Resource Glossary: Pretrial Policy

First appearance is the first point after initiation of a case that the judiciary is involved, advising of and protecting a defendant’s constitutional rights, including preventing unconstitutional detention. Every state requires first appearances to be prompt, with laws specifying an appearance in court “promptly,” “without unnecessary delay,” “as soon as practicable” or within a specified time frame.  Also known as arraignment, presentment, 48-hour hearing, or preliminary appearance. For more information about content and timing see NCSL’s brief on first appearance timing. 

The term bail is frequently defined very specifically in state statute. This phrase can mean something different in every state and can have multiple definitions in a single state. Commonly, statutory definitions refer to bail as the entirety of the pretrial release process or the amount of money that courts set as a secured or unsecured condition of release.  

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 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.” 

A bail schedule is a list of pre-determined amounts of money that can be required as a financial condition of pretrial release. Some state courts have found it unconstitutional to rely on a bail schedule without consideration of individual circumstances of the defendant.  

Scheduled bail amounts are addressed by state statute in a couple of different ways. In some instances, a mandatory minimum bail amount is assigned for specific charges. Statutes also require courts to adopt a bail schedule. At least two states have mandated adoption of a uniform statewide bail schedule instead of leaving the determination of amounts up to local courts.  

Other states have specifically moved away from the utilization of bail schedules in favor of requiring more individualized release and conditions determinations, however, at least one state has allowed continued use of a schedule in some instances if it would result in a timelier release of a defendant. 

State law provides for various types of pretrial release or what is generally known as bond. Bond is legally defined as a written promise, and a bail bond has been defined as a promise between the defendant and the court, or between the defendant, a surety and the court. 

Bonds can be unsecured and consist of only a promise to appear in court as ordered. Bonds can also include other conditions of release beyond appearance, including secured and unsecured financial conditions and other nonfinancial conditions such as supervision by a pretrial services agency. See also Personal Recognizance Bond, Conditional Release Bond, Unsecured Appearance Bond and Secured Appearance Bond. 

Authorized in most states, these bond agreements require defendants to promise to appear for all court dates but set a financial penalty that is payable if the defendant fails to appear. No upfront monetary security is required for release. 

Authorized in most states, secured bonds include promises to appear between courts and a defendant with a financial condition imposed on a defendant upfront in order to ensure appearance or public safety. The various types of secured bonds include: 

• Surety bonds can be referenced generally in state law or broken down into two categories—commercial surety bonds and uncompensated surety bonds. 
  • Commercial surety bonds require commercial bail bond companies to sign a promissory note to pay the full amount of the financial condition if the defendant violates conditions. The commercial surety charges the defendant a nonrefundable percentage fee for this service, usually a maximum of 15% of the amount or a specified dollar amount. Commercial sureties are prohibited in Illinois, Kentucky, Massachusetts, Oregon and Wisconsin. 
  • Uncompensated surety bonds are those in which an organization or individual signs the promissory note to ensure the financial condition without profit. Uncompensated sureties could include family and friends or community bail funds. 
• Cash bonds can be broken down into two categories—full cash bonds or deposit bonds. In both instances, defendants post money with the court that is returned to the defendant after adjudication if they don’t violate conditions of release. State law authorizes administrative fees to be deducted from the amount returned in some states. 
  • A full cash bond requires the defendant to post the entire financial condition set by the court in cash. 
  • Deposit bonds require a defendant to pay a percentage of the full amount of the financial condition set by the court, often 10%. Some states specifically authorize deposit bonds in statute, but the practice can also be found in states where statutory language is silent and only references cash bonds generally without differentiating between the two types. 
• Property bonds, or collateral bonds, require defendants to post property valued at the full amount of the financial condition with the court. Authorized in most states, they can require real property or other collateral such as U.S. savings bonds, state-issued bonds, local government bonds or other kinds of specified personal property. 

Deflection programs occur before arrest or prior to initiation of a law enforcement or other justice system contact. These programs generally provide a path to treatment for individuals with mental health or substance related needs with the goal of averting the need for an emergent response from law enforcement or health services. Programs typically involve law enforcement, peer support specialists, recovery coaches, clinical staff, case managers or social workers. For more information, see NCSL’s Deflection and Diversion Primer.  

 A citation is an order issued by law enforcement that releases a person on a promise to appear in court or pay a fine. Citations provide an alternative to booking and jail. Every state statutorily authorizes citation in lieu of arrest with some allowing their use for felony offenses in addition to misdemeanors. See also Summons in Lieu of Warrant.  

Statutory authorization for law enforcement, jail staff, pretrial services officers, commissioners or magistrates to release a defendant prior to their first court appearance. This includes law enforcement use of citation in lieu of arrest. See also Citation in Lieu of Arrest. 

Pretrial diversion programs are post-arrest interventions that occur at some point prior to final entry of judgment. Programs can take place before charges are filed, before first appearance or before adjudication. Successful completion of these programs results in dismissal of charges and in some instances clearing of associated records of the case or arrest. Programs authorized by legislation are typically administered by prosecutors or court officials. For more information, see NCSL’s Deflection and Diversion Primer.  

Jails are generally operated by local sheriffs while prisons are under the purview of state corrections departments. In 43 states, jails are locally operated. In seven states, the state oversees a combined jail and prison system. 

Jails house pretrial detainees and people who have been convicted of lower-level crimes. In most states, individuals convicted of a misdemeanor will be incarcerated in a local jail. These offenses typically carry a sentence of under one year of incarceration. If someone is sentenced for more than a year, they typically serve that time in a prison. For more information, see NCSL’s misdemeanor sentencing trends website. 

About 70% of people in jail are held pretrial, awaiting trial or other court action on their case.  

Pretrial risk assessment tools are empirically-based tools that can be used as part of the release decisions. Assessments use risk factors and protective factors to provide an estimate of the likelihood of appearance in court or rearrest during the pretrial period. Judges retain judicial discretion with pretrial risk assessment tools. No state requires courts to adhere to the results of a pretrial risk assessment and some state laws specifically require that courts consider other factors.  

Some state laws require the adoption of a risk assessment tool and mandate statewide use for most or all defendants. Other states require courts to utilize risk assessment tools, if they exist, but do not address adoption of a tool on a statewide basis. Another set of laws encourage or authorize the use or consideration of risk assessments but do not mandate their consideration or statewide establishment.  

States also regulate how the tools are used. This includes regular validation of the tool; requirements that the tool be free from bias; and that documents, data, records and use be made publicly available.   

State and federal constitutions, state statutes, court rules and case law all impact pretrial policy.  

State law is one piece of the puzzle that makes up the legal framework for pretrial release policy, which governs the eligibility and conditions of release of people after arrest. 

State constitutions and court rules also guide local pretrial practices. While practices vary from jurisdiction to jurisdiction, all must fall within the state legal framework created by constitutions, statutes and court rules. In every state, the law creates a minimum standard that must be observed. 

While practices in local jurisdictions must meet that minimum standard, there are some that exceed this threshold by pursuing best practices that maximize release and liberty while maintaining public safety.  

For more information on evaluating pretrial law see the Guidelines for Analyzing State and Local Pretrial Laws by Tim Schnacke.  

The primary responsibilities of pretrial services programs are to evaluate and provide information on defendants to officials charged with releasing them, and to supervise defendants on pretrial release. Pretrial services also serve as a resource for screening defendants for needs and linking them to appropriate, voluntary treatment and services. Pretrial services can also provide proactive supports such as court reminders or providing assistance with finding reliable childcare or transportation.  

A summons is an official notice requiring a person to appear in court. A summons in lieu of warrant allows an individual to voluntarily appear in court without necessitating an arrest and time in custody. See also Citation in Lieu of Arrest.