem it unprofessional conduct for a bondsman to issue a bail bond without receiving a cash down payment on the bond premium. Meanwhile, the South Carolina General Assembly considered a bill (HB 5054) that would have prohibited bond companies from making any misleading advertisements with respect to “premiums, percentages, or fee offerings.” 

Professional Bail Agents

This year, 52 legislative measures concerning bond professionals were considered in 22 states; 17 have been enacted. In 2012, one area of focus for states on this issue area was licensure. Licenses are often required to operate a bond company, be a bail agent or be a recovery agent.     

In Colorado, an enactment (HB 1266) now requires registration instead of licensing for bail agents. The new procedures continue regulation of bail agents in the state, but now it is the duty of the insurance commissioner to establish expiration and renewal procedures for registrants. The new law also requires that bail bondsmen submit annual reports including information on the number of bail bonds they posted and the outcomes of those bonds. It also requires the Division of Insurance to provide credentials to authorized bail bondsmen in order for courts to identify them as someone with the ability to post bail for profit. 

Wisconsin introduced a bill (AB 567) that would have required the state's Department of Safety and Professional Services to issue rules for the licensure of bail agents, agencies and recovery agents that, at a minimum, would “establish appropriate education, training, examination, and other requirements.” The bill would also authorize the department to discipline applicants in certain circumstances, including when a bail agent intentionally lies on an application for licensure or license renewal. The bill would also have have created an advisory committee to advise the department on these issues. 

Other measures affecting professional regulation include enactments in Louisiana (HB 513) and Tennessee (HB 2442). The Louisiana law increased requirements for their bail bond apprentice program.  The Tennessee law requires an applicant who wants to own a bond company to have had two years of experience as a qualified agent for a professional bond company in good standing.
 

Citation in Lieu of Arrest

Another way state policy affects pretrial populations is by giving police officers or other officials the ability to issue civil citations in lieu of arrest for certain low-level crimes or offenders. Four states considered seven pieces of legislation related to civil citations. Three laws were enacted. According to the text of the two Maryland enactments (HB 261, SB 422), the benefits of civil citation are lower cost, the mitigation of disparate racial impact, the reduction of jail populations and the preservation of the rights of indigents who would not be able to pay financial bail. Because of these new laws, citations can now be issued for certain misdemeanors and local ordinance violations that carry a maximum penalty of 90 days detention, with exceptions for crimes such as failure to comply with a peace officer.  The other enactment, Colorado (HB 1114), prohibits issuing a summons in lieu of arrest for a stalking offense.

In California, lawmakers considered civil citations for juveniles committing misdemeanors. The bill (AB 2089) would authorize a peace officer to issue a civil citation to a minor if they consent, admit guilt and had not committed a previous crime.

Crimes for Committing an Offense While Released on Bail

Three states – Hawaii, New Jersey and South Carolina – considered bills that would make it a crime, in addition to a violation of bail, to commit a crime while released on bail.

The Hawaii bill (HB 2842) would create the crime of committing a criminal offense while released on bail. This new offense would be a class C felony. New Jersey bills (AB 394, SB 202) provide that if a defendant is released on bail and commits certain crimes including murder, manslaughter and kidnapping, they would be subject to increased fines and longer prison sentences than someone who committed these crimes while not on bail. Similarly, South Carolina considered a bill (HB 4917) requiring a five-year sentence enhancement if a defendant is convicted of certain offenses while released on bail.