Resource FAQs: Pretrial Policy

The pretrial process is initiated at the point of arrest or alternatively citation or summons. It continues until adjudication of the pending charge or case. See the figure below for an overview of the pretrial process. 

Alternatively, if a citation or summons is used the booking and release decision process can be skipped with the summons or citation serving as a promise to appear in court.

Most people think about bail as one of two things - the pretrial release process as a whole, or the amount of money that courts set as a secured or unsecured condition of pretrial release. However, the term “bail” is frequently defined as something very specific in state statute, meaning that this phrase can mean something different in every state and can even have multiple definitions in a single state.  

For example, California Penal Code § 1299.01 defines bail as “a bail agent, a bail permittee or a bail solicitor licensed by the Department of Insurance.” Idaho defines bail as the “monetary amount required by the court to release the defendant from custody and to ensure his appearance in court as ordered.” 

In Delaware, bail can be 1) a conditions of release bond, 2) a conditions of release bond not guaranteed by financial terms, 3) a conditions of release bond guaranteed by financial terms, or 4) a conditions of release bond guaranteed by financial terms and secured by cash only. 

Maine’s definition refers more to bail as the pretrial process stating that bail “means the obtaining of the release of the defendant upon an undertaking that the defendant shall appear at the time and place required and that the defendant shall conform to each condition imposed in accordance with section 1026 that is designed to ensure that the defendant shall refrain from any new criminal conduct, to ensure the integrity of the judicial process and to ensure the safety of others in the community.”

Illinois is the only state to entirely eliminate financial conditions of release with implementation of the Pretrial Fairness Act which took effect Sept. 18, 2023. This includes secured financial conditions that required defendants to post money with the court and unsecured financial conditions, where no money was required to be posted with the court, but a dollar amount was set in the bond. 

Every other state authorizes courts to order release on a cash or other secured bond in at least some instances. This is the case even in jurisdictions such as New Jersey and Washington, D.C., that are widely known for moving away from reliance on financial conditions of release.  

A couple other states have enacted laws limiting, but not eliminating, financial conditions of release. For additional information see NCSL’s page on Financial Conditions of Release.

No. A bail agent, also referred to in states as a surety bondsman or professional bondsman, is a person who, for financial gain, guarantees a defendant’s appearance to the court and promises to pay the full financial amount of bond if the defendant fails to appear or otherwise triggers forfeiture. 

Five states explicitly prohibit bail bondsmen or prohibit third party sureties from making a profit. These are Illinois, Kentucky, Massachusetts, Oregon and Wisconsin. In the remaining states, most have varying licensing requirements and industry regulations. 

No. There are no states that currently require courts to comply with the recommendations of a risk assessment tool. In fact, some states have codified provisions explicitly stating that courts can consider the results of an assessment, but that the assessment shall not be the only factor considered when making a release or conditions determination.  

Some states do require that courts at least consider results of an assessment tool or encourage use of a tool, but no state replaces judicial discretion with the results of an assessment tool. For more information on state laws governing the use of tools see NCSL’s Pretrial Risk Assessment Tools page.  

For information about risk assessment tools generally see Pretrial Risk Assessment Tools: A Primer for Judges, Prosecutors and Defense Attorneys.

Five. Alaska, Illinois, Kentucky, New Jersey and Washinton D.C. all have jurisdiction-wide pretrial services agencies that provide courts with information to inform release and pretrial conditions decisions. These state agencies also supervise defendants released on conditions that require monitoring of some kind. 

Other states fund or encourage the utilization of pretrial services agencies at the local level.

No, if you paid a commercial surety to satisfy the financial condition of a bond. If money was posted directly with the court, it is possible that money will be returned at the conclusion of the case; however, many states have laws authorizing administrative fees. Additionally, if there is a conviction, bond can also be used to satisfy restitution, fines or court fees. For more information on utilizing this money for restitution see NCSL’s victims’ pretrial release rights and protections page.

Nonappearance for scheduled court dates while a defendant is on pretrial release can result in revocation or modification of bond, issuance of a warrant, arrest, detention, forfeiture of money bail, suspension of the right to drive or new criminal charges.  

Failure to pay or respond by appearance to a criminal citation or summons can also result in court actions including default judgment being entered, required appearance in court or suspension of the right to drive. Failure to appear at a hearing set following failure to pay a citation or summons in the time prescribed by the citation, can also result in issuance of a warrant, detention or other sanctions. 

For a review of statutory responses to failure to appear visit NCSL’s database on responses to failure to appear. To learn more about how these responses or changing visit NCSL’s resource on new approaches for addressing court appearance.

It depends. Every state has different legal requirements and the timing isn’t always clearly specified in state law. For a review of these laws visit NCSL’s brief on right to counsel during the pretrial process.