Guidance for Setting Release Conditions

5/13/2015                                                                                                                                                

The majority of defendants charged with a crime are afforded the opportunity to be released prior to trial provided they agree to return for future court dates and do not commit new crimes. The United States Constitution and almost every state constitution specifies that “[e]xcessive bail shall not be required.” Statutes and case law limit additional release conditions that can be imposed by courts to those which ensure the appearance of the defendant and the safety of victims, witnesses and the public. Examples of how some states have codified these provisions include:

The purpose of Delaware’s pretrial release laws are “…to empower and equip the courts to utilize a system of personal recognizance or an unsecured personal appearance bond to be used whenever feasible consistent with a reasonable assurance of the appearance of the accused and the safety of the community…” [11 Del. C. §2101].

In Kansas, the purpose of imposing release conditions“…is to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges or to testify, or pending appeal, when detention serves neither the ends of justice nor the public interest.” [§22-2801].

Within these parameters, about half of states have adopted laws that provide additional guidance to courts when setting conditions of pretrial release.

Twenty one states provide a presumption in favor of releasing defendants on personal recognizance or an unsecured appearance bond. Personal recognizance is a written promise by the defendant to appear in court. For an unsecured appearance bond, the court sets a monetary bail amount but payment is required only if the defendant fails to appear. An additional two states—Florida and Illinois—provide a presumption in favor of releasing defendants on non-monetary conditions. Additional conditions can be imposed only if the court determines it necessary to ensure appearance and safety.

In 16 states, the courts are required to impose the least restrictive condition, or combination of conditions, that will reasonably ensure appearance and safety. Five states—Iowa, Minnesota, Nebraska, North Carolina and South Dakota—do not specifically require the least-restrictive conditions; rather they enumerate one or more conditions of release that courts must consider. Statutes in these states provide that if the court determines release on personal recognizance or an unsecured appearance bond will not reasonably assure court appearance or safety, then the court must require supervision by a person or organization. If that primary condition does not provide adequate assurance, the court can impose a combination of other enumerated conditions that include restrictions on travel, association or residence; house arrest; night reporting; or financial bond.

An emerging area of pretrial policy involves use of risk assessment to evaluate the risk posed by an individual defendant and the likelihood that he or she will commit a new offense or fail to appear. While empirical risk assessment tools are used around the country by local jurisdictions, it is only recently that lawmakers have provided statewide, statutory guidance on their use. Fifteen states—Colorado, Connecticut, Delaware, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, New Jersey, Oklahoma, South Carolina, Vermont, Virginia and West Virginia—authorize courts to consider the results of a risk assessment when making the pretrial release decision. Six States—Delaware, Colorado, Kentucky, New Jersey, South Carolina and West Virginia—require risk assessments for all defendants. Kansas and Oklahoma assessments apply to defendants who will potentially be supervised by pretrial services program. Maine and Louisiana require assessments for domestic violence offenses. In Hawaii and Virginia, assessments are utilized at the court’s discretion.

The chart below provides more information on statutory guidance for setting pretrial release conditions.

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Source: National Conference of State Legislatures, 2015
Westlaw was used to conduct this research.

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Court rule and case law provide further guidance to courts for setting conditions of release. Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.
 
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database. 

Additional NCSL Resources

• Criminal Justice homepage
• Pretrial homepage